ANTHONY SCAFIDI v. TOWNSHIP OF LYNDHURST

NOT FOR PUBLICATION WITHOUT THE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-0962-16T2


ANTHONY SCAFIDI,

        Plaintiff-Appellant,

v.

TOWNSHIP OF LYNDHURST,

     Defendant-Respondent.
____________________________

              Argued March 20, 2018 - Decided April 20, 2018

              Before Judges Gilson and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-5943-15.

              Matthew H. Mueller argued the cause for
              appellant (Clemente Mueller, PA, attorneys;
              Matthew H. Mueller, on the briefs).

              Renee F. McCaskey argued the cause for
              respondent (Botta Angeli, LLC, attorneys;
              Natalia R. Angeli, of counsel and on the
              brief; Renee F. McCaskey, on the brief).

PER CURIAM

        Plaintiff Anthony Scafidi appeals from an October 14, 2016

order granting summary judgment in favor of defendant Township of
Lyndhurst (Township).   Plaintiff argues there were genuine issues

of material fact that precluded the entry of summary judgment.     We

disagree and affirm.

     On September 30, 2013, plaintiff visited a friend who lived

on Stuyvesant Avenue in the Township.   Plaintiff left his friend's

house around 7:30 p.m., intending to walk home.    As he got to the

sidewalk along Stuyvesant Avenue, plaintiff accidentally dropped

his house keys onto the street. Plaintiff stepped off the sidewalk

with his right foot to retrieve his keys.    Plaintiff then placed

his left foot on the road surface into a pothole, causing plaintiff

to fall.

     After falling, plaintiff walked home.     Later that evening,

plaintiff went to the hospital for an x-ray of his left foot.

According to the x-ray, plaintiff's foot had a "fracture in the

proximal aspect of the fifth metatarsal."

     On October 8, 2013, plaintiff underwent surgery that included

the placement of a permanent screw in his left foot.     Plaintiff

had several follow-up visits and wore a boot on his foot until

January 2014.   Plaintiff did not require any additional surgery

or treatment for his foot.

     Approximately one year after plaintiff's injury, plaintiff's

expert inspected the pothole.   At that time, the pothole measured

four and one-quarter inches deep.    No measurement of the width or

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length of the pothole was recorded.                Plaintiff's expert opined

that the pothole formed over "a period of several years" and,

specifically,     that   the   "total       time   for    the   subject    pothole

formation occurred within a [three to five] year duration."

     On June 15, 2015, plaintiff filed a complaint alleging the

Township was liable for his injuries.                    The Township filed an

answer, asserting plaintiff's claims were barred by the New Jersey

Tort Claims Act (TCA), 
N.J.S.A. 59:1-1 to 12-3.                   Following the

completion discovery, the Township filed a motion for summary

judgment contending it was entitled to immunity under the TCA.

     After reviewing the parties' written submissions and hearing

oral argument, the judge granted the Township's motion.                   The judge

found the Township was entitled to immunity under the TCA because

plaintiff failed to prove that: the pothole was a dangerous

condition; the Township had actual or constructive notice of the

condition; the Township's actions with respect to the pothole were

palpably unreasonable; or plaintiff suffered a permanent injury.

     On appeal, plaintiff contends there were genuine issues of

material   fact   that   precluded      the    entry     of   summary   judgment.

According to plaintiff, the genuine issues of material fact to be

resolved by the jury included whether the pothole was a dangerous

condition, whether the Township had notice of the pothole, whether



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the Township's actions were palpably unreasonable, and whether

plaintiff suffered a permanent injury.

     We review a grant of summary judgment de novo, applying the

same standard as the trial court.           Henry v. N.J. Dep't of Human

Servs., 
204 N.J. 320, 330 (2010).             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).     Considering the evidence "in the

light most favorable to the non-moving party," we must determine

whether it would be "sufficient to permit a rational factfinder

to resolve the alleged disputed issue in favor of the non-moving

party."    Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 540

(1995).    The "trial court's interpretation of the law and the

legal   consequences   that   flow   from    established   facts      are   not

entitled to any special deference."          Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 
202 N.J. 369, 382 (2010) (quoting Manalapan

Realty, LP v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378 (1995)).

     The   TCA   "reestablished   the    rule   of   immunity   for     public

entities and public employees, with certain limited exceptions."

Marcinczyk v. State Police Training Comm'n, 
203 N.J. 586, 594-95

(2010).     Under the TCA, "immunity for public entities is the

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general rule and liability is the exception."                   Wright ex rel. Kemp

v. State, 
147 N.J. 294, 299 (1997).                  "A public entity is only

liable for an injury arising 'out of an act or omission of the

public entity or a public employee or any other person' as provided

by the TCA."     Polzo v. Cty. of Essex, 
209 N.J. 51, 65 (2012)

(quoting N.J.S.A. 59: 2-1(a)).             "In other words, 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."    Ibid. (quoting Kahrar v. Borough of Wallington, 
171 N.J. 3, 10 (2002)).

      Chapter 4 of the TCA 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) the "public entity had

actual   or   constructive       notice        of   the    dangerous   condition."


N.J.S.A. 59:4-2.       Additionally, there is no liability against a

public entity "for a dangerous condition of its public property

if . . . the failure to take . . . action was not palpably

unreasonable."       Ibid.     If a plaintiff is unable to satisfy each

element, then the public entity is entitled to immunity under the



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TCA.   Carroll v. N.J. Transit, 
366 N.J. Super. 380, 386 (App. Div.

2004).

       The judge found plaintiff failed to satisfy each of the

elements of the TCA necessary to pursue his claims against the

Township.      We need not address each element as we agree that

summary judgment was appropriate because plaintiff is unable to

prove that the Township's failure to repair the pothole was

palpably unreasonable.

       The term palpably unreasonable "implies behavior that is

patently unacceptable under any given circumstance."                 Muhammad v.

N.J.   Transit,     
176 N.J.   185,   195    (2003)   (quoting     Kolitch     v.

Lindedahl, 
100 N.J. 485, 493 (1985)).              "[F]or a public entity to

have   acted   or   failed   to   act    in    a   manner   that    is   palpably

unreasonable, 'it must be manifest and obvious that no prudent

person would approve of its course of action or inaction.'"                    Id.

at 195-96 (quoting Kolitch, 
100 N.J. at 493).                      "Potholes and

depressions are a common feature of our roadways.                  However, 'not

every defect in a highway, even if caused by negligent maintenance,

is actionable.'"      Polzo, 
209 N.J. at 64 (quoting Polyard v. Terry,


160 N.J. Super. 497, 508 (App. Div. 1978) aff'd o.b., 
79 N.J. 547

(1979)).    Additionally, "[r]oadways cannot possibly be made or

maintained completely risk-free."             Id. at 71.



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     Whether     the   public      entity's   behavior    was      palpably

unreasonable is generally a question of fact for the jury.            Brown

v. Brown, 
86 N.J. 565, 580 (1981).          However, a determination of

palpable unreasonableness, "like any other fact question before a

jury,   is   subject   to   the   court's   assessment   whether    it   can

reasonably be made under the evidence presented."          Maslo v. City

of Jersey City, 
346 N.J. Super. 346, 351 (App. Div. 2001) (quoting

Black v. Borough of Atl. Highlands, 
263 N.J. Super. 445, 452 (App.

Div. 1993)).    "[T]he question of palpable unreasonableness may be

decided by the court as a matter of law in appropriate cases."

Id. at 350 (citing Garrison v. Twp. of Middletown, 
154 N.J. 282,

311 (1998)).

     Plaintiff failed to carry "the heavy burden of establishing

that defendant['s] conduct was palpably unreasonable."                Russo

Farms v. Vineland Bd. of Educ., 
144 N.J. 84, 106 (1996).              Based

on the evidence presented in connection with the Township's motion

for summary judgment, we find that the Township's inaction in

repairing a pothole located in a parking spot was not palpably

unreasonable.    Plaintiff would not have stepped into the road in

the area of the parking spot had he not dropped his keys.                The

pothole would not have been evident if a car had been parked in

the spot.      Moreover, a car would have driven over the pothole

without incident, whereas a pedestrian stepping into that area of

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the road, not designated as a pedestrian crosswalk, may have

stumbled.    Under these circumstances, we agree that the Township's

conduct was not manifestly or obviously without reasonable basis

or patently unacceptable.

     Plaintiff claims that the Township's Municipal Code requires

a pothole inspection program, and the Township lacks such a

program.      Plaintiff   relies   on       the    Township's    Municipal     Code

provision entitled, "Inspection of Sidewalks; Causes of Repair Due

to Tree Roots; Costs Assumed by Township" in support of his

argument.    The provision cited by plaintiff pertains to sidewalks.

In making road repairs, the Township relies on complaints from the

public.     Since there is no requirement that the Township inspect

for potholes, the lack of a pothole inspection procedure does not

render the Township's conduct palpably unreasonable.

     In this case, plaintiff alleged that the Township's conduct

was contrary to 
N.J.S.A. 59:4-2.                  Plaintiff never raised the

allocation of resources provision of the TCA in his complaint or

in opposition to summary judgment.            Nor did plaintiff present any

evidence that the Township's allocation of resources for pothole

repairs was palpably unreasonable.            To the contrary, plaintiff's

counterstatement    of    material    facts        and   his    expert's    report

acknowledged     "there   [has]      never        been   an    issue   with     the



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Township . . . not having adequate resources or manpower in order

to mitigate pothole hazards."

     Following full discovery and in response to the motion for

summary   judgment,   plaintiff   failed   to   demonstrate   that   the

Township's conduct regarding the pothole was palpably unreasonable

under the circumstances.

     Affirmed.




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