MARY MICHAS VS. NEW JERSEY TRANSIT CORP. (L-1032-14, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-4997-15T1

MARY MICHAS,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT CORP.
and BOROUGH OF BERNARDSVILLE,

Defendants-Respondents.
______________________________

Submitted July 18, 2017 – Decided July 28, 2017

Before Judges Reisner and Suter.

On appeal from the Superior Court of New
Jersey, Law Division, Somerset County, Docket
No. L-1032-14.

Caruso Smith Picini, PC, attorneys for
appellant (Steven J. Kaflowitz, on the
briefs).

DiFrancesco, Bateman, Kunzman, Davis, Lehrer
& Flaum, PC, attorneys for respondents
(Timothy P. Beck, on the brief).

PER CURIAM

Plaintiff Mary Michas appeals from a July 8, 2016 order

granting summary judgment dismissing her personal injury complaint

against defendants New Jersey Transit Corp. (NJT) and the Borough
of Bernardsville. Our review of a summary judgment order is de

novo, employing the same Brill1 standard used by the trial court.

Davis v. Brickman Landscaping, 219 N.J. 395, 405 (2014). Having

reviewed the record with that standard in mind, we affirm.

The following facts were undisputed. In September 2013,

plaintiff fell due to a pothole in the parking lot of the

Bernardsville train station and suffered a broken wrist. The

Borough leased the station from NJT and was contractually obligated

to maintain the lot. The Borough did not receive any report as

to this particular pothole. However, solely for purposes of the

motion, defendants admitted that the pothole was an unreasonably

dangerous condition, of which the Borough had constructive notice.

Defendants produced evidence that the Borough had a regular

maintenance schedule for filling potholes, which included

maintenance at the station lot approximately four times a year.

The schedule was based on the Borough's limited resources,

including five full-time employees to perform all maintenance for

the entire Borough, and the fifty-two miles of roadways and five

parking lots for which they were responsible. Based on that

schedule, the Borough performed regular pothole repair work at the

train station in April, June and October 2013. No potholes were

1
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

2 A-4997-15T1
reported between June and September, but if they had been reported,

the report would have been placed on a list and the work would

have been prioritized according to available resources.

Plaintiff's engineering expert examined the parking lot two

years after the accident, and opined that the pothole should have

been repaired. Contrary to plaintiff's argument on this appeal,

he did not opine that the pothole in which plaintiff fell had

existed for three years. The expert found the lighting in the

lot to be inadequate on the day of his inspection, but had no

knowledge as to the lighting on the date of the accident.

In granting summary judgment, the motion judge concluded that

the Borough's conduct was not palpably unreasonable, within the

meaning of the Tort Claims Act, N.J.S.A. 59:4-2.

Defendant had finite resources. They made
decisions on how to best maintain the roadway
and the lots and that decision involved
repairing the lot in dispute once every four
months.

Defendant's decisions and the priority
assigned to the lot are afforded deference,
as they are not, obviously, improper [such]
that no prudent person would approve of their
action and, therefore, the defendant's motion
for summary judgment is . . . granted.

On this appeal, much of plaintiff's brief is devoted to

whether the Borough was on notice of the pothole and whether it

3 A-4997-15T1
was an unreasonably dangerous condition. But that is not the

issue on which summary judgment was granted.

As the motion judge recognized, the Tort Claims Act insulates

a public entity from liability for a dangerous condition of its

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; see Polzo v. Cnty. of Essex, 209

N.J. 51, 55 (2012). Based on our review of the record, we conclude

that there were no material factual disputes as to that issue, and

"no prudent person" could conclude that the Borough's repair

schedule was palpably unreasonable in light of its limited

resources. Coyne v. DOT, 182 N.J. 481, 494 (2005). In fact,

plaintiff's expert offered no opinion on that issue. See Polzo,

supra, 209 N.J. at 68-69. As in Polzo, "[w]e cannot find that the

absence of a more systematic program violates the Tort Claims Act,

particularly when plaintiff has not provided this Court with any

recognized standard of care that demands otherwise." Id. at 69.2

Plaintiff's appellate arguments are without sufficient merit

to warrant further discussion. R. 2:11-3(e)(1)(E).

2
Plaintiff's brief did not even cite Polzo, much less attempt to
distinguish the case.

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Affirmed.

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