DONELL L. PRINCE v. CITY OF ENGLEWOOD

NOT FOR PUBLICATION WITHOUT THE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-2959-18

DONELL L. PRINCE,

          Plaintiff-Appellant,

v.

CITY OF ENGLEWOOD
and PRISCILLA PAJELA,

     Defendant-Respondents.
_________________________

                   Submitted December 14, 2020 – Decided February 12, 2021

                   Before Judges Sabatino and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-1679-17.

                   Donell L. Prince, appellant pro se.

                   Keenan & Doris, LLC, attorneys for respondent City of
                   Englewood (Timothy O'Connor, on the brief).

                   Victoria M. Brown, attorney for respondent Priscilla
                   Pajela.

PER CURIAM
      Plaintiff appeals from the summary judgment orders dismissing his claims

against defendants. Plaintiff alleged he slipped on snow and fell on the same

day while walking on a street in Englewood and on the property owned by

defendant Priscilla Pajela, his landlord. We affirm.

      Claims against Englewood

      On the day of these events in March 2015, as plaintiff left the rooming

house where he lived, he noticed there was snow on the common walkways of

the rooming house property and the adjoining public sidewalks. Because snow

had been plowed from the street onto the sidewalks, plaintiff decided to walk in

the street. While doing so, plaintiff stated he fell and landed on his backside

and side of his body. He got up, continued on to a store to do his shopping, and

walked back to the rooming house. As plaintiff was on the rooming house

property, he said his foot "caught on something[] and [he] fell backward on [his]

back" and struck his head.

      Plaintiff alleged that Englewood, through its agents and employees, was

negligent in failing to remove the snow from public sidewalks and streets, and

the negligence caused him to fall and sustain injuries. Giving plaintiff all

legitimate inferences as we must, Rule 4:46-2(c), we are satisfied the trial court




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did not err in its grant of summary judgment to Englewood. Brill v. Guardian

Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995).

      It is well-established law in this state that public entities have absolute

immunity for all snow removal activities. Miehl v. Darpino,  53 N.J. 49, 54

(1968). The common law "immunity was based primarily on the limitless

liability that could be imposed on an entity, such as a state, county, municipality,

or turnpike authority, that had the responsibility to clean up numerous streets

and roads." Bligen v. Jersey City Hous. Auth.,  131 N.J. 124, 131 (1993); see

also Rochinsky v. State, Dep't of Transp.,  110 N.J. 399, 414-15 (1988) (holding

that the enactment of the Tort Claims Act did not abrogate common law snow

removal immunity); Lathers v. Twp. of West Windsor,  308 N.J. Super. 301, 305-

06 (App. Div. 1998) (holding that the municipality had immunity from suit

where the plaintiff slipped and fell on a patch of ice on publicly owned

sidewalk); Rossi v. Borough of Haddonfield,  297 N.J. Super. 494, 499-500

(App. Div. 1997) (holding the borough enjoyed snow removal immunity where

the plaintiff slipped and fell on ice in a municipal parking lot).

      Here, summary judgment was properly granted in favor of Englewood.

Plaintiff alleged he slipped and fell on a public street because of snow

conditions. Because Englewood enjoys immunity from liability for its snow


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removal activities, it cannot be held liable for plaintiff's alleged injuries. See

Rochinsky,  110 N.J. at 413-14.

      Claims against Pajela

      Plaintiff alleged in his complaint that Pajela and her employees were

negligent in removing snow and ice from the rooming house property and their

negligence caused him to slip and fall and suffer injuries.

      Plaintiff has an extensive medical history. He was involved in motor

vehicle accidents in 1991 and 1995 following which he complained of pain in

his neck and back. He treated with a neurologist and a neurosurgeon who

prescribed pain medication. He also underwent MRI testing of his neck and

back. Plaintiff has received Social Security Disability Insurance since 1997

because of his back injuries. At the time of his fall in March 2015, plaintiff was

under the care of a pain management doctor and was taking Percocet to manage

his chronic pain.

      During his deposition, plaintiff stated: "I never said that my injuries were

completely healed or anything like that. I would never say that."

      Plaintiff first sought treatment for the injuries he sustained in the March

2015 fall three weeks after the accident, returning to the pain management

doctor and neurologist. However, he never produced an expert report to provide


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an analysis of his pre-existing injuries and conditions and any injuries that may

have been caused by his fall. Nor did he present any evidence to differentiate

between the two falls. There was no medical expert to present the jury with an

opinion as to whether any of plaintiff's current complaints were causally related

to the fall on Pajela's property.

      A plaintiff has the burden to prove the elements of a negligence claim "by

some competent proof." Townsend v. Pierre,  221 N.J. 36, 51 (2015) (internal

quotations and citations omitted). This includes the element of proximate cause.

Plaintiff must prove any injuries he sustained were proximately caused by the

fall on the rooming house property.

      Because of plaintiff's complicated medical history and his ongoing

treatment at the time of his fall, he required expert opinion to prove proximate

cause. The medical issues presented here are beyond the ken of an average juror.

2175 Lemoine Ave. Corp. v. Finco, Inc.,  272 N.J. Super. 478, 490 (App. Div.

1994) (holding that expert testimony is necessary where proximate causation

cannot be established through common knowledge). Plaintiff had preexisting

injuries and an earlier fall on the same day. Therefore, he was required to obtain




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an expert to opine whether the fall at the rooming house caused a new injury.1

Without an expert report, plaintiff could not sustain his personal injury claims

pertaining to the fall.

      Plaintiff made additional allegations against Pajela in her capacity as a

rooming house operator. He alleged that Pajela and other unknown parties

harassed and intimidated plaintiff in an attempt to force him out of the rooming

house. Plaintiff alleged that he complained to Pajela in 2013 about drug use by

other tenants and cracked heating pipes which caused black mold in the rooming

house bathroom. After plaintiff reported his grievances to the Department of

Community Affairs in 2013, an inspector evaluated the property and found it

was in full compliance with the law.

      Plaintiff contended, that after the inspection, Pajela retaliated against

plaintiff by drilling holes into the walls and windows of his room to "blow []

drugs . . . [and] other chemical toxins into plaintiff[']s room[.]" Plaintiff alleged

Pajela and her agents and employees failed to comply with the Rooming and

Boarding Houses Act of 1979,  N.J.S.A. 55:13B-1 to -21, and Regulations

Governing Rooming and Boarding Houses, N.J.A.C. 5:27-1.1 to -14.1.                 In



1
  Plaintiff advised the trial court during oral argument that he was not pleading
an aggravation of any prior injury or condition.
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addition, he contended that Pajela and her employees intentionally harmed him

"by way of drugs" and "other chemical irritants," depriving him of a safe living

environment. Plaintiff did not produce any expert opinion relating his alleged

injuries to Pajela's conduct.

      In granting Pajela summary judgment, the trial court stated:

            The court find[s] no genuine issue of material fact.
            Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520
            (1995). To the extent plaintiff argues that his personal
            injury claims related to drug use by other boarders at
            his residence caused him illness and injury, were not
            dismissed by prior order of the court, the court finds
            there is no evidence, to include an expert report,
            medical or otherwise, which would relate the alleged
            injuries to the actions complained of nor how defendant
            was liable therefore.

            The balance of [the] allegations concerning harassment
            in 2013 are barred by  N.J.S.A. 2A:14-2. Plaintiff's
            amended complaint was filed in 2018. Allegations
            regarding incidents alleged to have occurred in 2013 or
            prior were adjudicated by the Bureau of Rooming and
            Boarding House Standards, which found [the boarding
            house] to be in full compliance with the Rooming and
            Boarding House Act and the Regulations governing
            Rooming and Boarding Houses.

            Plaintiff continues to reside at the boarding house.

      Again, in viewing the facts in the light most favorable to plaintiff as the

non-movant, we are satisfied he has not demonstrated a genuine issue of material

fact to withstand summary judgment.        R. 4:46-2. Plaintiff's complaints of

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violations of the Rooming House Act in 2013 were investigated and dismissed

by the regulating agency. Moreover, as discussed above, without an expert

opinion to connect his allegations of misconduct by Pajela or the other boarders

to an alleged injury or illness, plaintiff cannot support his claims.

      In light of our de novo determination that the trial court's grant of

summary judgment to defendants and the dismissal of all of plaintiff's claims

was supported by the record, we need not address plaintiff's remaining

contentions regarding the denial of other motions and cross-motions.

      Affirmed.




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