EDWARD J. HALL v. COUNTY OF BERGEN

NOT FOR PUBLICATION WITHOUT THE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-0707-16T4

EDWARD J. HALL and DEBRA
HALL,

        Plaintiffs-Appellants,

v.

COUNTY OF BERGEN and
TILCON NEW YORK, INC.,

        Defendants,

and

TOWNSHIP OF LYNDHURST,

     Defendant-Respondent.
_________________________________

              Argued January 30, 2018 – Decided February 13, 2018

              Before Judges Fisher and Fasciale.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County Docket No.
              L-20348-14.

              Amos Gern argued the cause for appellants
              (Starr, Gern, Davison & Rubin, PC, attorneys;
              Renee C. Rivas and Amos Gern, on the brief).

              R. Scott Fahrney argued the cause for
              respondent (Kaufman, Semeraro & Leibman, LLP,
            attorneys; Mark J. Semeraro            and    R.    Scott
            Fahrney, on the brief).

PER CURIAM

       In this New Jersey Tort Claims Act (TCA), 
N.J.S.A. 59:1-1 to

12-3, case involving a trip and fall over a discarded construction

barrel-base rubber ring (a donut), Edward J. Hall and Debra Hall

(plaintiffs) appeal from an October 7, 2016 order dismissing their

complaint    and   granting     summary   judgment       to    the   Township      of

Lyndhurst (defendant). Edward sustained serious personal injuries

due to the accident, and Debra brought a per quod claim.                           We

reverse and remand for a trial.

       When reviewing an order granting summary judgment, we apply

"the same standard governing the trial court."                Oyola v. Liu, 
431 N.J. Super. 493, 497 (App. Div. 2013).         We owe no deference to the

motion judge's conclusions on issues of law.                  Manalapan Realty,

L.P.   v.   Twp.   Comm.   of   Manalapan,   
140 N.J.       366,   378    (1995).

Plaintiffs argue that there exists genuine issues of material fact

as to whether a dangerous condition existed and whether defendant

had constructive notice of it.        We agree.

       Generally speaking, "a public entity is 'immune from tort

liability unless there is a specific statutory provision' that

makes it answerable for a negligent act or omission."                      Polzo v.

Cty. of Essex, 
209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough


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of Wallington, 
171 N.J. 3, 10 (2002)).               A public entity may be

liable if "a negligent or wrongful act or omission of [its]

employee . . . create[s] the dangerous condition" or, if it "had

actual or constructive notice of the dangerous condition . . . a

sufficient time prior to the injury to have taken measures to

protect against the dangerous condition."                
N.J.S.A. 59:4-2(a),

(b).   As the Court has repeatedly stated,

             to impose liability on a public entity
             pursuant to [N.J.S.A. 59:4-2], a plaintiff
             must establish the existence of a "dangerous
             condition," that the condition proximately
             caused the injury, that it "created a
             reasonably foreseeable risk of the kind of
             injury which was incurred," that either the
             dangerous condition was caused by a negligent
             employee or the entity knew about the
             condition, and that the entity's conduct was
             "palpably unreasonable."

             [Vincitore v. N.J. Sports & Exposition Auth.,
             
169 N.J. 119, 125 (2001) (quoting N.J.S.A.
             59:4-2).]

       The   law   is   settled    as   to   what   constitutes   a   dangerous

condition under the TCA.          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).     "A dangerous condition under [the TCA] refers to the

'physical condition of the property itself and not to activities



                                         3                              A-0707-16T4
on the property.'"      Wymbs v. Twp. of Wayne, 
163 N.J. 523, 532

(2000) (quoting Levin v. Cty. of Salem, 
133 N.J. 35, 44 (1993)).

     Here, Edward walked across the street and tripped over the

donut,   which   had   been   located   in   the   center   island   of   the

crosswalk.    The black donut was difficult to see due to the dark

surroundings during the early evening.             Plaintiffs' engineering

liability expert reviewed photographs of the donut located on the

pedestrian walkway and opined that a dangerous condition existed,

and he concluded that defendant acted in a palpably unreasonable

manner, which caused the dangerous condition.           Plaintiffs' expert

opined that the presence of the black donut created a reasonably

foreseeable risk of injury to any pedestrian.            He also concluded

that Edward acted reasonably when he legally crossed the street

at the designated pedestrian crossing in the early evening and

failed to see the black donut.      Looking at the facts in the light

most favorable to plaintiffs, we conclude a disputed issue of fact

exists as to whether a dangerous condition existed.

     The law is also settled as to what constitutes constructive

notice of a dangerous condition under the TCA.              
N.J.S.A. 59:4-3

provides:

            a. A public entity shall be 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.

                                    4                                A-0707-16T4
            b. A public entity shall be deemed to have
            constructive notice of a dangerous condition
            . . . 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.

However,     "[t]he    mere    '[e]xistence       of    an   alleged   dangerous

condition is not constructive notice of it.'"                Arroyo v. Durling

Realty, LLC, 
433 N.J. Super. 238, 243 (App. Div. 2013) (second

alteration in original) (quoting Sims v. City of Newark, 
244 N.J.

Super. 32, 42 (Law Div. 1990)). It follows that absent actual or

constructive notice, the public entity cannot have acted in a

palpably unreasonable manner.             Maslo v. City of Jersey City, 
346 N.J. Super. 346, 350-51 (App. Div. 2002).

     Here, the construction donut had previously been left at the

location of the accident site and remained there for at least nine

months.    Photographs of the donut showed its existence for this

timeframe.     Photographs taken both nine months and two months

before the date of the accident also revealed the donut stayed in

the same location. Three months before the incident, a significant

public works project, involving repaving and restriping, occurred

in the area around the accident site.                  And photographs of that

project    showed     the   donut   had    not   been   moved.    Although    not

determinative, we note that defendant did not inspect the area at

                                          5                              A-0707-16T4
the time of the repaving and restriping, and even if it did, the

donut remained in its location for many months after the accident.

Looking at the facts in the light most favorable to plaintiffs,

we conclude a disputed issue of fact exists as to constructive

notice.

       Palpably   unreasonable    conduct     "means   'behavior   that    is

patently unacceptable under any circumstance' and that it must be

'manifest and obvious that no prudent person would approve of [the

public entity's] course of action or inaction.'"          Pandya v. State,

Dep't of Transp., 
375 N.J. Super. 353, 372 (App. Div. 2005)

(alteration in original) (quoting Holloway v. State, 
125 N.J. 386,

403-04      (1991)).    In       most       circumstances,    "[p]alpable

unreasonableness is a question of fact."          Vincitore, 
169 N.J. at
 130.    As noted, the uncontested opinion testimony from plaintiffs'

liability expert sufficiently addressed the issue of palpable

unreasonableness in his report, which created a fact issue for the

jury.

       Reversed and remanded.




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