EDWARD GROSS VS. BOROUGH OF FORT LEE (L-5742-15, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5642-16T3

EDWARD GROSS and JUDY GROSS,

his wife,

Plaintiffs-Appellants,

v.

BOROUGH OF FORT LEE,

Defendant-Respondent,

and

CHURCH OF GOOD SHEPARD,

Defendant.

_______________________________

Argued July 2, 2018 – Decided July 23, 2018

Before Judges Carroll and Rose.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No. L-

5742-15.

Sheri A. Breen argued the cause for appellants

(Law Offices of Rosemarie Arnold, attorneys,

Natalie A. Zammitti Shaw, on the briefs).

Joanne M. Venino argued the cause for

respondent (Keenan & Doris, LLC, attorneys,

Ian C. Doris, of counsel, Joanne M. Venino,

on the brief).

PER CURIAM

Plaintiff Edward Gross1 appeals from the Law Division's June

9, 2017 summary judgment dismissal of his slip and fall negligence

complaint against defendant Borough of Fort Lee and from a July

21, 2017 order denying reconsideration. We affirm.

The facts, viewed most favorably to plaintiff, Brill v.

Guardian Life Insurance Company of America, 142 N.J. 520, 540

(1995), are accurately summarized in Judge Robert C. Wilson's June

9, 2017 written opinion as follows:

On or about September 4, 2014,

[p]laintiff . . . tripped over raised pavers

while walking on Parker Avenue in Fort Lee,

New Jersey. He fell to the ground and

sustained injuries. Neither he nor his wife

saw the raised pavers before he fell.

Plaintiff testified at his deposition that he

was familiar with the area and lived right

down the block from it. Plaintiff's wife

reported the condition to the Borough the day

after the accident.

As part of their duties and depending on

the season, the Fort Lee Department of Public

Works ("DPW") employees cut grass, collect

garbage, remove snow and remove leaves on

public property in the Borough, including

Parker Avenue. If, during the course of

performing these duties, DPW employees had

seen that the pavers on Parker Avenue where

[p]laintiff fell had shifted, they would have

reported it to their supervisor who would then

direct DPW employees to correct the condition,

1

In our opinion we refer to Edward Gross as plaintiff, although

we recognize Judy Gross, his wife, also has filed a derivative

claim for loss of consortium.

2 A-5642-16T3

per protocol. The DPW Assistant

Superintendent at the time of the accident,

Michael Meresca ("Meresca"), first learned of

the accident when he was informed by his then

supervisor, Tony Leone ("Leone"), that someone

had fallen and to send someone to fix it.

Meresca sent DPW employees to repair the

condition the same day he was informed of the

accident.

The public sidewalk on Parker Avenue where plaintiff

allegedly fell abuts the Fort Lee Museum, which is owned by the

Borough. Neither plaintiff nor his wife reported the condition

of the raised pavers to the Borough prior to his fall. The next

day, plaintiff's wife took photographs of the sidewalk where

plaintiff fell and, as indicated, reported the condition to the

Borough.

On June 19, 2015, plaintiff filed suit against the Borough 2

alleging a dangerous condition of property, and seeking damages

for his personal injuries, including related pain and suffering.

Because plaintiff's cause of action involved a public entity, he

was required to satisfy the mandates of the New Jersey Tort Claims

Act ("TCA"), N.J.S.A. 59:1-1 to -12-3.

During discovery, plaintiff produced the report of his expert

engineer, George Gianforcaro, P.E. Gianforcaro inspected the

2

Plaintiff also named Church of Good Shepherd as a defendant, but

it was subsequently dismissed from the litigation and is not a

party to this appeal.

3 A-5642-16T3

sidewalk on September 23, 2016, two years after the accident.

Because the Borough had repaired the pavers by that time,

Gianforcaro's conclusions were drawn from the photographs taken

by plaintiff's wife. By looking at the photographs, Gianforcaro

noted: "There is a 'Cluster' of Brick Pavers that are at a higher

elevation than the adjacent Brick Pavers. The 'cluster['] of

Brick Pavers consist[s] of [fifteen] to [twenty] Brick Pavers that

are one (1) to two (2) inches higher in elevation than the adjacent

Brick Pavers throughout the 'Cluster.'" Additionally, he

concluded,

The Raised Brick Pavers created . . .

dangerous, hazardous and palpably

unreasonable conditions for a person or

persons attempting to traverse the Public

Sidewalk. The Raised Brick Pavers in the

Public Sidewalk created a Walking Surface that

is not on a level, even and uniform plane with

the adjacent Walking Surfaces in the Public

Sidewalk. The Raised Brick Pavers have

existed for a long period of time. Based on

the Raised or "Upheaval" of Brick Pavers, it

is this Engineer's opinion that this condition

has existed for a long period of time. This

condition has existed for a period of more

than five (5) years.

Following the completion of discovery, the Borough moved for

summary judgment, and to bar Gianforcaro's report and testimony

as an inadmissible net opinion. The Borough argued plaintiff

failed to prove his fall was caused by a dangerous condition on

public property and, even if it existed, plaintiff did not

4 A-5642-16T3

demonstrate defendant had actual or constructive notice of the

alleged dangerous condition or that its actions in addressing the

condition were palpably unreasonable.

On June 9, 2017, Judge Wilson granted summary judgment and

dismissed plaintiff's complaint. In granting the motion, the

judge held that, as a matter of law, plaintiff failed to establish

that the Borough had actual or constructive notice of the alleged

dangerous condition, or that it acted in a palpably unreasonable

manner. In his comprehensive written opinion, Judge Wilson

explained:

This [c]ourt finds that the Borough did

not have actual or constructive notice of the

raised pavers prior to [p]laintiff's accident

as required under [N.J.S.A. 59:4-2]. As to

actual notice, this [c]ourt finds that . . .

[p]laintiff has failed to proffer any evidence

that the Borough knew of any alleged dangerous

condition at the subject location prior to the

date of this accident. There is no evidence

that any specific complaints were made to the

Borough about the condition of the sidewalk.

The Borough was put on notice only after the

accident had occurred, when [p]laintiff's wife

called the DPW the day after the accident.

The burden is on . . . [p]laintiff to provide

evidence of actual notice of a dangerous

condition on the part of the Borough but he

has not met this burden. See Norris [v.

Borough of Leonia], 160 N.J. [427, 448

(1999)].

In accordance with N.J.S.A. 59:4-3(b), in

order for the [Borough] to be held liable for

[p]laintiff's alleged injuries on the theory

that it had constructive notice of a dangerous

5 A-5642-16T3

condition, [plaintiff] must proffer evidence

that a dangerous 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; Carroll v. N.J. Transit, 366

N.J. Super. 380 (App. Div. 2004).

This [c]ourt also finds that [p]laintiff

has failed to present any evidence that would

reach the level of constructive notice of the

alleged dangerous condition. It is well-

settled that a public entity is only liable

for a dangerous condition of his property when

an alleged dangerous condition is of an

obvious nature. N.J.S.A. 59:4-3. No proof

is offered that shows the raised pavers

existed in this condition for a significant

period of time, except [p]laintiff's expert

stating that the condition of the pavers is a

result of improper maintenance over the last

five years based on pictures [p]laintiff's

wife took of the raised pavers. However, the

mere existence of an alleged dangerous

condition is not constructive notice of it.

Fine v. City of Margate, 48 F. Supp. [3d] 772,

781 (D.N.J. 2014) (quoting Polzo v. Cty. of

Essex, 196 N.J. 569, 581 (2008)). With only

the pictures taken by [p]laintiff's wife, the

raised pavers' existence on Parker Avenue does

not rise to the level of "obvious" for the

purposes of N.J.S.A. 59:4-3. As such, the

Borough had no actual or constructive notice

of this alleged dangerous condition.

. . . .

Had the condition of the pavers on Parker

Avenue been obvious, someone would have

reported to the Borough. In that scenario,

it would have been palpably unreasonable for

the Borough not to send out DPW employees to

repair the pavers. However, [plaintiff]

elicit[s] no facts to show that the condition

6 A-5642-16T3

was clearly obvious and glaring before the

accident such that the Borough's failure to

notice it and repair it was palpably

unreasonable. Plaintiff and his wife never

reported this condition to the Borough that

evening before [p]laintiff's accident. There

is also no record of any other pedestrian

informing the Borough of the raised pavers.

Given the lack of complaints, the Borough's

inaction prior to [p]laintiff's accident was

not palpably unreasonable under the

circumstances.

Having dismissed the complaint, the court denied the motion

to bar Gianforcaro's report and testimony as moot. On July 21,

2017, the court denied plaintiff's motion for reconsideration.

This appeal followed.

On appeal, plaintiff argues that summary judgment was

improper because there were genuine issues of material fact as to

the existence of a dangerous condition, the Borough's constructive

notice thereof, and whether the Borough's failure to take action

was palpably unreasonable.3 We disagree and affirm substantially

for the reasons expressed in Judge Wilson's thoughtful written

opinion. We add the following comments.

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

same standard as the trial court. Townsend v. Pierre, 221 N.J.

3

Plaintiff does not address the denial of the motion for

reconsideration. An issue not briefed is deemed waived. See

Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); see also, Pressler

& Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2018).

7 A-5642-16T3

36, 59 (2015). Summary judgment should be granted only if the

record demonstrates 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). We consider "whether

the competent evidential materials presented, when viewed in the

light most favorable to the non-moving party, are sufficient to

permit a rational factfinder to resolve the alleged disputed issue

in favor of the non-moving party." Davis v. Brickman Landscaping,

Ltd., 219 N.J. 395, 406 (2014) (quoting Brill, 142 N.J. at 540).

If no genuine issue of material fact exists, the inquiry then

turns to "whether the trial court correctly interpreted the law."

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430

N.J. Super. 325, 333 (App. Div. 2013) (citation omitted).

Defendant is a public entity, requiring assessment of the

claimed liability against the immunity provisions of the TCA,

which serves as "the statutory mechanism through which our

Legislature effected a waiver of sovereign immunity." D.D. v.

Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 133 (2013). We

recognize "the 'guiding principle' of the [TCA] is 'that immunity

from tort liability is the general rule and liability is the

exception.'" Id. at 134 (quoting Coyne v. N.J. Dep't of Transp.,

182 N.J. 481, 488 (2005) (citation omitted)). Accordingly, "a

public entity is 'immune from tort liability unless there is a

8 A-5642-16T3

specific statutory provision' that makes it answerable for a

negligent act or omission." Polzo, 209 N.J. at 65 (quoting Kahrar

v. Borough of Wallington, 171 N.J. 3, 10 (2002)).

Pursuant to the TCA,

A public entity is liable for injury caused

by a condition of its property if the

plaintiff establishes 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

. . . .

b. a public entity had actual or constructive

notice of the dangerous condition under

section 59:4-3 a sufficient time prior to the

injury to have taken measures to protect

against the dangerous condition.

Nothing in this section shall be construed to

impose liability upon a public entity 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.

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

The TCA defines "public property" as property that is "owned

or controlled by the public entity." N.J.S.A. 59:4-1(c). Further,

a "'[d]angerous condition' means 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

9 A-5642-16T3

that it will be used." Roman v. City of Plainfield, 388 N.J.

Super. 527, 534 (App. Div. 2006) (quoting N.J.S.A. 59:4-1(a)).

[T]o be considered 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 to

determine whether the condition creates a

substantial risk of injury and, therefore,

qualifies under the statute as dangerous.

[Atalese v. Long Beach Twp., 365 N.J. Super.

1, 5 (App. Div. 2003).]

"Thus, 'when a public entity creates or suffers a dangerous

condition on public property that leads ineluctably and

foreseeably to injury, it is not insulated from liability under

N.J.S.A. 59:4-2 . . . .'" Seals v. Cty. of Morris, 210 N.J. 157,

179 (2012) (quoting Smith v. Fireworks by Girone, Inc., 180 N.J.

199, 217 (2004)).

"Public-entity liability may also be based on the entity's

actual or constructive notice of a dangerous condition if its

failure to protect against the danger is palpably unreasonable."

Polzo, 209 N.J. at 67. "The term 'palpably unreasonable' -- as

used in N.J.S.A. 59:4-2 -- 'implies behavior that is patently

unacceptable under any given circumstance.'" Id. at 75-76 (quoting

Muhammad v. N.J. Transit, 176 N.J. 185, 195-96 (2003)). "When a

public entity acts in a palpably unreasonable manner, it should

10 A-5642-16T3

be 'obvious that no prudent person would approve of its course of

action or inaction.'" Id. at 76 (quoting Muhammad, 176 N.J. at

195-96).

The threshold determination as to "[w]hether property is in

a 'dangerous condition' is generally a question for the finder of

fact." Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119,

123 (2001). Courts analyzing whether conditions of walkways or

road surfaces are "dangerous" within the meaning of the TCA

typically review measurements of the gap, crack or other surface

defect said to have caused the plaintiff's injury. See, e.g.,

Charney v. City of Wildwood, 732 F. Supp. 2d 448, 456 (D.N.J.

2010) (finding a one and one-half inch deep, one and one-quarter

inch wide triangular hole in boardwalk was not a dangerous

condition).

In the present case, the trial court did not comment on

whether the raised pavers constituted a "dangerous condition"

within the intent of the TCA. But assuming, without deciding,

that a deviation in the height among the sidewalk pavers

constituted a harmful tripping hazard to allow a jury to conclude

the differential created a substantial risk of injury to a

pedestrian like plaintiff, there is no proof the Borough had actual

or constructive knowledge of it.

11 A-5642-16T3

Here, no complaints were ever voiced about the condition of

the property, nor prior incidents reported. Moreover, museum

staff never notified the Borough of any hazard or defect in the

area. Nor did any DPW workers notify their superior in accordance

with established protocol when such defects are observed.

"The mere '[e]xistence of an alleged dangerous condition is

not constructive notice of it.'" Polzo, 196 N.J. at 581

(alteration in original) (quoting Sims v. City of Newark, 244 N.J.

Super. 32, 44 (Law Div. 1990)). Although plaintiff relies on

Gianforcaro's opinion that the raised pavers must have existed for

a substantial period of time based on photographs taken by

plaintiff's wife after the accident, we are not persuaded this

establishes constructive notice of the condition. See Maslo v.

City of Jersey City, 346 N.J. Super. 346, 350 (App. Div. 2002)

(finding the City lacked actual and constructive notice of a one-

inch height difference between two portions of a sidewalk,

notwithstanding the plaintiff's expert's opinion that the

condition must have existed for at least a year).

Finally, even if a jury could reasonably find all other

elements, plaintiff has failed to prove the Borough's inaction was

"palpably unreasonable." See, e.g., Muhammad, 176 N.J. at 199-

200; Carroll, 366 N.J. Super. at 390-91. As we have noted, for a

public entity such as the Borough to have acted, or failed to act,

12 A-5642-16T3

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." Holloway v. State, 125 N.J. 386, 403-04

(1991) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)).

In other words, the term implies behavior that is "patently

unacceptable under any given circumstance." Lindedahl, 100 N.J.

at 493.

Here, we find no proof of "palpable unreasonableness" to

warrant jury consideration. The unrefuted evidence is that the

Borough's DPW employees cut grass, collect garbage, and remove

snow and leaves on public property in the Borough, including Parker

Avenue near the Fort Lee Museum where plaintiff fell, and DPW

workers were instructed to alert a supervisor of any hazards.

Further, as previously noted, the record is devoid of any evidence

of a history of incidents or complaints similar to plaintiff's,

or a demonstrable pattern of conduct or practice to suggest the

need for a more frequent inspection or maintenance schedule. As

such, plaintiff's claims of palpable unreasonableness presented

no jury question. See Garrison v. Twp. of Middletown, 154 N.J.

282, 311 (1998) (Stein, J., concurring); Maslo, 346 N.J. Super.

at 350 (recognizing that the issue could be decided as a matter

of law in appropriate cases).

13 A-5642-16T3

In summary, plaintiff cannot establish the Borough had actual

or constructive notice of the condition of which he complains. We

further conclude there is an equally fatal lack of evidence that

the Borough's inaction with respect to the pavers was "palpably

unreasonable." Accordingly, the summary judgment dismissal of

plaintiff's complaint was properly ordered.

Affirmed.

14 A-5642-16T3