JANE D'ALESSIO v. COMMISSIONER OF FIRE DISTRICT 2, PORT READING FIRE DEPARTMENT

NOT FOR PUBLICATION WITHOUT THE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-3444-19

JANE D’ALESSIO and
NICHOLAS D’ALESSIO,

          Plaintiffs-Appellants,

v.

COMMISSIONER OF FIRE
DISTRICT #2, PORT READING
FIRE DEPARTMENT #2 and
TOWNSHIP OF WOODBRIDGE,1

     Defendants-Respondents.
______________________________

                   Submitted March 8, 2021 – Decided March 29, 2021

                   Before Judges Mayer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Docket No. L-6382-18.

                   Joseph P. Schiappa, attorney for appellants.


1
   Defendant Port Reading Fire District #2 was improperly pleaded as Port
Reading Fire Department #2. In January 2018, plaintiffs executed a stipulation
of dismissal with prejudice as to their claims against defendants Commissioner
of Fire District #2 and the Township of Woodbridge.
            James P. Nolan and Associates, LLC, attorneys for
            respondents (Brian A. Bontempo, on the brief).

PER CURIAM

      Plaintiffs Jane D'Alessio and her husband Nicholas D'Alessio 2 appeal

from a March 13, 2020 order granting summary judgment to defendant Port

Reading Fire District #2 and dismissing their claims with prejudice. In addition,

plaintiffs appeal from an April 24, 2020 order denying their motion for

reconsideration. Because there are disputed issues of material fact relevant to

the application of immunity to a public entity under the Tort Claims Act (TCA),

 N.J.S.A. 59:1-1 to 12-3, we reverse and remand.

      On February 25, 2017, plaintiff attended her grandchild's birthday party

at defendant's firehouse. At approximately 5 o'clock in the evening, while on

her way to the women's bathroom, plaintiff's foot caught on the marble saddle

separating the wood floor in the hallway and the tile floor in the bathroom.

Plaintiff tripped and fell onto the bathroom floor. At the time, plaintiff was

wearing soft toe shoes. As a result of the fall, plaintiff suffered serious injury

to her forehead, right arm, and right shoulder, and required shoulder replacement



2
   Nicholas D'Alessio's claim for loss of consortium is derivative of his wife's
personal injury claims. We use plaintiff to refer to Jane D'Alessio and plaintiffs
to refer to both Jane and Nicholas D'Alessio.
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surgery.   Following surgery, plaintiff continued to suffer lingering effects

attributable to her fall.

      Plaintiffs' daughter took photographs of the saddle immediately after her

mother fell. According to plaintiffs, the photographs showed the following

dangerous conditions: (1) a height differential between the wood flooring in the

hallway and the marble saddle 3 and (2) cracks in the worn saddle, causing the

middle piece of the saddle to become loose and removable. Three witnesses,

plaintiff, plaintiffs' daughter, and plaintiff's friend, described the condition of

the saddle on the day of plaintiff's fall.

      Plaintiffs retained James Kennedy, a professional engineer, as their

liability expert. Kennedy opined the height differential between the hallway

floor and the saddle was 13/16" based on measurements taken from the saddle

leading into the men's bathroom room.4 According to Kennedy, this height



 3 In 2016, defendant renovated the hallway flooring but did not replace the
bathroom saddle. According to plaintiffs' expert, this created the height
differential between floor and the saddle, causing plaintiff's fall.
4
  Several months after plaintiff fell, defendant replaced the saddle leading into
the women's bathroom. As a result, the original saddle was unavailable for
inspection by plaintiffs' expert. However, based on the photographs taken by
plaintiffs' daughter contemporaneous with her mother's fall, plaintiffs' expert
concluded the saddle that had been in the women's bathroom matched the saddle
remaining in the men's bathroom.
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differential failed to conform with the International Code Council/American

National Standard Institute (ICC/ANSI) standards, New Jersey Uniform

Construction Code, and ASTM International Standard Practice.            Plaintiffs'

expert concluded, "The failure of the defendant . . . to provide and maintain a

reasonably safe premise in accordance with adopted codes and accepted safety

standards, caused [plaintiff] to fall and sustain injury."

      Defendant produced a safety checklist based on inspections conducted at

the firehouse on a "monthly/bimonthly" basis.          The inspection performed

approximately a month prior to plaintiff's fall did not indicate whether the saddle

to the women's bathroom was examined.

      In October 2018, plaintiffs filed a complaint alleging defendant's

carelessness and negligence caused plaintiff's injuries.      Defendant filed an

answer, and the parties exchanged discovery.

      After completing discovery, defendant moved for summary judgment

based on TCA immunity. Plaintiffs filed opposition and the motion judge heard

counsels' arguments on March 13, 2020.

      In a ruling from the bench, the judge granted defendant's motion. He

determined plaintiffs failed to demonstrate liability sufficient to overcome the

immunity granted to defendant under the TCA. The judge concluded plaintiffs


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offered no evidence establishing the existence of a dangerous condition. He also

held plaintiffs were unable to demonstrate defendant's had actual or constructive

notice of a dangerous condition or that defendant's conduct in failing to repair

the condition was palpably unreasonable.

      On the absence of a dangerous condition, the judge accepted defendant's

facts rather than viewing the facts in the light most favorable to plaintiffs. The

judge concluded "the height differential of a half inch or three-quarters of an

inch cannot be categorized as a dangerous condition to trigger liability" despite

the contrary opinion offered by plaintiffs' expert.

      Regarding notice of a dangerous condition, again the judge accepted

defendant's facts despite the evidence proffered by plaintiffs in opposition to the

summary judgment motion. The judge held plaintiffs presented no proof of

defendant's notice, either actual or constructive, of the saddle's dangerous

condition. He found no evidence of a dangerous condition "exist[ing] for such

a period of time that [defendant,] in the exercise of due care, should have

discovered the condition and its dangerous character."

      The judge also held plaintiffs failed to demonstrate defendant's conduct

was palpably unreasonable.      He found there was no evidence of any prior

complaints or reports related to the condition of the saddle. Further, based on


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plaintiff's prior visits to defendant's firehouse, the judge determined plaintiff

would have seen a dangerous condition had it existed prior to the date of her

fall.

        In rendering his decision, the judge explained "plaintiff is required to

establish every element in order for the defendant public entit[y] to be found

liable. And if the plaintiff failed to satisfy any of the three elements, the

plaintiffs' claim must fail as a matter of law." The judge stated, "from the motion

record there isn't any evidence, at least from what the [c]ourt reviewed, that the

saddle constituted a dangerous condition prior to the slip and fall at issue here."

Relying on defendant's safety checklist completed about one month prior to

plaintiff's fall, the judge explained, "[the] safety checklist makes no mention of

any trip hazards in the building or on the grounds."

        Based on plaintiff's deposition testimony, the judge noted plaintiff "never

observed any problems with the woman's restroom saddle" despite plaintiff

having attended events at defendant's firehouse on several prior occasions. He

remarked plaintiffs took no depositions of defendant's representatives "to

establish that there were prior issues or reports that the saddle was loose or

broken prior to the incident." The judge further explained that, even assuming

fact issues regarding the existence of a dangerous condition and defendant's


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actual or constructive notice of such a dangerous condition, "the [c]ourt's

decision here that the alleged action or inaction of the defendants not to replace

the saddle does not meet the definition of 'palpably unreasonable' . . . under the

statute." He concluded, "the failure to . . . meet [the palpably unreasonable]

element, if not one or two of the others, but at least the failure to meet that third

element does warrant the entry of summary judgment as a matter of law in favor

of defendants."

      Plaintiffs filed a motion for reconsideration. In an April 24, 2020 order

and accompanying written statement of reasons, the judge denied the motion and

restated his prior factual findings and legal conclusions. He reiterated plaintiffs

"failed to present any evidence whatsoever to prove that a dangerous condition

existed before the [p]laintiff[']s[] accident."

      In denying plaintiffs' reconsideration motion, the judge explained " [t]he

photographs, affidavits and other evidence provided by [p]laintiffs document the

condition of the bathroom saddle after plaintiff . . . struck it with her foot." The

judge stated the photographs offered as evidence in opposition to summary

judgment were taken by plaintiffs' daughter "some nine months after the subject

accident purporting to show a broken door saddle with a crack line and chips on




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the surface." 5 The judge noted he considered "all the evidence in the motion

record . . . and viewed it in the light most favorable to plaintiffs . . . ." prior to

granting defendant's summary judgment motion.

      On appeal, plaintiffs argue the motion judge erred in granting defendant's

motion for summary judgment because there were material disputed facts

regarding the dangerous condition of the women's bathroom saddle and

defendant's notice of the dangerous condition such that defendant's conduct was

palpably unreasonable. We agree.

      When reviewing an order granting or denying summary judgment, we

apply the standard under Rule 4:46-2(c) the same as applied by the trial court

when considering a summary judgment motion. Globe Motor Co. v. Igdalev,

 225 N.J. 469, 479 (2016) (citing Bhagat v. Bhagat,  217 N.J. 22, 38 (2014)).

Summary judgment should be granted when the motion evidence before the



5
   In reviewing the record, plaintiffs' interrogatory responses attached three
photographs of the women's bathroom saddle "taken on February 25, 2017,"
which is the date plaintiff fell. Plaintiffs' daughter filed a certification stating
she used her cellphone to take photographs of the saddle immediately after her
mother's fall. Plaintiff's friend also filed a certification in opposition to
summary judgment, noting her observation of the broken saddle on the day
plaintiff fell. Other photographs attached to plaintiffs' interrogatory responses
were taken by plaintiffs' daughter in November 2017. This may explain the
judge's statement that plaintiffs' photographs were taken nine months after the
incident.
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court "show[s] 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).

      The trial court must first determine whether there is a genuine issue of

fact. Walker v. Atl. Chrysler Plymouth,  216 N.J. Super. 255, 258 (App. Div.

1987).   The motion judge is required to determine "whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it

is so one-sided that one party must prevail as a matter of law." Liberty Surplus

Ins. Corp., Inc. v. Nowell Amoroso, P.A.,  189 N.J. 436, 445-46 (2007) (quoting

Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 536 (1995)). In addition,

the motion judge shall review the facts in the light most favorable to the party

opposing summary judgment. Globe Motor Co.,  225 N.J. at 479.

      The fundamental principles embodied in the TCA include the notion that

governmental immunity is the rule unless the TCA itself creates an

exception. Kepler v. Taylor Mills Developers, Inc.,  357 N.J. Super. 446, 453

(App. Div. 2003). In enacting the TCA, "[t]he Legislature had 'rejected the

concept of a statute that imposed liability with specific exceptions . . . .

[Instead], public entities are immune from liability unless they are declared to

be liable by enactment."' Macaluso v. Knowles,  341 N.J. Super. 112, 117 (App.


                                                                           A-3444-19
                                        9 Div. 2001) (second and third alterations in original). See also Maison v. N.J.

Transit Corp., __ N.J. __ , __ (2021) (slip op. at 23-25).

       N.J.S.A. 59:4-2 provides 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) "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 . . . ." Additionally,

a public entity is not liable "for a dangerous condition of its public property if

the action the entity took to protect against the condition or the failure to take

such action was not palpably unreasonable." Ibid. A plaintiff must prove the

public entity's action or inaction was palpably unreasonable. Coyne v. N.J.

Dept. of Transp.,  182 N.J. 481, 493 (2005).

      The TCA defines "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). "[T]he critical question . . . is whether a reasonable factfinder could

have concluded that plaintiff demonstrated that the property was in a 'dangerous


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condition.'" Vincitore v. N.J. Sports & Exposition Auth.,  169 N.J. 119, 124

(2001) (citing Daniel v. N.J. Dep't of Transp.,  239 N.J. Super. 563, 573 (App.

Div. 1990)).

      On this record, we are satisfied there were genuine material disputed facts

regarding the existence of a dangerous condition, defendant's notice of the

condition, and defendant's conduct regarding the condition to preclude the entry

of summary judgment as a matter of law.

      "[U]nder     [our]    indulgent        summary-judgment      standard        of

review," requiring the record to be viewed in the light most favorable to

plaintiffs, we disagree plaintiffs failed to present evidence of a dangerous

condition. Polzo v. Cty. of Essex,  209 N.J. 51, 75 (2012). Although plaintiffs'

evidence is subject to challenge on credibility grounds, for the purpose of

summary judgment, we must accord plaintiffs every favorable inference. Here,

plaintiffs submitted certifications signed by plaintiff, plaintiffs' daughter, and

plaintiff's friend regarding the condition of the women's bathroom saddle on the

date of plaintiff's fall. The three women described the saddle as deteriorated,

worn, and cracked, and observed the middle section of the saddle was loose and

removable. The observations of these witnesses, and the photographs taken

contemporaneous with the incident, created a material disputed fact regarding


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the existence of a dangerous condition.          Further, plaintiffs' expert and

defendant's expert agreed the saddle's threshold measured 13/16" higher than the

flooring in the hallway. Based on these facts, whether the women's bathroom

saddle constituted a dangerous condition should have been presented to a jury

for resolution. We are satisfied plaintiffs have shown a reasonable jury could

find a dangerous condition to overcome immunity under the TCA.

      In addition, if plaintiffs prove a dangerous condition existed at the time of

the accident, we are persuaded a jury could similarly conclude the dangerous

condition was the proximate cause of the accident and created a reasonably

foreseeable risk of the kind of injuries sustained. See Daniel,  239 N.J. Super. at
 595 (quoting Polyard v. Terry,  160 N.J. Super. 497, 511 (App. Div. 1978))

("Proximate cause is '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.'"). Defendant will have

an opportunity at trial to present evidence that plaintiff kicked the saddle with

her shoe while entering the women's bathroom, causing the saddle to crack and

creating a superseding factor leading her to fall. A jury must resolve the

proximate cause question whether the dangerous condition created a reasonably




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foreseeable risk that plaintiff would trip over a worn, cracked, and loose saddle

and suffer resulting injuries.

      As to notice of the dangerous condition, plaintiffs asserted defendant had

constructive notice of the saddle's condition prior to the accident because the

saddle was worn, chipped, and cracked at the time of plaintiff's fall.

Constructive notice of a dangerous condition occurs "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."  N.J.S.A. 59:4-3(b). "A

defendant has constructive notice when the condition existed 'for such a length

of time as reasonably to have resulted in knowledge and correction had the

defendant been reasonably diligent.'"         Troupe v. Burlington Coat Factor

Warehouse Corp.,  443 N.J. Super. 596, 602 (App. Div. 2016) (quoting

Parmenter v. Jarvis Drug Stores, Inc.,  48 N.J. Super. 507, 510 (App. Div. 1957)).

"Constructive notice can be inferred in various ways," including "characteristics

of the dangers giving rise to the slip and fall or eyewitness testimony . . . ." Ibid.

(citations omitted).

      Here, the motion judge opined defendant did not have constructive notice

because there were no prior reports or complaints regarding the saddle. In


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addition, he concluded plaintiff failed to prove a dangerous condition existed

before the accident. However, plaintiffs proffered evidence the deteriorated and

worn condition of the saddle existed for a sufficient time period that defendant

knew or should have known the condition was dangerous. In addition, plaintiff

presented evidence she was wearing soft toe shoes at the time and her shoes

could not have caused a marble saddle to crack and break.          Moreover, if

defendant regularly inspected the firehouse, the height differential between the

flooring and the saddle may have been open and obvious enough for defendant

to have discovered the dangerous condition in the exercise of due care.

      These fact issues should not have been evaluated and resolved by the

motion judge.    A jury should assess the credibility of plaintiffs' witnesses

regarding the condition of the saddle on the day of the accident and weigh that

testimony against any defense evidence or witnesses related to the condition of

the saddle. Based on the evidence, the jury will determine if, in the exercise of

due care, defendant "should have discovered the condition and its dangerous

character."  N.J.S.A. 59:4-3(b).

      We next consider plaintiffs' evidence that defendant's conduct was

palpably unreasonable to impose liability under the TCA. See Coyne,  182 N.J.

at 493;  N.J.S.A. 59:4-2. Palpably unreasonable conduct is "a more obvious and


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                                      14
manifest breach of duty and imposes a more onerous burden on the plaintiff."

Ogborne v. Mercer Cemetery Corp.,  197 N.J. 448, 459 (2009) (quoting Kolitch

v. Lindedahl,  100 N.J. 485, 493 (1985)). The term palpably unreasonable

"implies 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 i s

palpably unreasonable, it must be manifest and obvious that no prudent person

would approve of its course of action or inaction." Ibid. (quoting Kolitch,  100 N.J. at 493).

      Generally, the issue of palpably unreasonable conduct is a question

of fact for the jury. See Vincitore,  169 N.J. at 130. 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." Black v. Borough of Atl. Highlands,  263 N.J. Super. 445,

452 (App. Div. 1993).

      On this record, we are satisfied there are sufficient material disputed facts

requiring a jury to determine whether defendant's conduct was palpably

unreasonable under the circumstances. In addition, the judge failed to view the

facts in the light most favorable to plaintiffs on the issue of defendant's palpably

unreasonable conduct.       If defendant conducted monthly or bi-monthly


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inspections at the firehouse, as it claimed, a jury could reasonably determine

defendant's failure to notice the cracked and worn saddle was patently

unacceptable, requiring defendant to take immediate action to rectify the

condition.

      Because there were genuine disputed issues of material fact regarding

defendant's entitlement to immunity under the TCA, the judge erred in granted

summary judgment.

      Reversed and remanded. We do not retain jurisdiction.




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