MARY LOU RAPP VS. VILLAGE OF RIDGEFIELD PARK(L-5188-14, 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NOT FOR PUBLICATION WITHOUT THE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-2525-15T1

MARY LOU RAPP AND
WILLIAM L. RAPP,

Plaintiffs-Appellants,

v.

VILLAGE OF RIDGEFIELD
PARK, SHADE TREE COMMISSION
OF THE VILLAGE OF RIDGEFIELD
PARK, ERDWHIN ESCARRET AND
YAMILA ESCARRET,

Defendants-Respondents.
___________________________________________

Argued June 6, 2017 – Decided July 13, 2017

Before Judges Messano and Grall.

On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-5188-14.

Thomas J. Giblin argued the cause for
appellants (Giblin & Lynch, attorneys; Mr.
Giblin and Eileen Lackey, on the briefs).

Christopher C. Botta argued the cause for
respondents (Botta & Associates, L.L.C.,
attorneys; Natalia R. Angeli, of counsel and
on the brief; Renee F. McCaskey, on the
brief).

PER CURIAM
 Plaintiffs Mary Lou Rapp and William L. Rapp appeal the Law

Division's January 22, 2016 order that granted summary judgment

to defendants, Village of Ridgefield Park (the Village) and the

Shade Tree Commission of the Village of Ridgefield Park (the STC),

and dismissed plaintiffs' complaint.1 The judge concluded

plaintiff failed to present a prima facie case of liability under

the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, in two

respects. He determined plaintiff did not demonstrate defendants

were on actual or constructive notice of a dangerous condition

that proximately caused plaintiff's injuries. N.J.S.A. 59:4-3.

Secondly, the judge concluded plaintiff failed to demonstrate she

suffered the permanent loss of a bodily function that was

substantial. N.J.S.A. 59:9-2(d); Brooks v. Odom, 150 N.J. 395,

406 (1997). The judge also granted the STC summary judgment,

concluding it was immune from liability pursuant to N.J.S.A. 40:64-

14.

I.

The motion record revealed that plaintiff was walking her dog

near her home when she tripped and fell on a raised portion of the

1
Plaintiffs are husband and wife, and William L. Rapp's claims
are wholly-derivative of those brought by his wife. Therefore,
the singular, "plaintiff," used throughout the balance of the
opinion refers to Mary Lou Rapp.

2 A-2525-15T1
sidewalk in front of the residence of defendants Erdwhin and Yamila

Escarret.2 At their depositions, the Escarrets collectively

testified that in 2007, they complained to the Village about a

tree in front of their home, which roots were causing the upheaval

of the sidewalk. The tree was removed, and the Escarrets neither

made any further complaints nor received any complaints from others

regarding the sidewalk. Mrs. Escarret indicated on a photograph

where that tree was, and there is a dispute as to whether plaintiff

fell in that same location on the sidewalk. However, Mrs. Escarret

also stated that the sidewalk in front of her house was always

uneven. Approximately one year after plaintiff's accident, Mr.

Escarret repaired the sidewalk in an attempt to make it more level.

The superintendent of the Village's Department of Public

Works (DPW), Alan O'Grady, had served in that post for twenty-

three years and lived across the street from the Escarret home for

thirty-five years. He testified at deposition that the sidewalks

on the street were in "bad condition," "uneven and . . . [had]

become dislodged" because of trees. O'Grady had complained to the

STC about an uplifted sidewalk in front of his own home, and the

STC had a private contractor repair the sidewalk.

2
The judge granted the Escarret defendants summary judgment.
Plaintiff has not appealed from that order.

3 A-2525-15T1
 In 2007, O'Grady personally inspected the front of the

Escarret home and recommended removal of a tree because it had

"lifted up" the sidewalk. O'Grady said either DPW, or a private

company, repaired the sidewalk by lifting the sidewalk and

replacing it after removing the tree’s roots. He also stated that

DPW removed two other trees from a property on the same street

approximately three months before plaintiff fell.

According to O'Grady, the STC fielded complaints from

homeowners about uplifted sidewalks on their properties caused by

trees or tree roots. The STC would evaluate the situation and

hire a private contractor to repair the sidewalk and thereafter

reimburse the homeowner for the costs. When asked for his personal

"assessment of whether or not" the sidewalks on that particular

street were dangerous, O'Grady responded, "I'm sure . . . some of

the sidewalks are dangerous, but . . . it's my opinion, it's the

homeowner that's responsible . . . ."

The Village created the STC by ordinance in 1979. The

ordinance forbid any person from "lay[ing] any sidewalk" that

interfered with or injured a tree without the STC's consent. One

of the commissioners testified at deposition that the tree removed

from the Escarret home was not replaced because the strip of land

between the curb and sidewalk in which it was planted was too

narrow. The Village also enacted a property maintenance ordinance

4 A-2525-15T1
that required all property owners to keep sidewalks "in a proper

state of repair" or replace them if necessary.

As a result of her fall, plaintiff suffered a non-displaced

fracture of her elbow that did not require surgery. She also

suffered a displaced fracture of her patella and underwent surgery

the day after the incident. The procedure was by "open reduction"

and "internal fixation," requiring the installation of hardware,

some of which remains in plaintiff's knee.

Plaintiff's complaints required further non-surgical

interventions, including injections and manipulations under

anesthesia. More than one year after her fall, plaintiff underwent

arthroscopic surgery. Although her surgeon reported plaintiff had

achieved full range of motion, he noted her risk for "posttraumatic

arthritis," and stated she "had permanent alterations in her knee

mechanics" as a result of the fall. Plaintiff's medical expert

for purposes of this litigation opined that her knee will not heal

to normal function, she will continue to experience arthritic

changes as she resumes normal activities and she will need future

medical treatment.

Plaintiff, who worked as a medical records clerk, was out of

work for seven months. She also worked part-time in a department

store but never returned to that position because she was unable

to stand for long periods. Plaintiff testified regarding continued

5 A-2525-15T1
daily pain in her knee, an inability to bend or kneel and some

restrictions on her activities of daily living.

II.

"[W]e review the trial court's grant of summary judgment de

novo under the same standard as the trial court." Cypress Point

Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 414 (2016)

(citing Mem'l Props., L.L.C. v. Zurich Am. Ins. Co., 210 N.J. 512,

524 (2012)). We first determine whether the moving party

demonstrated there were no genuine disputes as to material facts.

Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224,

230 (App. Div.), certif. denied, 189 N.J. 104 (2006).

[A] determination whether there exists a
"genuine issue" of material fact that
precludes summary judgment requires the motion
judge to 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.

[Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995).]

We then decide "whether the motion judge's application of the law

was correct." Atl. Mut., supra, 387 N.J. Super. at 231. In this

regard, "We review the law de novo and owe no deference to the

trial court . . . if [it has] wrongly interpreted a statute."

Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

6 A-2525-15T1
 Generally speaking, "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.

Cty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough

of Wallington, 171 N.J. 3, 10 (2002)). A public entity may be

liable if "a negligent or wrongful act or omission" of its employee

"create[s] [a] dangerous condition" or, if it had "actual or

constructive notice of the dangerous condition . . . a sufficient

time prior to the injury to have taken measures to protect against

the dangerous condition." N.J.S.A. 59:4-2(a) and (b). As the

Court has repeatedly stated,

[I]n order to impose liability on a public
entity pursuant to [N.J.S.A. 59:4-2], a
plaintiff must establish the existence of a
"dangerous condition," that the condition
proximately caused the injury, that it
"created a reasonably foreseeable risk of the
kind of injury which was incurred," that
either the dangerous condition was caused by
a negligent employee or the entity knew about
the condition, and that the entity's conduct
was "palpably unreasonable."

[Vincitore v. N.J. Sports & Exposition Auth.,
169 N.J. 119, 125 (2001) (quoting N.J.S.A.
59:4-2); accord Polzo v. Cty. of Essex, 196
N.J. 569, 579 (2008) ("Polzo I").]

"Th[e]se requirements are accretive; if one or more of the elements

is not satisfied, a plaintiff's claim against a public entity

7 A-2525-15T1
alleging that such entity is liable due to the condition of public

property must fail." Polzo I, supra, 196 N.J. at 585.

The TCA treats public sidewalks like other public property.

Norris v. Borough of Leonia, 160 N.J. 427, 446 (1999). "Generally,

a sidewalk is classified public or private based on who owns or

controls the walkway, not based on who uses it." Qian v. Toll

Bros. Inc., 223 N.J. 124, 138 (2015).

Plaintiff asserts that defendants were not entitled to

summary judgment on any essential element of her cause of action.

Given that we apply the same standard as the trial court when

reviewing a summary judgment record, we address the issues the

motion judge did not reach. Defendants do not contest that

plaintiff fell on a public sidewalk, or that they exerted control

over it. Rather, defendants contend plaintiff failed to adduce

sufficient proof that the sidewalk was a "dangerous condition,"

of which they had actual or constructive notice, and their conduct

was "palpably unreasonable." We disagree.

"The [TCA] defines a '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.'" Garrison v. Twp. of

Middletown, 154 N.J. 282, 286-87 (1998) (quoting N.J.S.A. 59:4-

1(a)). "A dangerous condition under [the TCA] refers to the

8 A-2525-15T1
'physical condition of the property itself and not to activities

on the property.'" Wymbs v. Twp. of Wayne, 163 N.J. 523, 532

(2000) (quoting Levin v. Cty. of Salem, 133 N.J. 35, 44 (1993)).

Here, the motion judge did not decide whether the upraised

sidewalk slab was a "dangerous condition" for purposes of summary

judgment, and, instead, granted defendants’ motion based upon lack

of notice. In opposing defendant's summary judgment motion,

plaintiff was entitled to all favorable evidence and inferences

in the motion record. R. 4:46-2. It is undisputed that plaintiff

was walking her dog when she fell, i.e., she was using the sidewalk

in a reasonably foreseeable manner. Plaintiff's testimony, along

with that of the homeowners and O'Grady, was sufficient to

demonstrate the sidewalk was significantly uneven. Her expert

engineer opined that the uneven slab was a tripping hazard.

Defendants refer to photographs demonstrating the differential

between slabs was minimal. However, the photos were taken after

plaintiff's fall and after Mr. Escarret's attempted repair.

Mr. Escarret testified that he attempted to correct the

unevenness of the sidewalk approximately one year after the

accident. While we do not determine whether this evidence is

admissible at trial, plaintiff was entitled to its consideration

for purposes of opposing summary judgment. See Harris v. Peridot

Chem. (N.J.), Inc., 313 N.J. Super. 257, 293 (App. Div. 1998)

9 A-2525-15T1
("[E]vidence of subsequent corrective measures has long been

permitted in New Jersey to prove 'the condition existing at the

time of the accident.'" (quoting Lavin v. Fauci, 170 N.J. Super.

403, 407 (App. Div. 1979))). In short, plaintiff raised a genuine

factual dispute about the dangerous condition of the sidewalk.

N.J.S.A. 59:4-3 provides:

a. A public entity shall be deemed to have
actual notice of a dangerous condition . . .
if it had actual knowledge of the existence
of the condition and knew or should have known
of its dangerous character.

b. A public entity shall be deemed to have
constructive notice of a dangerous condition
. . . only 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.

However, "the mere '[e]xistence of an alleged dangerous condition

is not constructive notice of it.'" Polzo I, supra, 196 N.J. at

581 (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law

Div. 1990)). It follows that absent actual or constructive notice,

the public entity cannot have acted in a palpably unreasonable

manner. Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-

51 (App. Div. 2002).

Palpably unreasonable conduct "means 'behavior that is

patently unacceptable under any circumstance' and . . . it must

10 A-2525-15T1
be 'manifest and obvious that no prudent person would approve of

[the public entity's] course of action or inaction.'" Pandya v.

State, Dep't. of Transp., 375 N.J. Super. 353, 372 (App. Div.

2005) (alteration in original) (quoting Holloway v. State, 125

N.J. 386, 403-04 (1991)). In most circumstances, "[p]alpable

unreasonableness is a question of fact." Vincitore, supra, 169

N.J. at 130.

Here, defendants had actual notice of the condition of the

sidewalks along the street where plaintiff fell, removed a tree

that upheaved the sidewalk at or near the spot of her fall, and

attempted to repair the sidewalk after the tree was removed by

resetting the slabs, although the record is unclear whether the

DPW or a private contractor made the repairs. In addition, the

Village's superintendent of public works had actual knowledge of

the poor condition of the sidewalks, and the STC was aware that

trees planted along that street had outgrown the narrow strip of

land between sidewalk and curb. This evidence was sufficient to

defeat summary judgment on the issue of knowledge.

Lastly, as noted, whether the public entity’s conduct was

palpably unreasonable is generally a factual issue for the jury

to decide, however "the question of palpable unreasonableness may

be decided by the court as a matter of law in appropriate cases."

11 A-2525-15T1
Maslo, supra, 346 N.J. Super. at 350 (citing Garrison, supra, 154

N.J. at 311). The motion judge did not address this issue.

The record reveals the STC employed a process to identify and

remediate problem trees in the Village. However, in this case,

the issue was not a problem tree, but, rather the condition of the

public sidewalk after a tree had been removed. One of the factors

to consider in determining whether a jury could find the public

entity's conduct palpably unreasonable is whether there was actual

notice of the dangerous condition. See, e.g., Posey ex rel. Posey

v. Bordentown Sewerage Auth., 171 N.J. 172, 191 (2002) (holding

"a jury could conclude that it was palpably unreasonable for the

Township and or the County not to warn or otherwise protect against

the dangerously deep pond of which they had actual notice"). In

this case, a jury could conclude defendants had actual notice of

the dangerous condition of the sidewalk, based upon their activity

at the site in 2007, continued complaints about sidewalk upheaval

at other addresses on the same street and O'Grady's particularized

knowledge of the conditions of the sidewalks along the street.

Whether defendant's conduct was palpably unreasonable presented a

jury question.

As noted, the motion judge also concluded defendant failed

to meet the threshold requirements of N.J.S.A. 59:9-2(d). That

provision of the TCA provides:

12 A-2525-15T1
 No damages shall be awarded against a public
entity . . . for pain and suffering resulting
from any injury; provided, however, that this
limitation on the recovery of damages for pain
and suffering shall not apply in cases of
permanent loss of a bodily function, permanent
disfigurement or dismemberment where the
medical treatment expenses are in excess of
$3,6000.00.3

[Ibid.]

We disagree with the judge's conclusion.

Plaintiff argues her circumstances are similar to those

presented in Gilhooley v. County of Union, 164 N.J. 533 (2000).

There, the plaintiff suffered a fractured patella that required

repair by surgical intervention via open reduction and internal

fixation. Id. at 536-37. She was left with a scar, and, although

she "returned to work in her full capacity," the plaintiff

continued to experience stiffness and pain in her knee. Id. at

537.

In reversing our affirmance of the trial court's grant of

summary judgment, the Court said:

We are satisfied that the Legislature intended
to include within the notion of aggravated
cases those involving permanent injury
resulting in a permanent loss of normal bodily
function even if modern medicine can supply
replacement parts to mimic the natural
function. As is the case with dismemberment
and disfigurement, when pins, wires,
mechanisms and devices are required to make

3
Plaintiff's medical expenses in this case exceeded $248,000.

13 A-2525-15T1
 the plaintiff normal, the statutory standard
is met. The fact that a physician has jury-
rigged the knee to function with pins and
wires in no way inhibits the characterization
of that injury as the permanent loss of a
bodily function.

[Id. at 542-43.]

Plaintiff's situation is no different. Viewing the evidence in

the most favorable light to plaintiff, the grant of summary

judgment on this ground was improper.

Plaintiff, however, fails to assert any argument regarding

the grant of summary judgment to the STC. An issue not briefed

is deemed waived on appeal. N.J. Dep't of Envtl. Prot. v. Alloway

Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div.), certif. denied,

222 N.J. 17 (2015).

We affirm the grant of summary judgment to the STC. We

reverse the grant of summary judgment to the Village.

14 A-2525-15T1