ALICIA RIVAS v. HM&A DISHI YEHEZKEL

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5913-17T4

ALICIA RIVAS,

Plaintiff-Appellant,

H&M&A DISHI YEHEZKEL,
COUNTY OF HUDSON,
STATE OF NEW JERSEY,
and NORTH HUDSON
SEWERAGE AUTHORITY,

Defendants,

and

CITY OF WEST NEW YORK,
and SUEZ WATER f/k/a
UNITED WATER,

Defendants-Respondents.
____________________________

Argued September 19, 2019 – Decided December 11, 2019

Before Judges Alvarez, Suter and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-4508-16.
Greg D. Shaffer argued the cause for appellant
(Brandon J. Broderick, LLC, attorneys; Alan K. Albert,
on the brief).

Brent M. Davis argued the cause for respondent City of
West New York (Scarinci & Hollenbeck, LLC,
attorneys; Brent M. Davis, of counsel and on the brief).

Andrew W. Miller argued the cause for respondent
Suez Water f/k/a United Water (DiFrancesco, Bateman,
Kunzman, Davis, Lehrer & Flaum, PC, attorneys;
Stephen O. Davis, of counsel; Andrew W. Miller, on
the brief).

PER CURIAM

Plaintiff Alicia Rivas appeals orders entered in this personal injury case

addressing discovery issues, granting summary judgment to defendants Town of

West New York (West New York) and Suez Water New Jersey, Inc. (Suez) and

denying reconsideration. We affirm the orders.1

Plaintiff alleges that on the night of November 15, 2014, as she was

attempting to cross Bergenline Avenue in West New York, she stepped off the

sidewalk and fell down sustaining personal injuries. She did not know the exact

1
Plaintiff's amended case information statement lists the following orders:
February 16, 2018; March 29, 2018; June 25, 2018; July 6, 2018 (two orders)
and August 17, 2018.
A-5913-17T4
2
location where she fell. She testified, "I know that I put my foot down. There

was a hole and my foot ended up halfway inside and halfway outside. And I lost

control of my body and I fell." She did not look to see what caused her to fall.

She believed she fell in an area where there were two water valve caps in the

roadway, each with a depression in the asphalt surrounding the cap that formed

a hole. She did not know which cap she was near when she fell. She explained

it was not the cap that caused the fall but the depression in the pavement.

Plaintiff's photographs of the vicinity, taken two years later and after PSE&G

performed work in that area, showed two water valve covers and the surrounding

roadway. Plaintiff testified the photographs depicted the area as it looked on

the day of the accident and circled both of the water valve covers as the location

where she fell.

Suez owns and maintains the water distribution system in West New York,

including the shut-off valves and covers plaintiff identified in the photographs.

West New York owns and maintains Bergenline Avenue in this area. Neither

defendant had a record of receiving any complaints about the asphalt or water

valve covers in that location.

In 2016, plaintiff filed a personal injury complaint against West New York

and Suez and the parties conducted discovery. On December 22, 2017, the trial

A-5913-17T4
3
court extended discovery to February 28, 2018, but set a deadline of December

31, 2017, for plaintiff to serve expert reports. This was the second extension of

discovery. On February 16, 2018, the trial court granted in part plaintiff's

request to extend discovery for a third time, but limited the scope for the purpose

of plaintiff's surgery that was scheduled to take place a few days later. The order

adjusted relevant discovery deadlines. Plaintiff's medical expert reports were

due at the end of March 2018; defendant's final reports, following plaintiff's re-

examination, were due in early May 2018. The order set a deadline to re-depose

plaintiff and a discovery end date of May 4, 2018. The scheduled arbitration

was adjourned.

In March 2018, Suez filed a motion to bar plaintiff's liability expert report

that plaintiff served for the first time in February 2018. Over opposition, the

court entered an order on March 29, 2018, barring the report and testimony of

this liability expert, reasoning that discovery had been extended in the February

16, 2018 order only for plaintiff's surgery and not for liability reports. Plaintiff's

motion for reconsideration of this order was denied on June 25, 2018, because

the court had "not learned of any mistake or palpably incorrect decision . . . ."

The court allowed defendants to amend interrogatories to add medical reports

that were consistent with the February 16, 2018 order.

A-5913-17T4
4
West New York and Suez filed motions for summary judgment in June

2018. Suez contended it did not own or maintain the roadway where plaintiff

fell. West New York argued there were no genuine issues of fact about its lack

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

The trial court granted summary judgment to both defendants on July 6,

2018. It explained plaintiff did not provide expert testimony to show that the

depressions in the asphalt were caused by Suez's water valve and cover, that the

depressions constituted a dangerous condition or that Suez had knowledge of

them. "[P]laintiff [could not] identify which particular area of the two water

valves and covers" had caused her fall. Summary judgment was granted to West

New York because the court found there was no dispute of fact West New York

had actual or constructive notice of the depressions or that its actions or

inactions were palpably unreasonable. Plaintiff could not "identify which defect

was the one which caused her to fall" and that precluded her from "sustain[ing]

her burden of [proving] a dangerous condition." On August 17, 2018, the trial

court denied plaintiff's motion for reconsideration because it simply

"recapitulate[d] arguments previously made."

On appeal, plaintiff argues that the trial court erred by denying her motion

to extend discovery and by barring her liability expert report and testimony

A-5913-17T4
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because the case presented exceptional circumstances. She contends the court

should not have granted summary judgment to West New York or Suez because

she presented sufficient credible evidence about each element of her claim and

sufficiently identified the defect causing her fall. She argued summary judgment

motions were premature because they were returnable sooner than thirty days

prior to trial.2 Plaintiff argues the court erred by denying reconsideration of the

challenged orders.

II.

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

same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017).

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." Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,

199 (2016) (quoting R. 4:46-2(c)).

2
When properly calculated, the motion was returnable more than thirty days
prior to trial. R. 4:46-1. This point does not merit further discussion. R. 2:11-
3(e)(1)(E).
A-5913-17T4
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We agree with the trial court that summary judgment was appropriate.

"To prevail on a claim of negligence, a plaintiff must establish four elements:

(1) that the defendant owed a duty of care; (2) that the defendant breached that

duty; (3) actual and proximate causation; and (4) damages." Fernandes v. DAR

Dev. Corp., 222 N.J. 390, 403-04 (2015).

Plaintiff claims that she fell because of a depression in the roadway around

the water valve cap and not because of the water cap itself. "[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." Morris v. T.D. Bank, 454 N.J. Super.
203, 209 (App. Div. 2018) (alteration in original) (quoting Robinson v. Vivirito,

217 N.J. 199, 208 (2014)). The scope of that duty is also a matter of law.

Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997).

There was no evidence Suez was responsible for the maintenance or repair

of the area around the water cap. There was no evidence Suez was aware of the

depressions around the caps or even how long they were present. The water cap

itself was flat and not the cause of the fall according to plaintiff. Based on the

undisputed record, plaintiff did not establish Suez had a duty to her to maintain

the area around the caps. In the absence of a duty, there was no liability by Suez

for negligence.

A-5913-17T4
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Plaintiff was not certain which depression in the road was the cause of her

accident. Proximate cause consists of "'any cause which in the natural and

continuous sequence, unbroken by an efficient intervening cause, produces the

result complained of and without which the result would not have occurred.'"

Townsend v. Pierre, 221 N.J. 36, 52 (2015) (quoting Conklin v. Hannoch

Weisman, 145 N.J. 395, 418 (1996)).

[T]o prove the element of causation, plaintiff[] bear[s]
the burden to 'introduce evidence which affords a
reasonable basis for the conclusion that it is more likely
than not that the conduct of the defendant was a cause
in fact of the result. A mere possibility of such
causation is not enough; and when the matter remains
one of pure speculation or conjecture, or the
probabilities are at best evenly balanced, it becomes the
duty of the court to direct a verdict for the defendant.'

[Townsend, 221 N.J. at 60-61 (quoting Davidson v.
Slater, 189 N.J. 166, 185 (2007)).]

Plaintiff cannot show which hole was the proximate cause of her accident

because she is not certain where she fell. She argued that the water valve cap

may have caused the depression in the roadway, but she did not have an expert

to support that as a theory of causation. On this record, plaintiff was not able to

establish her accident was caused by any condition attributable to Suez.

A-5913-17T4
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Plaintiff must prove liability against West New York under the TCA. A

public entity is responsible for a dangerous condition of public property. To

establish liability, plaintiff must prove:

that the property was in dangerous condition at the time
of the injury, that the injury was proximately caused by
the dangerous condition, that the dangerous condition
created a reasonably foreseeable risk of the kind of
injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an
employee of the public entity within the scope of his
employment created the dangerous condition; or

b. a public entity had actual or constructive notice of
the dangerous condition under . . . [ N.J.S.A.] 59:4-3 a
sufficient time prior to the injury to have taken
measures to protect against the dangerous condition.

[N.J.S.A. 59:4-2.]

The term "dangerous condition" is defined 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). There must be a defect in the "physical condition of the property

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

City of Atlantic City, 199 N.J. Super. 535, 540 (App. Div. 1985)).

Because plaintiff cannot identify the hole that caused her fall, she is not

able to prove what condition of public property was dangerous or even that she

A-5913-17T4
9
was using it with the due care in a manner that was reasonably foreseeable. She

did not establish how long the depressions were present in either location ,

whether the public entity was or should have been aware of them or what was

palpably unreasonable 3 about West New York's conduct in this location. There

was no evidence West New York had notice of any problem with the roadway

generally, or more specifically, for pedestrians in that area. Plaintiff did not

show what behavior by the public entity was such that no prudent person would

approve of its course of action or inaction. Because none of these facts was

disputed, plaintiff could not establish liability by West New York under N.J.S.A.

59:4-2.

III.

Plaintiff contends the court abused its discretion in the February 16, 2018

order by limiting the discovery extension to the issue of plaintiff's surgery. She

contends she needed additional time due to exceptional circumstances outside

her control, the exercise of due diligence and the complexity of the litigation.

3
The term "palpably unreasonable" is "behavior that is patently unacceptable
under any given circumstance . . . . [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."
Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (alterations in
original) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)).
A-5913-17T4
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Plaintiff argues the "totality of the circumstances" showed an abuse of discretion

by the trial court.

Rule 4:24-1(c) provides in pertinent part that "[n]o extension of the

discovery period may be permitted after an arbitration or trial date is fixed,

unless exceptional circumstances are shown." To extend discovery based on

exceptional circumstances, a moving party must show:

(1) why discovery has not been completed within time
and counsel's diligence in pursuing discovery during
that time; (2) the additional discovery or disclosure
sought is essential; (3) an explanation for counsel's
failure to request an extension of the time for discovery
within the original time period; and (4) the
circumstances presented were clearly beyond the
control of the attorney and litigant seeking the
extension of time.

[Castello v. Wohler, 446 N.J. Super. 1, 25 (App. Div.
2016) (quoting Rivers v. LSC P'ship, 378 N.J. Super.
68, 79 (App. Div. 2005)).]

Plaintiff never specified what circumstances prevented her from

completing discovery or were beyond the control of either her attorney or

herself. Discovery had been extended twice before the February 16, 2018 order.

On this record, the court did not abuse its discretion in limiting the discovery

extension to plaintiff's surgery.

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Plaintiff alleges the trial court abused its discretion because it barred

plaintiff's liability report. "In reviewing a trial court's evidential ruling, an

appellate court is limited to examining the decision for abuse of discretion."

Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citing Brenman v. Demello, 191 N.J.
18, 31 (2007)). The general rule as to the admission or exclusion of evidence is

that "[c]onsiderable latitude is afforded a trial court in determining whether to

admit evidence, and that determination will be reversed only if it constitutes an

abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998). Under this

standard, an appellate court should not substitute its own judgment for that of

the trial court, unless "the trial court's ruling 'was so wide of the mark that a

manifest denial of justice resulted.'" State v. Marrero, 148 N.J. 469, 484 (1997)

(quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

Plaintiff's liability report was served for the first time after the December

31, 2017 deadline for expert reports and importantly, was served after the court

denied plaintiff's motion to extend discovery. Plaintiff did not identify what

circumstances prevented service of the report prior to this, given the prior

discovery extensions. The court did not abuse its discretion in barring this

report.

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Plaintiff also appeals the denial of two motions for reconsideration. Our

review is limited. State v. Puryear, 441 N.J. Super. 280, 294 (App. Div. 2015).

Reconsideration is not appropriate merely because a litigant is dissatisfied with

a decision. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).

Reconsideration is appropriate only where "1) the [c]ourt has expressed its

decision based upon a palpably incorrect or irrational basis, or 2) it is obvious

that the [c]ourt either did not consider, or failed to appreciate the significance

of probative, competent evidence." Ibid.

Plaintiff's motions for reconsideration merely restated her prior

arguments. The court did not abuse its discretion in denying these motions.

After carefully reviewing the record and the applicable legal principles,

we conclude that plaintiff's further arguments are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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