DIANA ACEVEDO v. CITY OF MILLVILLE

NOT FOR PUBLICATION WITHOUT THE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-0988-20

DIANA ACEVEDO,

          Plaintiff-Appellant,

v.

CITY OF MILLVILLE,

          Defendant-Respondent,

and

SOUTH JERSEY GAS
COMPANY,

     Defendant.
_________________________

                   Argued November 29, 2021 – Decided December 17, 2021

                   Before Judges Sumners and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cumberland County, Docket No. L-0404-18.

                   Bruce A. Wallace argued the cause for appellant.
            Mark W. Strasle argued the cause for respondent
            (Madden & Madden, PA, attorneys; Patrick J. Madden
            and Mark W. Strasle, on the brief).

PER CURIAM

      In this New Jersey Tort Claims Act (TCA),  N.J.S.A. 59:1-1 to -12-3,

negligence suit against defendant City of Millville (City), plaintiff Diana

Acevedo's complaint alleges she suffered personal injuries when she stepped

into a "depression or hole" while walking on South High Street in the City.

Plaintiff alleges the City's negligent maintenance of the street created the

purported dangerous condition that caused her injuries.

      The trial court granted the City's motion for summary judgment, finding

the City immune from liability under  N.J.S.A. 59:4-2 because plaintiff failed to

present sufficient evidence establishing the depression or hole constitutes a

dangerous condition within the meaning of  N.J.S.A. 59:4-1(a).            Plaintiff

contends the court erred by granting summary judgment because there is a

genuine issue of material fact as to whether the depression or hole is a dangerous

condition. We disagree and affirm.

                                        I.

      We discern the following undisputed facts from the parties' Rule 4:46-2

statements and the record of the proceedings before the motion court. On June


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8, 2018, plaintiff parked her vehicle on South High Street. She chose not to

walk on the available pedestrian sidewalk on the right side of the street, and

instead walked in the street toward her destination, the City's municipal

building. Plaintiff testified "[e]verybody walks on that roadway because there's

really no traffic there and it's, like, right there in front of the court, in front of

the police station," and that "there were other people walking on the . . . street

with" her. As plaintiff walked on the roadway, "both of [her] feet went into a

dip" and she "felt a bad pain – mostly in [her] left foot."1

      Plaintiff photographed the "depression" in the roadway she claims

constituted the dangerous condition that caused her injuries. The City retained

an expert engineer to examine the depression and determine if it constituted a

dangerous condition. The engineer found the depression ranged in depth from

one-half inch to one-and-two-tenths of an inch and was approximately five-and-

six-tenths-feet wide and one-and-nine-tenths-feet long. The engineer noted the

depression was "located in the roadway[] and not in a sidewalk or crosswalk"

and opined it constituted "an acceptable lift for a temporary pavement patch [in




1
  The nature and extent of plaintiff's injuries are not detailed in the summary
judgment record.
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the roadway]" under applicable New Jersey Department of Transportation

regulations.

      The City's municipal engineer also investigated the depression and

reported it was a "patch . . . over an old water service leak" from approximately

two years earlier. The patch repair was made by the City's Water Department.

The Water Department's superintendent testified that repairs to a leaking water

line on South High Street were made in 2014. The superintendent testified that

photographs of the depression showed cigarette butts and accumulated dirt, and

that it looked like the depression was there for a couple of months.

      Plaintiff filed a complaint alleging the City's negligent failure to maintain

South High Street resulted in the depression that caused her to fall and suffer

personal injuries. Following the completion of discovery, the City moved for

summary judgment. In a written statement of reasons granting the motion, the

court determined plaintiff failed to present sufficient evidence establishing the

depression in the street constituted a dangerous condition within the meaning of

 N.J.S.A. 59:4-1(a) and  N.J.S.A. 59:4-2. The court reasoned the street was

intended for vehicular traffic, and the depression "is clearly not a dangerous

condition for vehicle traffic, the intended use of the roadway." The court further

explained there was a sidewalk available "less than ten feet away that [led] from


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plaintiff's vehicle to her intended destination, the municipal building." The

court found that "[t]o permit municipal liability here would create a heavy

burden upon a governmental entity to ensure that every inch of city streets are

paved smooth and without any uneven surfaces even when they provide a

sidewalk for pedestrians to use."     The court granted defendant's summary

judgment motion because "no reasonable jury could find [the depression] to be

a 'dangerous condition' as defined in the TCA . . . ." Plaintiff appeals from the

court's summary judgment order.

                                       II.

      We conduct a de novo review of an order granting a summary judgment

motion, Globe Motor Co. v. Igdalev,  225 N.J. 469, 479 (2016), and we apply the

same standard as the trial court, State v. Perini Corp.,  221 N.J. 412, 425 (2015).

In considering a summary judgment motion, "both trial and appellate courts

must view the facts in the light most favorable to the non-moving party, which

in this case is plaintiff." Bauer v. Nesbitt,  198 N.J. 601, 604 n.1 (2009) (first

citing R. 4:46-2(c); and then citing Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995)). Summary judgment is proper if the record demonstrates

"no genuine issue as to any material fact challenged and that the moving party

is entitled to a judgment . . . as a matter of law." Burnett v. Gloucester Cnty.


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Bd. of Chosen Freeholders,  409 N.J. Super. 219, 228 (App. Div. 2009) (quoting

R. 4:46-2(c)). Issues of law are subject to the de novo standard of review, and

the trial court's determination of such issues is accorded no deference. Kaye v.

Rosefielde,  223 N.J. 218, 229 (2015).

      Public entities are presumptively "immune from tort liability unless there

is a specific statutory provision imposing liability." Kahrar v. Borough of

Wallington,  171 N.J. 3, 10 (2002). "Under the TCA, immunity [for tort liability]

is the rule and liability is the exception." Posey v. Bordentown Sewerage Auth.,

 171 N.J. 172, 181 (2002). Thus, "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. Cnty. of Essex,  209 N.J. 51, 65 (2012)

(quoting Kahrar,  171 N.J. at 3); see also  N.J.S.A. 59:2-1(a) ("Except as

otherwise provided by [the TCA], a public entity is not liable for an injury,

whether such injury arises out of an act or omission of the public entity . . . .").

      The TCA allows imposition of tort liability against public entities for

injuries caused by conditions of their property, but only based on limited

circumstances. Under  N.J.S.A. 59:4-2, a public entity has tort liability for

injuries caused by the entity's property only where it is established: (1) the

public entity's "property was in dangerous condition at the time of the injury";


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(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 dangerous condition[.]" See also Vincitore

v. N.J. Sports & Expo. Auth.,  169 N.J. 119, 124-25 (2001). 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."  N.J.S.A. 59:4-2.

      A plaintiff asserting a tort claim against a public entity for injuries

allegedly caused by a condition on its property must present evidence satisfying

each of the elements of a cause of action under  N.J.S.A. 59:4-2. Polzo,  209 N.J.

at 66; see also Carroll v. N.J. Transit,  366 N.J. Super. 380, 386 (App. Div. 2004)

(explaining  N.J.S.A. 59:4-2 "places the burden squarely on the plaintiff to prove

each of its elements"). A failure to present sufficient evidence establishing any

element of a cause of action under  N.J.S.A. 59:4-2 requires dismissal of the

claim. Polzo,  209 N.J. at 66.

      Here, the court granted the City summary judgment based on its finding

plaintiff failed to present sufficient evidence establishing the depression in the


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roadway constituted a dangerous condition of property under  N.J.S.A. 59:4- -2.2

Under the TCA, a 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). Thus, the issue presented is whether the undisputed facts establish,

as a matter of law, that the depression in the street created a substantial risk of

injury when the property was used with due care. See Garrison v. Twp. of

Middletown,  154 N.J. 282, 287 (1998).

      "[N]ot every defect in a [street] . . . is actionable" under  N.J.S.A. 59:4-2.

Polzo,  209 N.J. at 64 (quoting Polyard v. Terry,  160 N.J. Super. 497, 508 (App.

Div. 1978), partially overruled on other grounds by Cartel Capital Corp. v.



2
   Based on the record presented on appeal, it appears the City's summary
judgment motion was based solely on the claim plaintiff did not have evidence
establishing the first element of a cause of action under  N.J.S.A. 59:4-2 — that
the depression constituted a dangerous condition. And, as noted, the court
granted summary judgment based exclusively on its determination the
depression did not constitute a dangerous condition as a matter of law. We
therefore limit our de novo review of the record to that element of plaintiff's
cause of action under  N.J.S.A. 59:4-2, and do not address defendant's argument
on appeal that it is also entitled to summary judgment because plaintiff lacked
evidence the City's action or inaction concerning the alleged dangerous
condition was palpably unreasonable. That issue was not addressed or decided
by the motion court and our de novo review of the summary judgment record
does not permit or require that we address the issue "tabula rasa." Est. of
Doerfler v. Fed. Ins. Co.,  454 N.J. Super. 298, 301-02 (App. Div. 2018).
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Fireco of N.J.,  81 N.J. 548, 410 (1980)). To pose a "'substantial risk of injury'

a condition of property cannot be minor, trivial, or insignificant. However, the

defect cannot be viewed in a vacuum. Instead, it must be considered together

with the anticipated use of the property . . . ." Atalese v. Long Beach Twp.,  365 N.J. Super. 1, 5 (App. Div. 2003).

      "[A] dangerous condition[, however,] can be found to exist only when the

public entity's property 'is used with due care.'" Garrison,  154 N.J. at 287.

Where a plaintiff alleges a dangerous condition in a roadway, it must be proven

that "the defect create[d] 'a substantial risk of injury' when the [roadway] is used

with due care 'in the manner in which it is reasonably foreseeable it will be

used.'" Polyard,  160 N.J. Super. at 508.

      "If a public entity's property is dangerous only when used without due

care, the property is not in a 'dangerous condition'" under  N.J.S.A. 59:4- -2.

Garrison,  154 N.J. at 287. "When the property poses a danger to all users, an

injured party may establish that property was in a dangerous condition

notwithstanding his or her failure to exercise due care." Id. at 292.

      The phrase "used with due care" means an "objectively reasonable" use.

Garrison,  154 N.J. at 291. "A use that is not objectively reasonable from the

community perspective is not one 'with due care.' To this extent, 'used with due


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care' refers not to the conduct of the injured party, but to the objectively

reasonable use by the public generally." Ibid.

      The Court in Garrison explained a court must engage in a two-part

analysis to determine whether a plaintiff alleging injury based on a purported

dangerous condition exercised due care under  N.J.S.A. 59:4-2(a). Id. at 292;

see also Vincitore,  169 N.J. at 126 (explaining the Garrison standard); Buddy v.

Knapp, __ N.J. Super. __, __ (App. Div. 2021) (slip op. at 34). "Once a

dangerous condition is found to exist," courts must identify: (1) "whether the

property poses a danger to the general public when used in [a] normal,

foreseeable manner," and (2) "whether the nature of the . . . activity is 'so

objectively unreasonable' that the condition of the property cannot reasonably

be said to have caused the injury." Buddy, __ N.J. Super. at __ (slip op. at 34)

(quoting Vincitore,  169 N.J. at 125).

      "Whether property is in a 'dangerous condition' is generally a question for

the" jury, as "the finder of fact." Vincitore,  169 N.J. at 123. However, a court

may properly decide whether property is in a dangerous condition under

 N.J.S.A. 59:4-1(a) where it determines a reasonable factfinder could not find the

plaintiff established the property was in a dangerous condition. Id. at 124; see

also Polyard,  160 N.J. Super. at 510 (explaining a court may determine if a


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property is in a dangerous condition under  N.J.S.A. 59:4-1(a) where the

evidence does not permit "reasonable minds to differ as to whether" the

condition is dangerous); cf. Daniel v. N.J. Dep't of Transp.,  239 N.J. Super. 563,

573 (App. Div. 1990) (finding trial court properly allowed a jury to consider a

public entity's liability under  N.J.S.A. 59:4-2, where a reasonable jury could

conclude the property was in a dangerous condition).

      Measured against these principles, we are convinced no reasonable jury

could conclude the depression in the street "create[d] a substantial risk of injury

when" the street was "used with due care in a manner in which it is reasonably

foreseeable that it [would] be used."  N.J.S.A. 59:4-1(a); Garrison,  154 N.J. at
 287. Accepting her version of the facts as true, plaintiff was injured after opting

to walk down the middle of the street to the municipal building instead of using

the available sidewalk immediately adjacent to her car. "Roadways generally

are intended for and used by operators of vehicles," Polzo,  209 N.J. at 71, and

"[w]here sidewalks are provided[,] it [is] unlawful for any pedestrian to walk

along and upon an adjacent roadway,"  N.J.S.A. 39:4-34. Indeed, it is clearly

dangerous for pedestrians to walk within the lanes of a street intended for

vehicular traffic.




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      The record lacks any evidence the traffic lanes of South High Street had

been used as a pedestrian pathway such that it was reasonably foreseeable that

individuals would use it, as opposed to the adjacent sidewalk, as a pedestrian

pathway to the municipal building. We are not convinced plaintiffs' conclusory

assertion "everybody walks on the roadway," her claim others walked on the

street when she did, and her argument it should have been anticipated

individuals would walk down the middle of the street to get to the municipal

building establish it was reasonably foreseeable the street's vehicular traffic

lanes would be used unlawfully,  N.J.S.A. 39:4-34, and dangerously as a

pedestrian pathway. The evidence further established the depression was within

the permissible limitations imposed by          New Jersey Department of

Transportation regulations for the only use of the street that was reasonably

foreseeable — vehicular traffic. See Polzo,  209 N.J. at 64 (noting "[p]otholes

and depressions are common features of our roadways"). The motion court

correctly concluded plaintiff failed to present evidence the depression

constituted a dangerous condition creating a substantial risk of injury when the

street was used in a reasonably foreseeable manner.

      Plaintiff also did not present evidence establishing another essential

element of a dangerous condition under  N.J.S.A. 59:4-1(a). The undisputed


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facts established plaintiff did not exercise due care as she walked in the traffic

lanes of South High Street. The users of the street included vehicles, and there

is no evidence the depression posed any risk of injury to the vehicle operators.

Because the property did not pose a danger to all users of the street , plaintiff

was required to present evidence she used the property with due care to satisfy

her burden of proving a dangerous condition under  N.J.S.A. 59:4-1(a).

Garrison,  154 N.J. at 292.

      The undisputed facts establish plaintiff did not exercise due care under

 N.J.S.A. 59:4-1(a). She did not use the street in an "objectively reasonable"

manner based on a "community perspective" because the only "objectively

reasonable use" of the street "by the public generally" is for vehicular traffic.

Garrison,  154 N.J. at 291. Again, walking down the middle of the street where

sidewalks are available is unlawful,  N.J.S.A. 39:4-34, and, as recognized by the

Court in Polzo, roadways are intended for vehicular traffic,  209 N.J. at 71. The

record is bereft of any evidence that an objectively reasonable use of South High

Street by the public generally includes walking in the middle of its vehicular

traffic lanes. In fact, the evidence establishes that it is not. Plaintiff therefore

failed to present evidence establishing she exercised the due care required to




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prove the depression in the street constituted a dangerous condition under

 N.J.S.A. 59:4-1(a) and  N.J.S.A. 59:4-2(a).

      Affirmed.




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