NOT FOR PUBLICATION WITHOUT THE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-3089-19
ELVIRA LEVITINA,
Plaintiff-Appellant,
v.
NEW JERSEY TRANSIT
CORP.,
Defendant-Respondent.
________________________
Argued May 25, 2021 – Decided July 14, 2021
Before Judges Gilson and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-3781-18.
Sander Budanitsky argued the cause for appellant.
Christopher M. Brady argued the cause for respondent
(Camassa Law Firm, PC, attorneys; John A. Camassa,
of counsel; Alexandra J. Taylor, on the brief).
PER CURIAM
Plaintiff Elvira Levitina appeals from the trial court's order granting
summary judgment to defendant New Jersey Transit (NJ Transit) and dismissing
with prejudice her single-count complaint alleging she was injured due to NJ
Transit's negligence when, as a business invitee, she fell in February 2017, after
stepping into a pothole located in a parking lot owned by defendant and then
maintained by the Metuchen Parking Authority (the Authority) under the terms
of an agreement with NJ Transit's predecessor (the Agreement).1
We review a trial court's summary-judgment ruling de novo, applying the
same standard as the trial court, Conley v. Guerrero, 228 N.J. 339, 346 (2017);
see also Nelson v. Elizabeth Bd. of Educ., 466 N.J. Super. 325, 336 (App. Div.
2021), and consider whether the evidence, "when viewed in the light most
favorable to the non-moving party," raises genuinely disputed issues of material
fact sufficient to warrant resolution by the trier of fact, or whether the evidence
is "so one-sided one party must prevail as a matter of law," Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (citation omitted). A dispute of
material fact is "genuine only if, considering the burden of persuasion at trial,
the evidence submitted by the parties on the motion, together with all legitimate
1
The parties to the 1957 Agreement were the Pennsylvania Railroad Company
and the Parking Authority of the Borough of Metuchen, N.J.
A-3089-19
2
inferences therefrom favoring the non-moving party, would require submission
of the issue to the trier of fact." R. 4:46-2(c); see also Bhagat v. Bhagat, 217
N.J. 22, 38 (2014). We review a trial court's legal conclusions de novo. Clark
v. Nenna, 465 N.J. Super. 505, 511 (App. Div. 2020).
The New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3,
"indisputably governs causes of action in tort against governmental agencies
within New Jersey," Gomes v. Cnty. of Monmouth, 444 N.J. Super. 479, 487
(App. Div. 2016); see also N.J.S.A. 59:2-1(a); Nieves v. Off. of the Pub. Def.,
241 N.J. 567, 571 (2020). NJ Transit is a public entity. Muhammad v. N.J.
Transit, 176 N.J. 185, 194 (2003). Because public entities are presumptively
immune from tort liability unless a statutory exception expressly provides
otherwise, N.J.S.A. 59:2-1(a); Manna v. State, 129 N.J. 341, 346 (1992), a
negligence action against a public entity is circumscribed by the specific
standards set forth in the TCA, see N.J.S.A. 59:4-2; see also N.J.S.A. 59:2-1(a)
("Except as otherwise provided by [the TCA], a public entity is not liable for an
injury, whether such injury arises out of an act or omission of the public entity
or a public employee or any other person.").
The TCA subjects a public entity to a duty of care different from "that . .
. owed under the negligence standard." Polzo v. Cnty. of Essex, 209 N.J. 51,
A-3089-19
3
75-76 (2012); see also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 460-
61 (2009). The TCA imposes a higher burden of proof on a plaintiff "than is
demanded in ordinary common-law negligence cases." Bligen v. Jersey City
Hous. Auth., 131 N.J. 124, 137 (1993). We are thus unconvinced by plaintiff's
misplaced reliance on cases in which general negligence standards were applied.
Under N.J.S.A. 59:4-2, a public entity is liable if a plaintiff establishes:
(1) public "property was in dangerous condition at the time of the injury"; (2)
"the injury was proximately caused by the dangerous condition"; (3) "the
dangerous condition created a reasonably foreseeable risk of the kind of injury
which was incurred"; and (4) "a negligent or wrongful act or omission of [a
public] employee . . . created the dangerous condition" or "a public entity had
actual or constructive notice of the dangerous condition[.]" Additionally, a
public entity is not liable 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." Ibid.
Plaintiff urges us to reverse the trial court's grant of summary judgment
because genuine issues of material fact exist; specifically, as to whether: a
dangerous condition existed in the parking lot; NJ Transit had notice of the
condition; and NJ Transit's actions or inactions were palpably unreasonable.
A-3089-19
4
The trial court, in its oral decision, did not address all of N.J.S.A. 59:4 -2's
prongs. It found the Authority "was responsible for the maintenance and repairs
of the parking lot as per the [terms of the Agreement], answers to interrogatories
and the testimony of [an Authority manager]." As to the first and fourth prongs,
the trial court determined
conditions such as the one that led to the fall of
[plaintiff] are to be expected given its nature and do not
rise to the level of a dangerous condition within the
meaning of the [TCA]. In the absence of expert
testimony, [plaintiff] cannot establish that the driver
[(sic)] was in a dangerous condition. [NJ Transit] did
not have constructive, nor actual[,] notice[] of the
condition.
We affirm because plaintiff failed to establish NJ Transit had notice of the
pothole and that its failure to remedy the condition was palpably unreasonable.
In so deciding, we accept that the pothole, as shown in photographs
appended to plaintiff's brief, was located in an area traversed by users of the
parking lot. The depression, described as approximately two inches deep and
several inches wide, 2 qualifies under the summary judgment standard as a
2
The exact measurements of the pothole are unclear. At oral argument in the
trial court and now in her appellate brief, plaintiff states the pothole was about
two inches deep and several (four to six) inches across. Photographs of the
pothole and a ruler suggest—albeit without much precision—that these
measurements are correct.
A-3089-19
5
dangerous condition under the TCA: "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." N.J.S.A. 59:4-1(a).
We disagree with the trial court that expert testimony was necessary to
establish that the pothole qualified as a dangerous condition. "Whether property
is in a 'dangerous condition' is generally a question for the finder of fac t. . . .
Thus the standard is whether any member of the general public who foreseeably
may use the property would be exposed to the risk created by the alleged
dangerous condition." Vincitore ex rel. Vincitore v. N. J. Sports & Exposition
Auth., 169 N.J. 119, 123, 125 (2001). Plaintiff was walking between her sister's
car and the train platform when she stepped into the pothole she alleges was
covered with leaves. Her action was an "objectively reasonable use by the public
generally" as "commuters [and] . . . other persons who park[] their cars [and]
walk[] to [an adjacent] train station" are foreseeable users of a train station
parking lot; and, as described by plaintiff, her use was "with due care." Garrison
v. Twp. of Middletown, 154 N.J. 282, 291, 293 (1998). Consequently, the
pothole, "considered together with the anticipated use of the property" presented
"a substantial risk of injury." Atalese v. Long Beach Twp., 365 N.J. Super. 1,
5-6 (App. Div. 2003) (holding that even though the pavement differential that
A-3089-19
6
caused the plaintiff's injury was only three-quarters of an inch, a jury could
reasonably accept the three-quarter-inch differential as creating a substantial
risk of injury because the differential was on an area of the roadway that walkers,
runners, and bicyclists would foreseeably use).
Although plaintiff does not argue NJ Transit created or had actual notice
of the pothole, she contends it had constructive notice because "[a] defect of
such magnitude does not develop overnight."3 Plaintiff contends "[i]t can
reasonably be presumed that representatives and employees of NJ Transit
regularly travel through" the parking lot, highlighting that "the NJ Transit
manager of the station has a dedicated parking space that is merely feet from the
defect." She further asserts regular inspections would have led to NJ Transit's
discovery of the pothole.
Liability will be found if "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
3
The trial court did not address, and NJ Transit did not in its merits brief
challenge, that the pothole proximately caused plaintiff's injury or that the
pothole created a reasonably foreseeable risk of the injury plaintiff suffered. We
consider those issues waived and will not address those TCA prongs. See
Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue
not briefed on appeal is deemed waived.").
A-3089-19
7
injury to have taken measures to protect against the dangerous condition."
N.J.S.A. 59:4-2(b). But the entity will
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.
[N.J.S.A. 59:4-3(b).]
Plaintiff did not establish when the pothole developed. Although an
expert may not have been necessary to establish that the pothole was a dangerous
condition, one might have presented evidence regarding how long the pothole
existed. Plaintiff presented no expert or other evidence on that issue. That the
pothole was covered with leaves on that early February day does not indicate
when the pothole developed; fallen leaves could have accumulated in a brief
time.
Nor did plaintiff establish how often the manager utilized the parking
space, how often the manager had visited during the time the pothole existed or
that the route taken by the manager in the lot would have reasonably led to the
pothole's discovery. Certainly, the pothole was not that apparent. Neither
plaintiff nor her sister, despite frequent use of the parking lot, saw the pothole
prior to the accident. Moreover, plaintiff did not establish that the manager's
A-3089-19
8
duties included inspecting for potholes or other defects, particularly since the
Agreement provided that "[a]ll facilities installed by [the] Authority under [the]
terms of this [A]greement," which included all grading and surfacing of the lot,
"as well as all driveways and surfacing within the areas covered by this
[A]greement are to be maintained and renewed by and at the cost of the
[A]uthority."
The terms of the Agreement essentially gave the Authority full control
over and responsibility for the upkeep of the parking lot. The Agreement, by its
terms, was engendered by the overcrowding and congestion of parking facilities
caused by business and commercial activity which "disadvantage[d]" the public.
The parties deemed it in "the best interests of the public which uses the
Railroad's facilities to create a coin[-]controlled parking operation on [NJ
Transit's property], the said parking operation to be operated and managed by
[the] Authority." Under the Agreement, besides maintaining and renewing the
surfaces, the Authority agreed to: "promptly install, maintain, operate and
manage" the parking facilities; grade, surface, light and make other
improvements at its "sole cost"; reimburse NJ Transit for all taxes paid on the
property or the Authority's "business and receipts"; clean and light the premises;
furnish all labor and supervisory forces of every kind,
and . . . employ, pay from [the] Authority's own funds
A-3089-19
9
and discharge all persons engaged in the performance
of [any and all work to be done by the Authority under
the terms of the Agreement], and all such persons shall
be and remain the sole employees and subject to [the]
Authority's exclusive supervision, direction and
control;
maintain liability coverage; and indemnify NJ Transit for any action brought for
damages resulting from "any accident to any person or persons or proper ty
[occurring] in, on or in proximity to the premises" caused by the negligence of
the Authority or its agents or employees.
Considering the responsibilities imposed upon the Authority under the
Agreement, plaintiff proffered nothing to establish that NJ Transit had any duty
to inspect the parking lot for potholes. There is no evidence that anyone
previously complained to NJ Transit about potholes or any dangerous condition
in the parking lot. That plaintiff did not ascertain the Authority's role in the
parking operation during the discovery period does not impose greater duties on
NJ Transit.
Given our conclusion that NJ Transit did not have constructive notice of
the pothole that caused plaintiff's accident, its failure to repair it cannot be
viewed as palpably unreasonable under the TCA. "The mere '[e]xistence of an
alleged dangerous condition is not constructive notice of it.'" Arroyo v. Durling
Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013) (alteration in original)
A-3089-19
10
(quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)). It
therefore follows that, absent notice, the public entity did not act in a palpably
unreasonable manner. See Maslo v. City of Jersey City, 346 N.J. Super. 346,
350-51 (App. Div. 2002).
Even if we concluded NJ Transit had constructive notice of the pothole,
plaintiff has not presented any facts that show NJ Transit's conduct was palpably
unreasonable.4 Apart from proof of notice, to establish liability against a public
entity under N.J.S.A. 59:4-2, a plaintiff must establish a prima facie case that
the action or inaction of the public entity was "palpably unreasonable." Coyne
v. Dep't of Transp., 182 N.J. 481, 493 (2005); Maslo, 346 N.J. Super. at 349.
The term "palpably unreasonable" implies "behavior that is patently
unacceptable under any given circumstance." Muhammad, 176 N.J. at 195; see
also Ogborne, 197 N.J. at 459 (holding that, to constitute "palpably
unreasonable" conduct, "it must be manifest and obvious that no prudent person
would approve of [the] course of action or inaction" (citations omitted)).
Whether the public entity's behavior was palpably unreasonable is generally a
question of fact for the jury. Vincitore, 169 N.J. at 130. However, a
determination of palpable unreasonableness, "like any other fact question before
4
The trial court did not address this issue.
A-3089-19
11
a jury, is subject to the court's assessment whether it can reasonably be made
under the evidence presented." Maslo, 346 N.J. Super. at 351 (quoting Black v.
Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)).
Accordingly, "the question of palpable unreasonableness may be decided by the
court as a matter of law in appropriate cases." Id. at 350; see also Garrison, 154
N.J. at 311 (Stein, J., concurring).
Palpably unreasonable conduct "implies a more obvious and manifest
breach of duty" than negligence "and imposes a more onerous burden on the
plaintiff." Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979).
Plaintiff has not shown there was any reported complaint of a pothole. This was
not a case where NJ Transit knew commuters could get hurt by the pothole but
chose not to act. Importantly, NJ Transit contracted to have any driveways and
surfacing maintained and renewed by the Authority. It did not retain any control
over the maintenance of the lot. Indeed, the Authority was required to carry
insurance to cover accidents like that alleged by plaintiff. She had recourse
against the Authority but did not pursue it. Under these circumstances, no
rational factfinder could find that it was palpably unreasonable for NJ Transit
not to have inspected the lot for the pothole that caused plaintiff's unfortunate
injury.
A-3089-19
12
Summary judgment was appropriate; affirmed.
A-3089-19
13
ELVIRA LEVITINA VS. NEW JERSEY TRANSIT CORP. (L-3781-18, MIDDLESEX COUNTY AND STATEWIDE)
Combined Opinion