NOT FOR PUBLICATION WITHOUT THE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-0757-16T1
BRIAN SHORT,
Plaintiff-Appellant,
v.
CITY OF TRENTON,
Defendant-Respondent.
_____________________________
Submitted May 15, 2018 – Decided June 20, 2018
Before Judges Yannotti and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
2568-14.
Martin J. Hillman, attorney for appellant.
Walter D. Denson, Law Director, City of
Trenton Legal Department, attorneys for
respondent (John Morelli, Assistant City
Attorney, on the brief).
PER CURIAM
Plaintiff Brian Short appeals from an order entered by the
Law Division on June 27, 2016, which granted summary judgment in
favor of defendant, City of Trenton (the City), and an order
entered by the court on September 15, 2016, denying his motion for
reconsideration. We affirm.
I.
On November 5, 2014, plaintiff filed a complaint in the trial
court alleging that on November 25, 2013, at around 4:00 p.m., he
was on East State Street in the City. He alleged he was injured
because the City's property was "negligently owned, controlled,
supervised, operated, managed, inspected, repaired and
maintained." Plaintiff claimed he sustained severe external and
internal injuries, suffered great pain, could not attend to his
business, and incurred medical expenses. He sought damages and the
costs of suit. The City filed an answer denying liability.
After discovery, the City filed a motion for summary judgment,
pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1
to 12-3, arguing that plaintiff failed to present sufficient
evidence to establish a cause of action against the City based on
an alleged dangerous condition of public property. The City also
argued that plaintiff's injuries did not meet the threshold under
the TCA for the award of pain and suffering damages.
Plaintiff opposed the motion and filed a certification.
Plaintiff stated that on November 25, 2013, he was walking to
board a bus on East State Street and noticed the bus he wanted to
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board had stopped in the middle of the block due to heavy traffic.
According to plaintiff, the driver of the bus was letting
passengers on, so he crossed the street to board the bus. Plaintiff
stated that water was coming up into the street from under the
ground and ice had formed on the street. Plaintiff slipped and
fell on the ice. He stated that marks had been spray-painted on
the roadway, which indicated that "repairs or some type[] of work
[was] going to be done on that area."
In his deposition, plaintiff testified that at the relevant
time, there was traffic on East State Street and buses were backed
up. He crossed the street, "slipped on black ice," twisted his
ankle, and "broke it on the sidewalk." Plaintiff acknowledged he
did not cross the street in the crosswalk. Plaintiff said water
"was coming up from the area where the black ice was." There was
no sewer hole at that location, and he guessed "a water pipe had
burst."
Plaintiff also stated that someone had "marked the road where
they're supposed to dig and fix the problem, I guess." He admitted,
however, that he did not know what those marks were. Plaintiff
testified that he did not see anyone put the marks on the street,
and he did not know how long the marks had been there.
Plaintiff further testified that he did not know if the City
had been notified of water bubbling up in the street. He admitted
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he did not give notice to the City of that condition. Plaintiff
said he had never before seen water bubbling up in the area where
he fell. Plaintiff said he took a photo of the scene before he was
taken by ambulance for medical treatment. The record includes a
photo which shows some ice in the street near the curb.
Plaintiff also submitted a report by Randy S. Tartacoff, M.D.
Dr. Tartacoff stated that on November 25, 2013, plaintiff slipped
and fell on an "icy street." Plaintiff immediately complained of
severe right ankle pain and was subsequently evaluated at a medical
center. It was determined that plaintiff had sustained a
trimalleolar fracture of the right ankle.
On November 26, 2013, plaintiff had surgery, specifically,
open reduction and internal fixation of the ankle fracture.
According to Dr. Tartacoff, plaintiff followed up with an
orthopedic clinic on three dates in December 2013, January 2014,
and February 2014. Plaintiff also was placed in a physical therapy
rehabilitative program, but could not attend the program because
he lacked medical insurance.
Dr. Tartacoff opined that plaintiff had suffered a
"consequential limitation of use of his right ankle joint," and
the injury was permanent. Based on plaintiff's subjective
complaints and the doctor's objective findings, Dr. Tartacoff
concluded plaintiff has a permanent limitation of motion and
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function to the right ankle joint, and he will never return to his
"pre-morbid state." The doctor wrote that he expected plaintiff
"will have a much lower threshold for repeated injury and a more
rapid progression of traumatic degenerative disease."
On June 27, 2016, the motion judge placed an oral decision
on the record. The judge found that there was no genuine issue of
material fact, and the City was entitled to judgment as a matter
of law.
The judge rejected the City's contention that plaintiff had
not been using the property with due care because he crossed in
the middle of the street, rather than at the crosswalk. The judge
therefore found that plaintiff had presented sufficient evidence
to show that the condition in the City's street was a "dangerous
condition" under the TCA. Nevertheless, the judge determined that
plaintiff failed to show the City had either actual or constructive
notice of the dangerous condition.
The judge also found that plaintiff had not presented
sufficient evidence to show that the City's action with regard to
the alleged dangerous condition was palpably unreasonable. In
addition, plaintiff failed to show that he met the threshold for
the award of pain and suffering damages under the TCA. The judge
memorialized her decision in an order filed June 27, 2016.
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Plaintiff filed a motion for reconsideration. He argued that
the question of whether the City's actions regarding the alleged
dangerous condition were palpably unreasonable is an issue that
should be decided by a jury. Plaintiff further argued that he
presented sufficient evidence to satisfy the threshold for pain
and suffering damages under the TCA.
On September 15, 2016, the judge placed an oral decision on
the record, concluding that there was no basis for reconsideration
of the June 27, 2016 order granting the City's motion for summary
judgment. The judge entered an order dated September 15, 2016,
denying the motion for reconsideration. This appeal followed.
II.
On appeal, plaintiff argues that the trial court erred by
granting summary judgment to the City. He contends that he
presented sufficient evidence to raise a genuine issue of material
fact as to whether the City had notice of the alleged dangerous
condition in the street where he fell, and whether the City's
failure to address that condition before his fall was palpably
unreasonable.
Summary judgment must be granted when there is no genuine
issue of material fact and the moving party is entitled to judgment
as a matter of law. R. 4:46-2(c). "An issue of fact is genuine
only if, considering the burden of persuasion at trial, the
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evidence submitted by the parties on the motion, together with all
legitimate inferences therefrom favoring the non-moving party,
would require submission of the issue to the trier of fact." Ibid.
The non-moving party may not defeat a motion for summary
judgment "merely by pointing to any fact in dispute." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995) (emphasis
in original). "If there exists a single, unavoidable resolution
of the alleged disputed issue of fact, that issue should be
considered insufficient to constitute a 'genuine' issue of
material fact for purposes of Rule 4:46-2." Id. at 540 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
"On appeal, we accord no special deference to a trial judge's
assessment of the documentary record, and instead review the
summary judgment ruling de novo as a question of law." Davidovich
v. Israel Ice Skating Fed'n, 446 N.J. Super. 127, 159 (App. Div.
2016) (citations omitted). In determining whether the trial court
erred by granting summary judgment, we apply the same standard
that the trial court must apply in ruling on the motion. Conley
v. Guerrero, 228 N.J. 339, 346 (2017) (citing Templo Fuente De
Vida Corp. v. Nat'l Union Fire Ins. Co. of Pitt., 224 N.J. 189,
199 (2016)).
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To establish liability against a public entity under the TCA
for an injury allegedly caused by a dangerous condition of public
property, the plaintiff must show:
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 either:
a. a negligent or wrongful act or omission of
an employee of the public entity within the
scope of his employment created the dangerous
condition; or
b. a public entity had actual or constructive
notice of the dangerous condition under
[N.J.S.A.] 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.]
These elements are "accretive," which means that "if one or more
of the elements is not satisfied, a plaintiff's claim against a
public entity alleging that such entity is liable due to the
condition of public property must fail." Polzo v. Cty. of Essex,
196 N.J. 569, 585 (2008).
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Plaintiff argues he presented sufficient evidence to show the
icy condition of the street constituted a dangerous condition
under N.J.S.A. 59:4-2 and the City had actual notice of that
condition. Plaintiff maintains the photo of the street where he
fell shows markings painted in the roadway at the spot where "the
problem was occurring." In his certification, plaintiff asserts
that sometime after the accident, he noticed the City's employees
digging up the street in the spot where the water and ice allegedly
caused him to fall.
The City argues that plaintiff has not shown that the icy
condition where plaintiff fell was a dangerous condition under the
TCA. The term "dangerous condition" is defined in N.J.S.A. 59:4-
1(a) 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." The City
contends plaintiff was not using the property with due care because
he failed to cross the street at the crosswalk. The City notes
that plaintiff crossed in the middle of the street in an effort
to board a bus.
We need not address this issue because plaintiff failed to
present sufficient evidence to show the City had actual or
constructive notice of the alleged dangerous condition. Here,
plaintiff relies upon the markings in the street as evidence that
9 A-0757-16T1
the City had actual notice of the condition. He did not, however,
identify the person or entity who painted the marks in the street,
or the reason for the marks. Plaintiff asserts that sometime after
the accident, he observed City workers digging in the spot where
he fell, but there is no evidence that the marks or the excavation
had anything to do with the water flowing in the street or the
resulting icy condition.
Moreover, plaintiff failed to show that the City had
constructive notice of the alleged dangerous condition. The mere
"[e]xistence of an alleged dangerous condition is not constructive
notice of [that condition]." Polzo, 196 N.J. at 581 (quoting Sims
v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)).
To establish constructive notice of an alleged dangerous
condition, the plaintiff must show 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." Polzo v.
Cty. of Essex, 209 N.J. 51, 67 (2012) (quoting N.J.S.A. 59:4-3).
Here, there is no evidence that the alleged dangerous
condition existed before plaintiff fell. Indeed, at his
deposition, plaintiff testified that before the accident, he had
never seen water bubbling up in the street at the location. Thus,
plaintiff failed to show that the alleged dangerous condition
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existed for such a period of time and was of such obvious nature
that the City, through the exercise of due care, should have
discovered its dangerous character. N.J.S.A. 59:4-3(b).
In addition, plaintiff failed to present sufficient evidence
to raise a genuine issue of material fact as to whether the City's
failure to take action regarding the alleged dangerous condition
was palpably unreasonable. "Palpably unreasonable" means "behavior
that is patently unacceptable under any given circumstance."
Muhammad v. N.J. Transit, 176 N.J. 185, 195 (2003) (quoting Kolitch
v. Lindedahl, 100 N.J. 485, 493 (1985)). When a public entity acts
in a palpably unreasonable manner, it should be "obvious that no
prudent person would approve of its course of action or inaction."
Id. at 196 (quoting Kolitch, 100 N.J. at 493).
In this case, plaintiff presented no evidence showing that
the City had received complaints regarding the alleged dangerous
condition in the street. There also was no evidence of how long
the condition existed before plaintiff fell. Thus, plaintiff
failed to present sufficient evidence to raise a genuine issue of
material fact as to whether the City's failure to address the
alleged dangerous condition was palpably unreasonable.
III.
Plaintiff further argues that he presented sufficient
evidence to raise a genuine issue of material fact as to whether
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he met the threshold for the award of pain and suffering damages
under N.J.S.A. 59:9-2(d). The statute provides that in an action
under the TCA against a public entity or public employee, a
plaintiff may not be awarded damages for pain and suffering
resulting from any injury unless the plaintiff presents evidence
of a "permanent loss of a bodily function, permanent disfigurement
or dismemberment where the medical treatment expenses are in excess
of $3,600.00." Ibid.
The City concedes that in this matter, plaintiff's medical
expenses exceeded $3600. The City argues, however, that plaintiff
failed to present sufficient evidence to show he suffered a
permanent dismemberment or permanent loss of a bodily function.
The City notes that in his deposition testimony, plaintiff
indicated that he still engages in his normal activities and only
has minor inconvenience.
Plaintiff argues that he sustained a permanent loss of a
bodily function. He fractured his right ankle, which required open
reduction and internal fixation of the ankle. He states that the
hardware remains in his ankle and causes him significant pain.
Plaintiff claims he cannot stand or walk for prolonged periods of
time. He also claims he has pain when he walks and tries to sleep
at night. He alleges that due to his injury, his daily activities
are limited.
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In view of our determination that summary judgment was
properly granted to the City because plaintiff failed to present
sufficient evidence to support a claim under N.J.S.A. 59:4-2 for
the alleged dangerous condition of public property, we need not
address the question of whether plaintiff satisfied the threshold
for pain and suffering damages under N.J.S.A. 59:9-2(d).
Affirmed.
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