LOUELLA FRISON v. A-1 LIMOUSINE, INC.

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0763-16T3

LOUELLA FRISON,

        Plaintiff-Appellant,

v.

A-1 LIMOUSINE, INC., ANDRE
WILLIAMS, TRENTON-MERCER
AIRPORT, MERCER COUNTY, and
MERCER COUNTY DEPARTMENT OF
TRANSPORTATION,

     Defendants-Respondents.
_______________________________

              Submitted November 1, 2017 – Decided November 21, 2017

              Before Judges Fuentes and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Docket No.
              L-1069-15.

              Timothy J. Alles (Louis B. Himmelstein                 &
              Associates, PC) attorney for appellant.

              Sweeney   &   Sheehan,  PC,   attorneys  for
              respondents A-1 Limousine and Andre Williams
              (F. Herbert Owens, III, on the brief).

              Arthur R. Sypek, Jr., Mercer County Counsel,
              attorney   for   respondents  Trenton-Mercer
              Airport, Mercer County and Mercer County
              Department of Transportation (Stephanie R.
           D'Amico,   Assistant   County    Counsel,   on   the
           brief).

PER CURIAM

     Plaintiff Louella Frison appeals from two orders granting

summary judgment; one in favor of the non-public entity defendants,

A-1 Limousine, Inc. (A-1) and Andre Williams, and the other in

favor of   Trenton Mercer Airport, Mercer County, and Mercer County

Department of Transportation and Infrastructure (the Mercer County

defendants).   We affirm.

     Viewing the evidence most favorably to Frison per Rule 4:46-

2(c); Brill v. Guardian Life Ins. Co. of America, 
142 N.J. 520

(1995), we find the following facts.

     Around 11 p.m. on July 8, 2013, Frison, in the company of

friends and family, was returning home after a flight from New

Orleans to Trenton Mercer County Airport.         They all utilized a

shuttle bus service provided by A-1 to travel to a remote parking

lot used by the airport's customers.       The driver of the bus, Andre

Williams, dropped Frison off in an unilluminated area of the

gravel-surfaced lot.    While stepping off the bus, Frison lost her

footing and fell to the ground.        Frison suffered a tear in the

meniscus of her left knee and fractured a bone in her right foot.

     On June 10, 2016, A-1 and Andre Williams filed a motion for

summary judgment prior to the August 11, 2016 discovery end date.


                                   2                              A-0763-16T
3 On July 8, 2016, the Mercer County defendants filed a motion for

summary judgment.   Oral argument on both motions was conducted

before the Law Division.   Upon completion, the judge granted both

motions by orders dated September 9, 2016.   This appeal followed.

     On appeal, Frison raises the following arguments:1

                              POINT I

          THE TRIAL COURT ERRED IN GRANTING THE MOTION
          FOR SUMMARY JUDGMENT OF DEFENDANTS, A-1
          LIMOUSINE AND ANDRE WILLIAMS BECAUSE THESE
          DEFENDANTS ACTED UNREASONABLY IN DROPPING
          PLAINTIFF/APPELLANT OFF IN A DANGEROUSLY DARK
          PORTION OF THE GRAVEL PARKING LOT.

                             POINT II

          THE TRIAL COURT ERRED IN GRANTING THE MOTION
          FOR SUMMARY JUDGMENT OF DEFENDANTS, TRENTON
          MERCER AIRPORT, MERCER COUNTY, AND MERCER
          COUNTY DEPARTMENT OF TRANSPORTATION AND
          INFRASTRUCTURE BECAUSE THESE DEFENDANTS ACTED
          IN A PALPABLY UNREASONABLE MANNER BY NOT
          INSTALLING ANY LIGHTS IN THE REMOTE PARKING
          LOT   WHERE   PLAINTIFF/APPELLANT   FELL   AND
          THEREFORE THE MERCER COUNTY DEFENDANTS ARE NOT
          IMMUNE.
                             POINT III

          THE TRIAL COURT ERRED IN   GRANTING THE MOTION
          FOR SUMMARY JUDGMENT OF    DEFENDANTS, TRENTON
          MERCER AIRPORT, MERCER     COUNTY, AND MERCER
          COUNTY DEPARTMENT OF       TRANSPORTATION AND

1
     Frison references in her brief that the motion was filed
before the end of the discovery period, yet she has not argued
that the motions were premature. In the ordinary course, arguments
not raised on appeal are deemed waived. Zaman v. Felton, 
219 N.J. 199, 227 (2014).



                                 3                         A-0763-16T3
             INFRASTRUCTURE BECAUSE THE PLAINTIFF HAS
             MEDICAL BILLS IN EXCESS OF [$3600] AND HAS
             SUFFERED A SIGNIFICANT AND PERMANENT LOSS OF
             BODILY FUNCTION BECAUSE OF THIS ACCIDENT AND
             THEREFORE THE MERCER COUNTY DEFENDANTS ARE NOT
             IMMUNE.

       Our review of a ruling on summary judgment is de novo,

applying the same legal standard as the trial court.                Townsend v.

Pierre,     
221 N.J.    36,    59   (2015)   (citing      Davis   v.   Brickman

Landscaping, Ltd., 
219 N.J. 395, 405 (2014)).                "Summary judgment

must   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.'"                   Town of Kearny v.

Brandt, 
214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).

       Thus, we consider, as the trial 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."           Ibid.     (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."    Massachi v. AHL Servs., Inc., 
396 N.J. Super. 486, 494

(App. Div. 2007), certif. denied, 
195 N.J. 419 (2008) (citing


                                         4                                A-0763-16T3
Prudential Prop. & Cas. Co. v. Boylan, 
307 N.J. Super. 162, 167

(App. Div.), certif. denied, 
154 N.J. 608 (1998)).    We accord no

deference to the trial judge's conclusions on issues of law and

review issues of law de novo.   Nicholas v. Mynster, 
213 N.J. 463,

478 (2013).

     We first address Frison's claim of error in granting summary

judgment on behalf of the Mercer County defendants.          Having

considered the discovery record, we conclude that Frison's claim

that the Mercer County defendants allowed a dangerous condition

to exist on its premises, i.e., a poorly illuminated gravel parking

lot, is without basis in fact and fails as a matter of law.

     The claim by Frison is governed by the Tort Claims Act (TCA).


N.J.S.A. 59:1-1 to 12-3.    
N.J.S.A. 59:4-2 provides that a public

entity is liable if a plaintiff establishes: (1) the 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.   Additionally, a public entity is not liable for

a dangerous condition of its property if "the action the entity



                                 5                          A-0763-16T3
took to protect against the condition or the failure to take such

action was not palpably unreasonable."     
N.J.S.A. 59:4-2.

     The heightened "palpably unreasonable" standard applies to

dangerous conditions of public property, and is intended to comport

with the principles of liability used by the courts for local

public entities in their capacity as landowners.         Margolis &

Novack, Claims Against Public Entities, 1972 Task Force Comment

on 
N.J.S.A. 59:4-2 (2016).   Although the statute has been broadly

applied, it is nevertheless limited to instances where a dangerous

condition of public property itself is at issue.     Ibid.; Ogborne

v. Mercer Cemetery Corp., 
197 N.J. 448, 459-60 (2009).

     The TCA defines a "dangerous 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).     The

condition must present a "substantial risk of injury" to be

actionable.   Polyard v. Terry, 
160 N.J. Super. 497, 508 (App. Div.

1978), aff'd, 
79 N.J. 547 (1979).      It cannot be "minor, trivial

or insignificant."   Id. at 509.

     Considered in light of the controlling law, we conclude Frison

has not demonstrated that a "dangerous condition" existed in the

parking lot at the time of the incident.    Other than the argument

that the lot's surface was gravel, Frison provided no proof that

                                   6                          A-0763-16T3
the condition was dangerous such that it presented a substantial

risk of injury.         As well, Frison provided no proof that, if a

dangerous condition did exist, it was the cause of the injury and

that the public entities had actual or constructive notice of the

condition.2     Consequently, Frison's claim of the existence of a

dangerous condition fails.        Thus, we do not need to address the

issue whether the Mercer County defendants' conduct was "palpably

unreasonable."

      The judge also granted summary judgment after finding that

Frison    failed   to   prove   the    accident   caused   her    to   suffer   a

"substantial loss of a bodily function."           Given our determination

regarding the lack of proofs relating to a dangerous condition,

we   do   not   need    to   address    whether   Frison's       injuries   were

compensable under the TCA.        See 
N.J.S.A. 59:9-2(d); Gilhooley v.

Cty. of Union, 
164 N.J. 533 (2000).

      We next address whether it was error to dismiss Frison's

claims against A-1 and Williams.            "[A] negligence cause of action

requires the establishment of four elements: (1) a duty of care,

(2) a breach of that duty, (3) actual and proximate causation, and


2
  Although we view the proofs adduced during discovery in a light
favorable to Frison, it is without factual dispute that prior to
this incident, the Mercer County defendants had no record of
individuals falling in this lot or of complaints regarding the
lighting in the lot.


                                        7                               A-0763-16T3
(4) damages."      Jersey Cent. Power & Light Co. v. Melcar Util. Co.,


212 N.J. 576, 594 (2013).        "[W]hether a defendant owes a legal

duty to another and the scope of that duty are generally questions

of law for the court to decide."          Robinson v. Vivirito, 
217 N.J.
 199, 208 (2014) (citing Carvalho v. Toll Bros. & Developers, 
143 N.J. 565, 572 (1996)).

     "[N]o bright line rule . . . determines when one owes a legal

duty to prevent a risk of harm to another."          Wlasiuk v. McElwee,


334 N.J. Super. 661, 666 (App. Div. 2000).          The imposition of a

duty depends on the interplay of many factors, including: (1) the

relationship of the parties; (2) the nature of the attendant risk;

(3) the opportunity and ability to exercise care; and (4) the

public interest in the proposed solution.         Hopkins v. Fox & Lazo

Realtors, 
132 N.J. 426, 439 (1993) (citing Goldberg v. Housing

Auth., 
38 N.J. 578, 583 (1987)). "Ultimately, [New Jersey] Supreme

Court cases repeatedly emphasize that the question of whether a

duty exists is one of 'fairness' and 'public policy.'"           Wlasiuk,

supra, 
334 N.J. Super. at 666-67 (quoting Hopkins, supra, 
132 N.J.

at 439).

     Applying these factors, we conclude that plaintiff has not

established a legal basis to impose a duty of care on A-1 and

Williams   under    the   circumstances    presented.   A-1   transported

Frison to an area of the parking lot and dropped her off.          Frison

                                    8                             A-0763-16T3
made no claim and offered no proofs that the vehicle's condition

caused her to fall.        A-1 did not own, operate or maintain the

parking lot.   Further, there was no proof that A-1 or Williams had

notice of any condition of the lot as to implicate a duty to warn.

In sum, from our independent de novo review of the record developed

before the motion judge, we cannot conclude A-1 or Williams had

knowledge or should have had knowledge of the parking lot's alleged

dangerous condition such as to impose a duty to rectify the

condition or to warn Frison of its presence.

       Aside from our determination that A-1 and Williams did not

breach their duty to Frison, when considering traditional notions

of liability, i.e., reasonable care commensurate with the risk of

harm and the lack of foreseeability, we determine that fairness

considerations militate against imposing a duty.

       Finally, although not addressed by the motion judge, we view

the equality of Frison's knowledge of the lighting conditions of

the parking lot to that of A-1 and Williams as relevant.            Assuming

that   the   area   was   "dimly   lit,"   this   condition   was   readily

observable by Frison.       On this score, we hold A-1 and Williams

cannot be liable due to Frison's failure to use due care.                 See

Berger v. Shapiro, 
30 N.J. 89, 99 (1959).

       Affirmed.



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