JAROSLAW HASIAK v. BOROUGH OF WALLINGTON

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4202-12T1

JAROSLAW HASIAK, a minor

by his guardian ad litem

JOLANTA HASIAK, and JOLANTA HASIAK,

individually,

Plaintiffs-Appellants,

v.

BOROUGH OF WALLINGTON,

COUNTY OF BERGEN, and COUNTY OF

BERGEN DEPARTMENT OF PUBLIC WORKS,

Defendants-Respondents.

__________________________________________

September 2, 2014

 

Submitted May 6, 2014 - Decided

 

Before Judges Sabatino and Rothstadt.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L812711.

 

Alan Mitchel Bonder, attorney for appellants (Michael A. Rowek, of counsel and on the brief).

 

James X. Sattely, Jr., Bergen County Counsel, attorney for respondents County of Bergen and County of Bergen Department of Public Works (Eva Signore, Assistant County Counsel, of counsel and on the brief).

PER CURIAM

Plaintiff Jolanta Hasiak, (plaintiff's mother) individually and as guardian ad litem for her minor son, Jaroslaw Hasiak (plaintiff), appeals from the Law Division's March 22, 2013 order granting summary judgment in favor of defendant County of Bergen. The suit arose from plaintiff's fall from a slide in a county park's playground. As a result of the fall, plaintiff sustained permanent injuries and underwent surgery to install flexible, steel rods into his arms. He also received counseling because he claimed he was pushed by another child.

Plaintiffs subsequently filed a complaint against Bergen County and its Department of Public Works1 for negligence in constructing, maintaining, or repairing the playground, "so as to cause a dangerous, unsafe and hazardous condition to arise thereon." In addition, plaintiff's mother individually sued defendants for loss of services of her son. In support, they retained a consulting engineer to conduct a site inspection. The inspection was conducted about fifteen months after incident. The engineer later reported that plaintiff's injuries were caused by inadequate protective groundcover, in violation of playground safety standards.

The County moved to strike the engineer's report as a "net opinion,2" and for summary judgment, which it supported with deposition testimony and a report from its employees and experts. It contended that plaintiffs' expert's report failed to provide any scientific evidence, and that without it, plaintiffs could not vault the bar of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 8-11. The County further argued that the groundcover of the playground was installed and maintained in accordance with industry standards. Finally, it cited to an intervening cause plaintiff being pushed off the slide as another reason liability could not be imposed.

The motion judge barred the engineer's report as a "net opinion," and granted summary judgment, finding the County was immune from suit under the TCA. Plaintiffs appealed that order arguing that their expert's report was not a "net opinion" and contained "abundant support" for their position. As a result, there was sufficient evidence in the record that would allow a jury to find that plaintiffs met the requirements of the TCA. The County disagreed and maintained that plaintiff's expert report was properly excluded and that summary judgment was appropriately entered because plaintiffs could not meet their burden under the TCA. We have considered these contentions in light of the record and applicable law, and we now affirm.

I.

Because this matter comes before us on an appeal from a grant of summary judgment dismissing plaintiff's cause of action, we consider only those material facts over which there is no dispute and view the evidence in the light most favorable to plaintiff. R. 4:46-2(c); Muhammad v. N.J. Transit, 176 N.J. 185, 189 (2003); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The Fall

On July 29, 2007, plaintiff, who was then ten years old, fell from the top of a spiral slide on the playground at a county park. As a result, he sustained bilateral displaced fractures in both forearms. He initially underwent a closed reduction of those fractures, which proved unsuccessful. He later underwent a second surgical procedure in which flexible, steel rods were inserted into his arms. He suffers from pain, discomfort, and loss of sensation in his forearms, and his symptoms are exacerbated in cold temperatures. Plaintiff has difficulty sleeping, lifting, and bending his arms. According to his doctors, plaintiff's injuries are permanent.

Two days after the accident, plaintiff's mother requested a consult for her son with the hospital's social services department, due to plaintiff being "pushed from the slide." Plaintiff met with a "Child Life Specialist," who noted that he spoke "appropriately" about the incident, though "[a]t times when speaking about the push, [his] affect did appear angry, but appropriate." According to the notes, plaintiff "stated he was pushed from the top of a slide by another child," and even identified the child who he thought it was. However, plaintiff was "not totally 100% sure" that this was the child who pushed him. As he explained in a later deposition, he was crouching down on the platform to get on the slide when he felt a strong "bump" from behind.

Plaintiffs' Expert Report and Testimony

Plaintiffs retained consulting engineer Michael G. Natoli, P.E., to examine the accident scene and write a report. Natoli inspected the area on November 8, 2008, about fifteen months after the date of the accident. He examined the playground surface and equipment "to note the presence and extent of deformation and other signs of hazards or defects, which may affect the service life of the playground area and end user safety." Ultimately, Natoli concluded that plaintiff's injuries were caused by insufficient protective groundcover, and that the County's failure to install or maintain the required level was "palpably unreasonable."

According to Natoli's report, he understood that the accident occurred when plaintiff "proceeded to travel down the spiral slide, [and] he fell from the slide chute and plummeted downward to impact the ground surface below, thus causing his injury to occur." In a later deposition, Natoli said that his understanding of the incident was based on the material he reviewed, and discussions with plaintiff and his mother. He was not told that plaintiff and his mother claimed that he was pushed. However, Natoli maintained that knowing plaintiff was pushed would have no bearing on his opinion.

Natoli reported that the playground surface consisted of a half-inch layer of wood chips, which overlies a densely compacted subsurface. There are "widespread areas of surface depressions" underneath the playground equipment, "which are areas highly susceptible to wood chip layer compaction and/or dispersion as influenced by play activity." After digging at the scene with a gardening tool, he found that the compacted subsurface extended down by at least six inches. However, in his deposition, Natoli said he did not measure the actual depth of the groundcover, nor could he recall where he was actually digging.

He consulted the "Safety Standard for Public Playground Equipment," which establishes safety requirements for playground equipment. The Safety Standard was produced by the National Recreation and Park Association (NPRA),3 published in 1976. Under design standard section 1514.10, a playground should use "suitable energy absorbing . . . surface material." The safety standard advised against a surface impact greater than fifty Gforce level. Also, "[t]he safety standards reveal that at an 8 ft. drop height a 30 G force level was attained by an object striking a 12 in. thick wood chip type playground surface." Based on this information, according to Natoli, "it is foreseeable that the 1/2 in. wood chip layer would clearly exceed the 50 G force level necessary to avert end user injury." He therefore advocated a twelve inch thick wood chip surface, "which meets with the maximum 50 G design standard level."

Natoli concluded that,

[T]he playground owner/responsible government entity owed a duty of reasonable care to ensure the safety of the public. In my opinion, the playground owner/responsible government entity clearly acted in a palpably unreasonable manner in first having created the dangerous condition, then allowing it to remain unabated or remediated for an unreasonable length of time and then failed to take timely corrective action (increasing the wood chip layer to provide adequate cushioning effects, etc.) to avoid the longstanding hazard.

 

Natoli reported that the "surfacing hazard represents a condition readily discoverable through a reasonable inspection of the property." He opined that any repairs could be done at no cost, without specialized equipment or any trained personnel, and "that the repairs can be performed by the municipal maintenance forces and that an unlimited supply of wood chips is readily available from municipal stockpiles."

The Defense's Experts and Summary Judgment Motion

In support of the County's motion to strike plaintiffs' expert's witness report and for summary judgment, it attached transcripts from the depositions of Natoli, and Alan L. Koenig, a landscape architect for the County; as well as a report by Thomas W. Bowler, II, a certified playground safety inspector under the NPRA, and the National Program for Playground Safety (NPPS). Plaintiff's reply included the deposition of Dennis Monte, manager of parks and grounds for the County.

Koenig testified at his deposition that he is involved in the design, as opposed to maintenance, of the County's parks. He helped redesign the subject park in 2004. He is also a certified Playground Safety inspector under the NPRA. In his work, he adheres to safety standards based on manufacturers' recommendations, as well as the Consumer Protection Products Safety Commission (CPSC)4 and the American Society of Testing Materials (ASTM). These standards are taught to inspectors by the NPRA.

According to Koenig, the choice of groundcover for a particular park was discretionary. Wood carpeting was used for the park's playground. In other parks, they have used bonded rubber surfacing, particularly where handicap accessibility is a concern. However, he said that "[b]oth wood carpeting and bonded rubber surfacing provide the same benefit." At the time of installation, according to Koenig, they used fifteen inches of wood layers, which were then compacted to twelve. Koenig said the wood carpeting was installed when the park playground was built in 2005. He said they added additional wood carpeting in 2009 as, "[b]efore that it was deemed . . . not necessary, not needed."

He said that the purpose of the safety surfacing was to "protect [a] child from a catastrophic injury," meaning "[h]ead injury,[or] death." He did not include broken arms in this category as, "children are subject to fall, and depending how they fall, they can break an arm, a leg, an ankle or wrist." Koenig was also shown a picture of the playground, taken around the time of the incident, according to plaintiffs' counsel. After examining the pictures, he noted that,

On this photo there are tags on the poles, and these tags show the height that the wood carpeting should be. Two poles show that the carpeting is a little bit lower than the top, which would lead me to believe that the wood carpeting at that location underneath where the children run around eroded to eight inches. Other poles show it's higher than that.

 

Again, it comes down to use and the depth and how children run around through the playground structure.

Monte testified that he is an "administrator" and "facilitator" for Bergen County parks, meaning he is in charge of "material, personnel, equipment, whatever is needed" for the parks. He said that one of his personnel, a park supervisor, had been in charge of maintaining the parks.5 He said the parks were inspected "periodically," and described the process:

You would look for abnormalities, whereas missing parts to a playground, swings, et cetera, everything from holes in the grounds; kids love to dig. Everything from parts pieces to material which would be wood carpet or sheathing, anything like that.

He said the wood carpet was replenished twice a year, in the spring and fall. The maintenance staff also raked and redistributed the wood mulch "at least once, twice a week[, j]ust basically the simple maintenance, just filling in holes . . . where kids come down and slide at the end of the slide or swings are notorious."

In his report, Bowler cited to the Handbook for Public Playground Safety, by the CPSC, published by the Office of Information and Public Affairs in 1997. He cited the Public Playground Safety Handbook, also by the CPSC, published in 2010. He also cited the Standard Consumer Safety Performance Specification for Playground Equipment for Public Use, by the ASTM International, published in April 2007.

He studied the site on November 14, 2012, about five years and three and one-half months after the incident. Using a surveyor's rod, he created "probe holes" to measure the depth of the protective surfacing at several points in the ground. "The depth of the hole was determined by digging into the wood chips and ultimately ceasing when the geotextile barrier layer was located in the probe hole." His report provided five measurements, the lowest being a four and one-half inch depth at a distance of three feet, eleven inches from the spiral slide; and the highest being a seven and seven-eighths inch depth at a distance of five feet, three inches from the spiral slide. He said that the 2010 CPSC standards advocated a nine inch layer of compressed wood chips within the area for six probes. Bowler added, however, that "this is NOT reflective of any values on the incident date."

Bowler opined that plaintiff would not have been injured if he was using the slide appropriately. This is because the slide was designed with a hood at the top, handrail barriers, and a hand grip at the hood's entrance, all in keeping with 1997 CPSC standards, and ASTM standards. He also said that Natoli's study was flawed, because he inspected the site fifteen months after the incident, and relied on NPRA standards that were over thirty-one years old. Bowler added that, unlike himself, Natoli was not certified under the NPRA or NPPS. In addition, he noted that Koenig's testimony confirmed that the protective surfacing was installed in accordance with industry standards.

At oral argument, the County contended that Natoli's report should be barred as a "net opinion," and that without that report, plaintiffs could not prove there was a dangerous condition under the TCA. Plaintiffs argued that the report revealed that the groundcover did not meet industry standards, and that the County should have been put on notice of the condition by their periodic inspections.

The court found that Natoli inspected the site over fifteen months after the incident; his report did not include any information as to whether the slide conformed to industry standards; he did not measure the depth of the groundcover, nor did he provide photographic evidence or other evidence of the groundcover's actual depth; and he did not acknowledge or account for plaintiff's being pushed as an "intervening" cause. Based on its findings, the court concluded that "any opinions or conclusions reached [were] not based upon a condition that accurately replicates the condition of the ground cover at the time of the accident." Moreover, "Mr. Natoli failed to provide an explanation or basis for his conclusion, thus rendering his opinion a net opinion and excludable as evidence." As a result, the court ordered that Natoli's report be stricken as a net opinion.

The court determined that plaintiffs failed to establish every element of proof required by the TCA to prove a dangerous condition existed that caused plaintiff's injuries for which the County could be held liable. Specifically, it found that a dangerous condition had not been established, because the negligent or criminal actions of third parties could not be considered a "dangerous condition," and because there was evidence that appropriate use of the slide would not create a risk of injury. Plaintiff failed to present objective evidence that the groundcover was insufficient or in violation of industry standards.

The court also found that plaintiff failed to establish causation, because the child who pushed him "was a sufficient intervening cause that produced the accident and resulting injuries." It found there was no evidence to suggest the County had actual notice of any alleged dangerous condition, such as lack of wood mulch, prior to the incident. Also, plaintiffs presented no evidence as to the length of time that the alleged condition existed prior to the incident, to prove constructive notice. The County received no complaints about a lack of protective groundcover on the playground.

Finally, the court found that the County was not palpably unreasonable, because there was no evidence that there was time to address the alleged condition prior to the accident. Citing to our decisions in Carroll v. N.J. Transit, 366 N.J. Super. 380, 390-91 (App. Div. 2004), and Maslo v. City of Jersey City, 346 N.J. Super. 346, 349 (App. Div. 2002), the court held that palpable unreasonableness could not be found in the absence of notice. Accordingly, it granted the County's motion for summary judgment.

II.

The propriety of a summary judgment ruling presents an issue of law, rather than fact, Fernandez v. Nationwide Mut. Fire Ins. Co., 402 N.J. Super. 166, 170 (App. Div. 2008), aff'd o.b., 199 N.J. 591 (2009); Pressler & Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2014), and is therefore subject to de novo review. NAACP of Camden Cnty E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 430 (App. Div. 2011), appeal dismissed, 213 N.J. 47 (2013). Accordingly, we apply the same standard as the trial court in reviewing summary judgment orders, viewing the evidence in a light most favorable to the non-moving party. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).

In our review, we first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires [that we] consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

 

[Brill, supra, 142 N.J. at 540.]

A fact is "material" if it "might affect the outcome of the suit under the governing law," and an issue is "genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211-12 (1986). Thus, issues of fact that are merely "immaterial or of an insubstantial nature" do not preclude the granting of summary judgment. Brill, supra, 142 N.J. at 529 (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)).

If there are no material facts in dispute, we then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In so doing, we owe no deference to the motion judge's conclusions on issues of law, and review those de novo. Ibid. In this case, the issues presented are purely legal in nature.

We are satisfied from our review of the record that the motion judge correctly applied the TCA's provisions and dismissed plaintiffs' complaint because plaintiffs did not establish that a "dangerous condition" existed when the incident occurred, or, if one did exist, the County never had prior notice of the condition, either actual or constructive. The TCA, which governs tort claims against public entities, replaced the common-law doctrine of sovereign immunity. See Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 404 (1988) ("In 1972, the Legislature enacted the [TCA] in response to mounting judicial disfavor with the doctrine of sovereign immunity."). It stands for the public policy that for public entities, "immunity from tort liability is the general rule and liability is the exception." Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998) (citing Bombace v. City of Newark, 125 N.J. 361, 372 (1991)).

In assessing claims that implicate the TCA, "courts should employ an analysis that first asks whether an immunity applies and if not, should liability attach." Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.) (citations and quotations omitted), certif. denied, 196 N.J. 461 (2008). "When both liability and immunity exist, immunity prevails." Ibid. The TCA states that a public entity can only be held liable for its negligence "within the limitations of [the TCA] and in accordance with the fair and uniform principles established [t]herein." N.J.S.A. 59:1-2.

It is a plaintiff's burden to prove all of the elements required by the TCA to impose liability on a public entity.

To recover under the Act, a plaintiff must prove, among other things, that at the time of the injury the public entity's property was in a dangerous condition, that the condition created a foreseeable risk of the kind of injury that occurred, and that the condition proximately caused the injury. Even then, the Act imposes no liability on a public entity if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

 

[Garrison, supra, 154 N.J. at 286 (citations omitted); N.J.S.A. 59:4-2.]

 

Therefore, because plaintiffs here argue that the playground was in a dangerous condition due to insufficient protective groundcover, they must demonstrate the following in order to establish the County's liability under the TCA:

In order to recover under N.J.S.A. 59:4-2, a party must prove: (1) that there was a dangerous condition on the property at the time of the injury, (2) that the dangerous condition proximately caused the injury, (3) that the dangerous condition created a foreseeable risk of the kind of injury incurred, (4) that either (a) a public employee created the dangerous condition, or (b) that a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have protected against the condition and (5) the action or inaction of the public entity with regard to its effort to protect against the condition was palpably unreasonable.

 

[Saldana v. DiMedio, 275 N.J. Super. 488, 502 (App. Div. 1994); N.J.S.A. 59:4-2..]

 

The TCA defines a "[d]angerous condition [as] 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. 59:4-1(a). "Not every defect[,] . . . even if caused by negligent maintenance is actionable." Polyard v. Terry, 160 N.J. Super. 497, 508 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979). A motion judge is required to make a "preliminary determination as to whether the alleged condition is in fact a dangerous one within the meaning of the statute[; o]therwise the legislatively-decreed restrictive approach to liability would be illusory." Ibid.

Also, to be held liable, a public landowner must have actual or constructive knowledge of the purported dangerous condition. N.J.S.A. 59:4-2. Pursuant to N.J.S.A. 59:4-3, a public entity has "actual notice" of a "dangerous condition . . . if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." It has "constructive notice . . . only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." Ibid.

Finally, even if a plaintiff can establish the first four elements for liability arising from a dangerous condition, he or she must still prove that the governmental body's actions or its inactions were "palpably unreasonable." N.J.S.A. 59:4-2. We have described such conduct as being "more than mere negligence; but we have said that it does not necessarily mean very negligent, grossly negligent or extraordinarily negligent." Schwartz v. Jordan, 337 N.J. Super. 550, 555 (App. Div. 2001) (quoting Holloway v. State, 239 N.J. Super. 554, 560 (App. Div. 1990), aff'd in part, 125 N.J. 386 (1991)) (internal quotations omitted). "[T]he inquiry is whether no prudent person could approve of the governmental entity's action or inaction." Ibid. (citing Holloway, supra, 125 N.J. at 403). The purpose of limiting liability to only "palpably unreasonable" action or inaction is to "allow sufficient latitude for resourceful and imaginative management of public resources while affording relief to those injured because of capricious, arbitrary, whimsical or outrageous decisions of public servants[,] . . . [which] implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff." Ibid. (quoting Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979)).

Applying these principles here, we agree with the motion judge that plaintiffs failed to support their claim with any proof that established a "dangerous condition" existed or that the County had prior notice of such condition, if one existed, or that the County's actions or omissions were "palpably unreasonable,". The record is without any proof that a "dangerous condition," N.J.S.A. 59:4-1, existed, even if we consider the contents of Natoli's report. That report focused on the issue of protective groundcover, but it did not contain any evidence that the County failed to meet industry standards, as Natoli defined them, when it installed the playground or on the date of the accident. Also, by Natoli not measuring the depth of the total groundcover, there was not even proof that the depth of the groundcover was insufficient on the date of his inspection, fifteen months after the incident.

As to the requirement for notice, "[a] public entity [is] deemed to have actual notice of a dangerous condition . . . if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." N.J.S.A. 59:4-3(a). It is deemed to have constructive notice "only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3(b). Plaintiffs have not demonstrated that the County had either type of notice. There is no evidence presented of how long the alleged dangerous condition existed before the incident, or of its "obvious nature." Natoli gave no opinion as to how long the condition, if any, existed before plaintiff's accident, nor did plaintiffs provide such information in the form of prior complaints or accidents involving the same issue.

Finally, despite Natoli's opinion, plaintiffs presented no evidence that the County's actions or inactions were palpably unreasonable. The County presented ample, uncontroverted evidence with respect to the construction and maintenance of the playground, and its compliance with industry standards. There was no evidence as to the County's unreasonableness in constructing or maintaining the playground. At best Natoli's opinion supported his allegation that the County negligently maintained the level of protective groundcover. His report, nor any other part of the record, supported a contention that the County's actions or omissions amounted to conduct that was "capricious, arbitrary, whimsical or outrageous."

Because we have concluded that the motion judge properly granted the County's motion for summary judgment, even assuming Natoli's opinion was admissible and not a net opinion, we need not address plaintiff's argument that Natoli's report should not have been stricken or the County's argument that the plaintiff being pushed from the slide was an intervening cause relieving it of liability for a dangerous condition.

Affirmed.

 

 

1 Plaintiffs also filed suit against the Borough of Wallington. Although the record is not clear as to the disposition of that claim, we assume that the complaint against the Borough was previously dismissed once it was determined that the location of plaintiff's fall was a county park.

2 "[A]n expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered." Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 372 (2011).

3 Experts in this case have referred to either a National Parks and Recreation Association or a National Recreation and Parks Association. We assume they are the same organization.

4 Bowler also refers to the "Consumer Products Safety Commission," which we assume is the same organization.

5 Monte specifically named the park supervisor at the time of the accident, but the individual had passed away before the lawsuit.