SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2994-00T3
ELEANOR MASLO,
Plaintiff-Appellant,
v.
CITY OF JERSEY CITY, CITY
OF JERSEY CITY DEPARTMENT
OF PARKS AND FORESTRY, JOHN P.
KIRCHNER, et als.,
Defendants-Respondents.
__________________________________
Submitted November 13, 2001 _ Decided
January 7, 2002
Before Judges Pressler, Landau and Levy.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-9449-98.
Coughlin & Gargano, attorneys for appellant
(Raymond T. Coughlin, on the brief).
Barry, McTiernan & Moore, attorneys for
respondent (Richard W. Wedinger, of counsel;
Daniel W. Sexton, on the brief).
The opinion of the court was delivered by
LANDAU, J.A.D.
Plaintiff, Eleanor Maslo, filed a Law Division complaint in
December 1998, alleging that she suffered injuries in December,
1996, as a result of a fall on a Jersey City sidewalk that abuts a
private residence. Joined as defendants were Joseph Kirchner (the
residential property owner), the City of Jersey City and its
Department of Parks and Forestry. The latter defendants are
hereafter jointly referred to as the "City." The claim against
Kirchner was dismissed by a summary judgment order entered on July
6, 2000, and is not here in issue.
Maslo appeals from an order of January 5, 2001, that granted
summary judgment to the City while denying her cross-motions for
adjournment of the trial date and for an order compelling further
depositions and an award of fees. She argues that the sidewalk in
question must be deemed "public property" under Norris v. Borough
of Leonia,
160 N.J. 427 (1999), and that summary judgment should
have been denied because the City had both actual and constructive
notice of its "dangerous condition." Maslo urges, too, that the
court erred in denying her cross-motions.
While giving Norris its broadest possible reading for purposes
of the motion, the judge concluded that Maslo failed to present a
sufficient showing of actual or constructive notice, or of public
employee creation of the condition, required under N.J.S.A. 59:4-2-
3, to defeat a summary judgment motion under the standards
enunciated in Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520
(1995).
Maslo asserts that a factual issue as to constructive or
actual notice was created because her expert opined that an
observable difference in the height of two sections of the
sidewalk, contended to be the cause of her trip and fall while
running for a bus, would have been noticeable for a year or more.
She points out that city streets and sidewalks are inspected by the
City's Neighborhood Improvement Department. The record before us
demonstrates that no agency of the City, including Neighborhood
Improvement had notice of the problem. Indeed, even Maslo, a
resident of the neighborhood, said she was unaware of the condition
of the sidewalk.
We note that the judge declined to comment about the
qualification contained in N.J.S.A. 59:4-2 providing that,
"[n]othing 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." While we agree with the judge's determination
respecting lack of notice, we also believe that the record was
insufficient, even when viewed in the light most favorable to the
plaintiff, to permit a rational fact-finder to resolve the issue of
palpable unreasonableness in her favor. See Brill, supra, 142 N.J.
at 540. The burden of proving that a public entity's action or
inaction was palpably unreasonable rests with the plaintiff.
The Supreme Court has pointed out that "palpably unreasonable"
implies behavior that is patently unacceptable under any
circumstances, and that it must be manifest and obvious that no
prudent person would approve of the public entity's course of
action or inaction. Holloway v. State,
125 N.J. 386, 403-04
(1991); Kolitch v. Lindedahl,
100 N.J. 485, 493 (1985). Most
recently, the Supreme Court reasserted this stringent view of the
phrase "palpably unreasonable" in Wymbs v. Township. of Wayne,
163 N.J. 523, 532 (2000). The term "palpably unreasonable" connotes
"'behavior that is patently unacceptable under any given
circumstance.'" Ibid. (quoting Kolitch, supra, 100 N.J. at 493).
The record in the present case, including the materials
presented on behalf of Maslo, shows that Chapter 296 of the Jersey
City Code in effect at the time of the accident requires that
owners maintain their premises, including sidewalks, free from
hazardous objects or conditions so as to afford safe passage and
use. Additionally, the City had established a Department of
Neighborhood Improvement that monitors compliance and, through the
Department of Housing, enforces compliance.
While Maslo's expert measured the difference in elevation
between two portions of the sidewalk at slightly over an inch, and
concluded that the condition must have been in existence for at
least a year, this does not equate with actual or constructive
notice. It has been observed that, in applying the test such as
that required for consideration of a summary judgment motion in a
Tort Claims Act case, a judge should consider the declared
legislative policy which shaped the application and interpretation
of the Act and the Commission's Comment to N.J.S.A. 59:4-2 that
"'recognize[d] the difficulties inherent in a public entity's
responsibility for maintaining its vast amounts of public
property.'" Polyard v. Terry,
160 N.J. Super. 497, 506 (App. Div.
1978), aff'd o.b.
79 N.J. 547 (1979).
Here, under its Code, the City has undertaken to place
responsibility for maintenance and repair of sidewalks upon
property owners, including residential property owners. Notably,
too, if the sidewalk in question must be deemed "public property"
under Norris, it is not because of the City's ownership, but
because of its control of the public easement. Norris, supra, 160
N.J. at 443.
As observed by Justice Stein in his concurring opinion in
Garrison v. Township of Middletown,
154 N.J. 282 (1998), the
question of palpable unreasonableness may be decided by the court
as a matter of law in appropriate cases. Id. at 311 (citing Wooley
v. Bd. of Chosen Freeholders,
218 N.J. Super. 56, 62 (App. Div.
1987). See also, Black v. Borough of Atl. Highlands,
263 N.J.
Super. 445, 452 (App. Div. 1993)("palpably unreasonable"
determination finding, "like any other fact question before a jury,
is subject to the court's assessment whether it can reasonably be
made under the evidence presented"). We note that in Garrison, the
township actually owned the property in which a one-inch to one-
and-one-half-inch declivity was the subject of its alleged
negligence. In their concurrence, Justices Stein and O'Hern
concluded that a township's failure to repair such declivity absent
prior complaints or reports, would be insufficient to permit
reasonable jurors to conclude that the "[t]ownship's inaction ...
was patently unacceptable in a way so manifest and obvious that no
prudent person would approve of its inaction." Garrison, supra,
154 N.J. 282 at 311.
Given the policy of the Tort Claims Act, the absence of
notice, the City's adoption of a code requiring maintenance and
repair of sidewalks by their property owners, and the vast amount
of Jersey City sidewalks which appear to be subject to the rules
governing public property under Norris, we hold that a rational
fact-finder could not resolve the question of palpable
unreasonableness in favor of Maslo on this record.
Finally, we have reviewed carefully the record with a view to
Maslo's argument challenging the court's refusal to grant time for
further discovery. We are entirely satisfied that the court's
ruling represented a reasonable exercise of discretion in the
circumstances.
For these reasons and for the reasons set forth by Judge
Curran in her oral opinion of January 5, 2001, the order granting
summary judgment to the City is affirmed.