ELVIRA LEVITINA VS. NEW JERSEY TRANSIT CORP. (L-3781-18, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-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