SHIRLEY BUEHLER VS. TOWNSHIP OF MONTCLAIR(L-0231-14, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2885-15T1

SHIRLEY BUEHLER,

Plaintiff-Appellant,

v.

TOWNSHIP OF MONTCLAIR,

Defendant-Respondent,

and

LAURA B. LEVINE, a/k/a LAURA
BAER and MICHAEL LEVINE,

Defendants.

____________________________________________________

Argued May 16, 2017 – Decided June 7, 2017

Before Judges Fisher and Moynihan.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-231-14.

Robert A. Smith argued the cause for appellant
(Smith & Doran, P.C., attorneys; Mr. Smith,
on the brief).

Alan J. Baratz argued the cause for respondent
(The Weiner Law Group LLP, attorneys; Mr.
Baratz, of counsel; Mr. Baratz and Andrew J.
Kyreakakis, on the brief).
PER CURIAM

Plaintiff commenced this action for damages resulting from

her fall, on April 24, 2013, while "power walking" on a sidewalk

in front a residence located on Mendl Terrace in the Township of

Montclair. Plaintiff claimed she tripped on a concrete sidewalk

slab raised approximately two to two-and-one-half inches higher

than an adjoining slab. The action sought relief against both the

owners of the residence adjacent to the sidewalk in question and

against Montclair. Defendant-residents obtained summary judgment,

as did Montclair.

It is only the disposition of the action against Montclair

that is the subject of this appeal. In that regard, plaintiff

argues:

I. THERE EXISTS A GENUINE ISSUE OF MATERIAL
FACT AS TO WHETHER OR NOT DEFENDANT HAD NOTICE
OF THE DANGEROUS CONDITION OF THE SIDEWALK
WHERE PLAINTIFF SUFFERED HER ACCIDENT AND
DEFENDANT IS JUDICIALLY ESTOPPED FROM DENYING
IT.

II. THERE EXISTS A GENUINE ISSUE OF FACT AS
TO WHETHER DEFENDANT TOWNSHIP OF MONTCLAIR WAS
PALPABLY UNREASONABLE IN FAILING TO REMEDIATE
THE DANAGEROUS CONDITION FOR A SEVEN-MONTH
PERIOD.

Because we agree with plaintiff's contention that the judge's

disposition of the motion was based on a ground not raised by

2 A-2885-15T1
Montclair in its summary judgment motion, we vacate the order

under review and remand for further proceedings.

The viability of the action against Montclair is governed by

the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, which obligates a

claimant to establish property was in a dangerous condition that

proximately caused a reasonably foreseeable risk of injury, that

the public entity had actual or constructive knowledge of the

dangerous condition and sufficient time to take protective

measures, and the public entity's inaction was palpably

unreasonable. See, e.g., Garrison v. Twp. of Middletown, 154 N.J.

282, 286-87 (1998); Carroll v. N.J. Transit, 366 N.J. Super. 380,

386-87 (App. Div. 2004).

What makes this case different from most sidewalk cases are

the facts that not only did plaintiff reside on the same street –

as plaintiff said at her deposition, she lived "two houses down"1

– but also that she had, approximately seven months earlier,

obtained a permit from Montclair, whose representatives visited

the site for that purpose, to repair the sidewalk in front of her

own home. Montclair did not move for summary judgment by claiming

it lacked notice of the condition; instead, Montclair limited its

1
The record does not disclose the actual distance between
plaintiff's residence and the location of the fall.

3 A-2885-15T1
contentions to whether the sidewalk constituted a dangerous

condition and whether its inaction was palpably unreasonable.

In its brief in support of the summary judgment motion,

Montclair asserted that although it "maintains that it did not

have actual or constructive knowledge," the "application seeking

summary judgment . . . does not address issues of notice."

Montclair only sought summary judgment, in the words contained in

its brief, solely "on issues of 'dangerous condition' and 'palpably

unreasonable.'" Montclair's approach did not change. At oral

argument in the trial court, defense counsel asserted that

Montclair's motion "is only related to the two elements,"

"dangerous condition and palpably unreasonable." To be sure, the

motion judge posed to plaintiff's counsel about whether Montclair

had actual or constructive notice, to which plaintiff's counsel

responded that Montclair had not raised that question, perhaps

because of evidence that Montclair representatives had inspected

the sidewalk in front of plaintiff's home months earlier. On the

return date, the trial judge acted consistently with the way the

motion was framed by Montclair; she rendered an oral decision that

recognized Montclair "did not raise the notice issue," that assumed

the alleged sidewalk defect "could be accepted by a jury as

creating substantial risk of injury and hence a dangerous

condition," and that "focus[ed] . . . on whether defendant acted

4 A-2885-15T1
in a palpably unreasonable manner." Following a thorough

discussion of the case law, the judge concluded in her oral

decision on February 19, 2016, that:

Even when the facts are viewed most favorably
to the plaintiff that the sidewalk was a
dangerous condition and [upon] assum[ing] that
defendant [had] actual knowledge or [was on]
constructive notice of the dangerous condition
of the sidewalk, which [it] does only for
purposes of this motion, I find that a
rational fact finder could not resolve the
question of palpable unreasonableness in favor
of the plaintiff . . . on this record.

That same day, the judge entered an order granting Montclair

summary judgment and dismissing the complaint with prejudice.

Plaintiff filed a notice of appeal on March 16, 2016. The day

after the appeal was filed, the motion judge issued a supplemental

opinion, presumably pursuant to Rule 2:5-1(b), which allows a

trial judge to amplify an earlier decision after the filing of an

appeal.2 In this supplemental opinion, the judge repeated her

earlier observations about the dangerousness of the alleged

condition, but added a determination that there was insufficient

evidence to suggest Montclair had actual or constructive knowledge

of that condition. The judge then, in light of her observations

about notice, concluded that there was insufficient evidence from

2
Eleven days later, the judge revised that supplemental opinion
but only because extraneous pages had been attached to what was
previously sent to the parties.

5 A-2885-15T1
which a trier of fact could find Montclair acted in a palpably

unreasonable way in failing to address the alleged dangerous

condition.

We agree that the manner in which these issues were decided

deprived plaintiff of a full and fair opportunity to address the

actual or constructive knowledge issue in responding to the summary

judgment motion. Consequently, the February 19, 2016 order will

be vacated and the matter remanded. In such a situation, a judge

– whose vision of a case may differ from counsel's – should ensure

that in reaching an unraised issue, all parties are given a fair

opportunity to respond. The particular manner in which the notice

issue was reached and resolved here deprived plaintiff of that

opportunity.

To be sure, the judge's written opinion makes clear that

summary judgment was granted not only on notice grounds but also

on palpably-unreasonable grounds. This might suggest we could

decide the appeal by addressing only the latter. The overall tenor

of the judge's written opinion, however, strongly suggests that

the reasonableness of Montclair's failure to address the alleged

dangerous condition was impacted, at least in part, or informed

by the judge's belief that Montclair had neither actual nor

constructive knowledge.

6 A-2885-15T1
 The order under review is vacated and the matter remanded for

further proceedings in conformity with this opinion.3 We do not

retain jurisdiction.

3
In other words, we do not foreclose the judge's further
consideration of Montclair's application for summary judgment. We
simply conclude that, before considering whether Montclair had
actual or constructive notice, the judge first provide the parties
with the opportunity to factually and legally address that
question.

7 A-2885-15T1