MICHAEL POSTORINO v. COUNTY OF PASSAIC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MICHAEL POSTORINO,

Plaintiff-Appellant,

v.

COUNTY OF PASSAIC,

Defendant-Respondent.

__________________________________

July 25, 2016

Argued January 25, 2016 Decided

Before Judges Carroll and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3495-12.

Fredrick L. Rubenstein, argued the cause for appellant (James P. Nolan and Associates, LLC, attorneys; Mr. Rubenstein, on the brief).

Michael H. Glovin, Deputy Passaic County Counsel, argued the cause for respondent (William J. Pascrell III, Passaic County Counsel, attorney; Jeffrey P. Gardner, of counsel and on the brief).

PER CURIAM

Plaintiff Michael Postorino appeals from the Law Division's September 19, 2014 order granting summary judgment to defendant County of Passaic, dismissing plaintiff's complaint with prejudice. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm.

I.

We view facts from the record below in the light most favorable to plaintiff, the non-moving party. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)). At some time between 7:30 a.m. and 8:00 a.m. on February 18, 2011, Postorino, Fire Chief for the City of Paterson, was leaving the scene of a fire when he stepped into a pothole covered by water in the vicinity of 324 Grand Street. As a result, he sustained a left knee injury and subsequently filed suit against Passaic County, which was responsible for maintaining the street.

During discovery, Jack Nigro, the county's Superintendent of Buildings and Roads, gave deposition testimony estimating that his department's work crews traveled the road on a weekly basis where the accident occurred. When shown pictures of the pothole taken after the accident, Nigro acknowledged that if the pothole was seen by a crew member or supervisor, he would have expected the pothole to have been reported or filled-in.

On November 17, the day before the accident, a report was prepared by a county road inspector requesting that potholes be filled-in on Grand Street between Spruce Street and Railroad Avenue without specifying exact locations. The complaint to make repairs was issued the next day following Postorino's early-morning accident.

The record also reveals that in late November, 2009, a permit was issued to the Passaic Valley Water Commission to change out a hydrant or install a new pipe in the vicinity of the pothole. According to Nigro, normally after that type of work was completed, someone from Buildings and Roads would inspect the site to make sure the road was not damaged and was in a safe condition. However, Nigro could not locate any documentation indicating that the area of 324 Grand Street was inspected by his department after the work was completed.

Following discovery, Passaic County moved for summary judgment based upon immunities under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 through 59:12-3. The county argued that Postorino failed to prove that: (1) the pothole was a dangerous condition, N.J.S.A. 59:4-2; (2) the county had actual or constructive notice of the dangerous condition, N.J.S.A. 59:4-4; and (3) he had a permanent loss of a bodily function, N.J.S.A. 59:9-2(d). Postorino opposed the motion, contending that the pothole was a dangerous condition, and genuine issues of material fact existed as to notice of the pothole and permanency of his injury.

After hearing oral argument on September 19, 2014, Judge Lawrence Maron issued an order granting summary judgment with his written findings of fact and conclusions of law. The judge found that the pothole was a dangerous condition. However, viewing the evidence in the light most favorable to Postorino, Judge Maron reasoned that since county employees regularly traversed the road where the pothole existed, there was no evidence that the pothole existed for a sufficient period of time as to allow the condition to be discovered.

Judge Maron further noted that "[t]he photographs presented by the [county] show that the pothole was not so large that it should have been obvious to [the county] that it needed repair." Judge Maron granted summary judgment "based upon lack of actual or constructive notice [of the condition] as required by the Tort Claims Act." The issue of permanent and substantial injury was therefore moot. This appeal followed.

We are guided by well-established principles. We review a ruling on a motion for summary judgment de novo, "'apply[ing] the same standard governing the trial court.'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (quoting Murray v. Plainfield Rescue Squad, 201 N.J. 581, 584 (2012)). Thus, we consider, as the motion judge did, "'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.'" Id. at 406 (quoting Brill, supra, 142 N.J. at 540). "If there is no genuine issue of material fact, we must then decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citations omitted).

Postorino contends on appeal that the motion court erred in granting summary judgment because there was a genuine issue of material fact regarding whether Passaic County had constructive notice of the pothole that caused his accident. In addition, Postorino asserts that during argument the judge suggested in his colloquy with defense counsel that there was a disputed material fact concerning notice of the pothole that should be decided at trial. We disagree with these contentions.

The fundamental principles embodied in the TCA include the notion that governmental immunity is the rule unless the Act itself creates an exception. Kepler v. Taylor Mills Developers, Inc., 357 N.J. Super. 446, 453 (App. Div. 2003). As we have also said, in enacting the TCA "[t]he Legislature had 'rejected the concept of a statute that imposed liability with specific exceptions . . . . [Instead], public entities are immune from liability unless they are declared to be liable by enactment.'" Macaluso v. Knowles, 341 N.J. Super. 112, 117 (App. Div. 2001) (alteration in the original) (quoting Rochinsky v. State, Dep t of Transp., 110 N.J. 399, 408 (1988)). Of necessity, a public entity must retain the power and discretion to determine how to allocate scant resources. Suarez v. Dosky, 171 N.J. Super. 1, 9 (App. Div. 1979), certif. denied, 82 N.J. 300 (1980).

N.J.S.A. 59:4-2 states that a public entity is liable if a plaintiff establishes: (1) public "property was in a dangerous condition at the time of the injury"; (2) "the injury was proximately caused by the dangerous condition"; (3) "the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred"; and (4) "a negligent or wrongful act or omission of [a public] employee . . . created the dangerous condition, or a public entity had actual or constructive notice of the condition . . . ."1

The sole question before us is whether Passaic County had constructive notice of the pothole. Constructive notice of a dangerous condition by a public entity under N.J.S.A. 59:4-2 occurs "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).

There are various ways a plaintiff can demonstrate constructive notice. The length of time a dangerous condition existed and its appearance can show constructive notice. Chatman v. Hall, 128 N.J. 394, 418 (1992) ("The length of time during which the hole existed as well as its alleged size create a reasonable inference that the defendant employees had either actual or constructive notice of the hole, as does the affidavit of a neighbor who reported the hole.") (citing Milacci v. Mato Realty Co., Inc., 217 N.J. Super. 297, 302-03 (App. Div. 1987) (finding a large accumulation of dirt and sand on the floor of an office can indicate a public entity may have had constructive notice of its existence)). Additionally, prior accidents at the same location of the dangerous condition can create an issue of fact as to constructive notice. Wymbs v. Twp. of Wayne, 163 N.J. 523, 536 (2000).

In this case, nothing in the record indicates how long the pothole existed so as to determine that Passaic County should have known of its existence prior to Postorino's accident. As Nigro testified, Buildings and Roads employees traveled in the approximate vicinity of the accident location on a weekly basis and would have reported the pothole or filled it had it been noticed. There are no facts disputing this assertion. Indeed, the day before the accident, a complaint of potholes on a certain stretch of Grand Street was authored by a county inspector; the report was issued the next day, following Postorino's early morning accident. There is no indication that the pothole that caused Postorino's injury was identified in this report. Yet, even if the pothole was identified, it was not reported in sufficient time to allow the county to repair it prior to the accident.

Importantly, there was no record of prior accidents involving the pothole that caused Postorino's accident, or other potholes thereabout, which could have generated notice to the county prior to the accident. Furthermore, Postorino presented no expert testimony to support his position that the pothole existed for some duration prior to his accident.

Lastly, there is no merit to Postorino's contention that Judge Maron decided during oral argument that there was a genuine issue of material fact regarding constructive notice of the pothole. The judge did not make a finding but was merely posing a thought that was quickly opposed by defense counsel. In fact, at the close of argument, the judge remarked, "I'll review my notes from the [] argument. Sometimes it changes my decision, sometimes it doesn't." Moreover, the judge's ruling was set forth in an order and his reasoning was clearly articulated in his written findings of fact and conclusions of law. R. 1:6-2(f).

Accordingly, we refuse to apply constructive notice of a dangerous condition to the public entity in this case. Summary judgment was properly granted by Judge Maron.

Affirmed.

1 Additionally, a public entity is not liable for a dangerous condition of its property if "the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." Ibid. The claimant has the burden to prove the public entity's action or inaction was palpably unreasonable. Coyne v. Dep't of Transp., 182 N.J. 481, 493 (2005) (citing Muhammad v. N.J. Transit, 176 N.J. 185, 195 (2003)). However, because we conclude that Passaic County did not have actual or constructive notice of the pothole, we need not address whether its actions were palpably unreasonable.