ANGELIQUE L. GREENE v. MIDDLESEX COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANGELIQUE L. GREENE and

ANTHONY GREENE, as her husband,

Plaintiffs-Appellants,

v.

MIDDLESEX COUNTY and TOWNSHIP OF

WOODBRIDGE,

Defendants-Respondents,

and

STATE OF NEW JERSEY, NEW JERSEY

DEPARTMENT OF TRANSPORTATION,

and NEW JERSEY TRANSIT,

Defendants.

_________________________________

Argued telephonically October 3, 2014 Decided November 19, 2014

Before Judges Yannotti, Fasciale and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6497-11.

Felicia G. Smith argued the cause for appellants (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, P.C., attorneys; Laura Carney, on the brief).

Clark W. Convery argued the cause for respondent Middlesex County (Convery, Convery & Shihar, P.C., attorneys; Mr. Convery, of counsel and on the brief).

Dennis P. Liloia argued the cause for respondent Township of Woodbridge (Florio & Kenny, L.L.P., attorneys; Nita G. Raval, of counsel and on the brief; Mr. Liloia, on the brief).

PER CURIAM

In this personal injury case, plaintiffs1 Angelique Greene and Anthony Greene (collectively referred to as "the Greenes") appeal from orders granting summary judgment to the County of Middlesex (the "County") and the Township of Woodbridge (the "Township") (collectively referred to as "defendants"). Plaintiffs argue primarily that the judge erred in dismissing their claims because there exist genuine issues of material fact as to whether defendants' acts or omissions were palpably unreasonable.2 We reverse.

On February 8, 2010, Angelique was injured when she tripped on a stop sign partially covered by snow after stepping off a bus. It had snowed four inches on February 6, 2010, and one to two inches of snow were still on the ground. Anthony Greene exited the bus and noticed the stop sign on the ground, partially covered with snow. The stop sign pole was bent, but still standing. When exiting the bus, Anthony hopped over the sign. Angelique exited the bus, but she did not see the sign. She stepped onto the sign, and her foot slid. This occurred at the corner of Port Reading Avenue, a county road, and Trinity Lane, a municipal road in the Township.

On September 12, 2011, plaintiffs filed a complaint against defendants. Defendants later filed motions for summary judgment.

It is uncontroverted that the County installed the stop sign in question on a county road. The County is responsible for maintaining its stop signs on county roads. It does not have a general inspection policy with respect to stop signs. The County relies upon notifications from local authorities that it needs to repair signs. Records are kept if a stop sign is knocked down. The County is also responsible for snow removal on county roads, and county employees had been removing snow in the area on February 3, 5, and 6, 2010.

On occasion, the Township undertakes repairs of county signs. In fact, after the accident, the Township re-attached the sign in question when one of its workers observed that the sign was down. The Township employs several traffic maintenance workers who look for downed signs. Similar to the County, the Township is responsible for snow removal on municipal roads.

There is no evidence in the record as to when the sign fell, how long it had been on the ground, or what caused it to fall. It is undisputed that neither public entity had actual notice of the sign's condition prior to the incident in question.

In reviewing defendants' motions, the trial court found neither the County nor the Township created the condition complained of, neither had actual notice of the condition, and no one knew when the sign fell down. The judge determined that there were disputed facts as to whether the stop sign constituted a dangerous condition and whether defendants had constructive notice that the stop sign had fallen. The court concluded, however, that plaintiffs' claims failed as a matter of law because a reasonable fact-finder could not determine that defendants' acts or omissions regarding the alleged dangerous condition were palpably unreasonable. The court granted defendants' motions for summary judgment and dismissed all claims with prejudice.

On appeal, plaintiffs argue that there exist genuine issues of material fact as to whether defendants' conduct was palpably unreasonable, that the judge incorrectly found that defendants were entitled to discretionary immunity under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and that there are genuine issues of material fact as to whether the Township exercised control over the stop sign.

We initially note that the motion judge never determined that defendants were entitled to discretionary immunity under the Tort Claims Act, nor found that there was a genuine issue of material fact as to whether the Township exercised control over the stop sign. We agree with plaintiffs' contention, however, that summary judgment should not have been granted because there are genuine issues of material fact regarding whether defendants' acts or omissions were palpably unreasonable.

A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The evidence "together with all legitimate inferences therefrom" is to be viewed in the light most favorable to the non-moving party. Ibid. On appeal, the court "employ[s] the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

The Tort Claims Act states

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes

[1] that the property was in dangerous condition at the time of the injury,

[2] that the injury was proximately caused by the dangerous condition,

[3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and

[4] that either

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

[N.J.S.A. 59:4-2.]

A dangerous condition is "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1a. "Palpable unreasonableness is a question of fact." Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 130 (2001). However, "the question of palpable unreasonableness may be decided by the court as a matter of law in appropriate cases." Maslo v. City of Jersey City, 346 N.J. Super. 346, 350 (App. Div. 2002); see also Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993) (holding that the finding is, like other fact questions before juries, subject to a court's determination whether it is reasonable in light of the record). We are convinced that this was not an appropriate case in which the question of palpable unreasonableness could be decided as a matter of law.

Palpably unreasonable conduct is "behavior that is patently unacceptable under any given circumstance" and "it must be manifest and obvious that no prudent person would approve of its course of action or inaction." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (internal quotations omitted). Put another way, "[t]he test requires consideration of what the [entity] did in the face of all of the attendant circumstances, including, of course, the extent of the known danger and what it considered to be the need for urgency." Schwartz v. Jordan, 337 N.J. Super.550, 555 (App. Div.), certif. denied sub nom., Schwartz v. Plainsboro Twp., 168 N.J.293 (2001).

Here, the trial court determined that the County's and the Township's actions or omissions with regard to the alleged dangerous condition were not palpably unreasonable.

We note that the trial court correctly found that there were genuine issues of material fact as to whether the downed stop sign was a dangerous condition, whether Angelique Greene used due care when she stepped off the bus, and whether the alleged dangerous condition was a proximate cause of her injuries. The court erred, however, in finding that the evidence, even when viewed in a light most favorable to plaintiffs, did not raise a genuine issue of material fact as to whether the County's and Township's actions or omissions regarding the downed sign were palpably unreasonable.

Factors to consider when determining palpable unreasonableness include, but are not limited to: whether there was a history of similar accidents, Carroll v. N.J. Transit, 366 N.J. Super. 380, 388-89 (App. Div. 2004); whether there was actual notice of the dangerous condition, Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 191 (2002); whether the condition was known to be dangerous, Schwartz, supra, 337 N.J. Super. at 565-66; the expense and inconvenience associated with remedying the problem, Roe ex rel. M.J. v. N.J. Transit Rail Operations, Inc., 317 N.J. Super. 72, 82 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999); and whether the defendant's conduct fell below the standard of care for maintaining the public property, Carroll, supra, 366 N.J. Super. at 390.

There is no dispute regarding defendants' actual notice. They had none. The evidence does not establish how long the sign had been downed or what caused it to fall.

The County asserts that it maintains all stops signs at locations where a county road intersects a town road, had no written policy on maintaining stop signs, and had no proactive procedure for inspecting signs. It reportedly performed maintenance and repairs when notified by the Township that repairs were necessary. There was no history of similar accidents.

The Township asserts that it hires traffic maintenance laborers who are responsible for maintaining signs and looking for damaged or missing signs. On occasion, the Township repairs signs on county roads, which are the County's responsibility. The County has a policy in place to repair signs on an as-needed basis, upon notification from the Township or some other source, thereby remediating any potentially dangerous conditions. Plaintiffs presented no expert testimony regarding the standard of care for maintaining public property.

Plaintiffs argue that a jury could reasonably find that County employees were in the area in the days preceding the incident and their failure to remedy the alleged dangerous condition posed by the downed stop sign was palpably unreasonable. Plaintiffs emphasize that because snow was on the sign, an inference could be drawn that the sign fell after the snow had fallen, and because County road crews had been in the area plowing the county street, the County workers should have seen the stop sign and fixed it with minimal effort. They also mention that the Township's police, patrolling the streets, should have put the Township on notice, and they make a similar point about fixing the sign with minimal effort.

Determining whether defendants' procedures for stop sign repair and general road maintenance were palpably unreasonable requires examination of the frequency of downed stop signs, the probability and gravity of danger presented by them to pedestrians like Angelique, and the extent of the resources and personnel available to address such a problem. These are factual questions, the answers to which could lead a reasonable jury to conclude that the actions or inactions of the entities were palpably unreasonable.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Plaintiff Anthony Greene's claim is derivative of Angelique's personal injury claim. He seeks compensation for the loss of her support, society, companionship, love, solace, consortium, services, and income.

2 Plaintiffs' complaint also named as defendants the State of New Jersey, the New Jersey Department of Transportation, and New Jersey Transit, but an order of dismissal as to these defendants pursuant to a settlement agreement was entered on July 18, 2013.