ROBINSON et al v. CITY OF OCEAN CITY et al
Filing
27
OPINION. Signed by Chief Judge Jerome B. Simandle on 11/14/2012. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MARIE ROBINSON, et al.,
Plaintiff,
Civil Action
No. 10-2129 (JBS/AMD)
v.
CITY OF OCEAN CITY, et al.,
MEMORANDUM OPINION
Defendants.
SIMANDLE, District Judge:
This matter comes before the Court on Defendant City of
Ocean City’s (“Ocean City”) Motion for Summary Judgment [Docket
Item 20], which will be granted because the Court finds as
follows:
1.
On May 24, 2008, Plaintiff Marie Robinson attended her
niece’s graduation party on 32nd Street in Ocean City. (Pl.
Statement of Facts (“SOF”) ¶ 1.) She left the party at 10:00 p.m.
and, while stepping from the sidewalk into the street, stepped
into a pothole. (Pl. ¶¶ 2-3.) The pothole was located against the
curb. (Pl. SOF ¶ 4.) As a result of her fall, Plaintiff sustained
a meniscal tear of her left knee, bruises, contusions, and
swelling. (Pl. SOF ¶¶ 5-6.) Five days later, on May 29, 2008, a
man named “John” complained about a pothole in front of 303 32nd
Street that had harmed two family members. (Pl. SOF ¶ 21.) There
was a second complaint on May 30, 2008 about a “very bad pothole”
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at 32nd Street. (Pl. SOF ¶ 22.) Fran Inacio, Ocean City’s
Supervisor of Streets for the Public Works Department, visited
the area on May 29th, after receiving the first complaint. (Pl.
SOF ¶ 8, 23.) He inspected the potholes, coned them off, and
assigned two employees to make repairs, which were done on June
2, 2008. (Pl. SOF ¶¶ 23, 25.)
2.
In deposition testimony, Inacio and Michael Rossbach,
Ocean City’s Director of Public works, described Ocean City’s
methods for maintaining its streets. Ocean City has 93 miles of
streets and 33 miles of alleys. (Inacio Dep. 61:16-17.) At least
twice a year but usually four or five times per year, the Public
Works Department inspects the streets. (Inacio Dep. 24:6-21;
Rossbach Dep. 26:16-17.) The inspection is a “windshield survey,”
in which a public works employee drives the streets looking for
defects, such as potholes, and repairs them as needed. (Rossbach
Dep. 22:9-21.) Inacio acknowledged that, if there are cars parked
on the street, the employees conducting the windshield survey may
be unable to see potholes blocked by the parked cars. (Inacio
Dep. 27:12-23.) He stated that it would not “be feasible to get
out and look behind each car. We would never get anything done.”
(Inacio Dep. 28:1-3.) The Public Works Department also responds
to service requests from residents or other members of the public
within one to two weeks. (Rossbach Dep. 28:21-29:19.) In
addition, Ocean City’s engineering department surveys the roads
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approximately every five years to compile road ratings that
inform capital plans on which roads most need to be redone.
(Rossbach Dep. 19:4-9.)
3.
Marie Robinson and her husband, Ronald Robinson, filed
a Complaint [Docket Item 1] in this Court against the City of
Ocean City and other unnamed John Doe and ABC Corporation
Defendants responsible for maintaining Ocean City’s roads. Marie
Robinson made negligence claims against all Defendants, and
Ronald Robinson made loss of consortium claims against all
Defendants. The Court has jurisdiction pursuant to 28 U.S.C. §
1332(a) because Plaintiffs are Pennsylvania residents, Defendants
are New Jersey citizens, and Plaintiffs have alleged over $75,000
in damages. New Jersey law provides the rule of decision.
4.
Defendant Ocean City filed a Motion for Summary
Judgment [Docket Item 20] alleging that Plaintiff failed to
satisfy the requirements of the New Jersey Tort Claims Act. Ocean
City argued, essentially, that it had no actual or constructive
notice of the alleged dangerous condition and that Plaintiffs did
not show that its road maintenance program, i.e. its efforts to
protect against the dangerous condition, were palpably
unreasonable.
5.
Plaintiffs filed Opposition [Docket Item 23], arguing
that Ocean City had constructive notice because the nature of the
pothole indicated that it had developed over a period of time
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that was sufficient for Ocean City to have located and repaired
it. Plaintiffs also argued that they had created a genuine issue
of material fact as to whether Ocean City’s actions and/or
inactions were palpably unreasonable. Plaintiffs’ expert witness,
Russell J. Kolmus, III, P.E., examined the pothole site and,
based on cracking in the road, observed that, “The incident
potholes were foreseeable to a qualified roadway maintenance
manager.” (Kolmus Expert Report at 12.) Kolmus asserted that
Ocean City’s inspection methods were inadequate because an
inspector driving in a car cannot observe potholes that are
underneath parked cars. He concluded, “The inspection methods to
detect potholes employed by Ocean City were ineffective and
obviously/palpably unreasonable, in that the entire roadway could
not be viewed at the time of inspection in areas where parking
was allowed.” (Kolmus Expert Report at 17.) Kolmus also opined
that the “lack of effective inspection methods resulted in the
incident fall.” (Id.) He suggested that Ocean City should have
the streets inspected on foot and should prohibit parking on
inspection days to ensure unfettered views. (Id. at 12-13.)
6.
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact
is “material” only if it might affect the outcome of the suit.
Id. The district court must “view the facts and draw reasonable
inferences in the light most favorable to the party opposing the
summary judgment motion.” Scott v. Harris, 550 U.S. 372, 378
(2007).
7.
The New Jersey Tort Claims Act, N.J.S.A. 59:4–1 to
14–4, governs claims against governmental entities arising from
dangerous conditions on public property. Any application of the
Tort Claims Act “must start from its guiding principle, that is,
that immunity from tort liability is the general rule and
liability is the exception.” Polzo v. County of Essex, 196 N.J.
569, 578 (2008) (“Polzo I”) (internal citations omitted). Under
the Act, a plaintiff must show that the property was in a
dangerous condition, that the injury was proximately caused by
the dangerous condition, and that the dangerous condition created
a foreseeable risk of injury. N.J. Stat. Ann. § 59:4-2. In
addition, a plaintiff must show either that “a negligent or
wrongful act or omission” of a public employee created the
dangerous condition or that the “public entity had actual or
constructive notice of the dangerous condition . . . a sufficient
time prior to the injury to have taken measures to protect
against the dangerous condition.” N.J. Stat. Ann. § 59:4-2(a)(b). The Tort Claims Act constructively imputes notice of the
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dangerous condition to a public entity “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. .
. .” N.J. Stat. Ann. § 59:4-3(b).
8.
Finally, the Act provides that, even if a dangerous
condition existed and the public entity was on notice, the public
entity nevertheless will be immune from liability “if the action
the entity took to protect against the condition or the failure
to take such action was not palpably unreasonable.” N.J. Stat.
Ann. § 59:4-2. “Palpably unreasonable” means more than ordinary
negligence and imposes a steep burden on a plaintiff. Polzo I at
580. The term “implies behavior that is patently unacceptable
under any given circumstances and it must be manifest and obvious
that no prudent person would approve of its course of action or
inaction.” Coyne v. State, Dept. of Transp., 182 N.J. 481, 493
(2005). The Third Circuit has explained that in order to be
“palpably unreasonable” under New Jersey law, actions must be the
result of “capricious, arbitrary, whimsical or outrageous
decisions of public servants.” Waldorf v. Shuta, 896 F.2d 723,
738 (3d Cir. 1990) (internal citation omitted). The question of
palpable unreasonableness is generally decided by the fact-finder
as it constitutes a question of fact; “[n]evertheless, like any
question of fact, the determination of palpable unreasonableness
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is subject to a preliminary assessment by the court as to whether
it can reasonably be made by a fact-finder considering the
evidence.” Charney v. City of Wildwood, 732 F. Supp. 2d 448, 457
(D.N.J. 2010), aff'd, 435 F. App'x 72 (3d Cir. 2011).
9.
For purposes of this motion, Plaintiffs have proffered
admissible evidence that the pothole was a dangerous condition,
that it was the proximate cause of Marie Robinson’s injuries, and
that her injuries were foreseeable. Plaintiffs allege both that
Ocean City’s negligent or wrongful road maintenance caused the
dangerous condition and that Ocean City had constructive notice.
Plaintiffs have not alleged that Ocean City had actual notice of
the pothole. The Court will therefore analyze whether a
reasonable jury could conclude that Ocean City’s road maintenance
program caused the dangerous condition, that Ocean City had
constructive notice, and that Ocean City’s actions or inactions
were palpably unreasonable. The Court holds, as a matter of law,
that the answer to each question is no.
10.
Ocean City did not create the dangerous condition.
Plaintiffs argue that Ocean City “caused the pothole to form by
failing to utilize proper preventive maintenance practices. . .
.” (P. Opp’n at 13.) But the New Jersey Supreme Court has held,
in assessing a case involving a defect in a road, that “[e]ven if
we were to assume that the County had an inadequate inspection
program, natural conditions—not a flawed inspection
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program—‘created’ the depression on the shoulder of roadway. . .
.” Polzo v. County of Essex, 209 N.J. 51, 66-67 (2012) (“Polzo
II”). Plaintiffs’ expert witness, Mr. Kolmus, acknowledged that
cracks are inevitable and that potholes are formed when water
filters through cracks into the layers below the asphalt surface.
(Kolmus Expert Report at 11.) He explained that freezing and
thawing of the water causes the road material to loosen and,
eventually, potholes form. (Id.) Natural conditions, not
allegedly flawed inspection programs, create potholes. The Polzo
II court further explained that “[a] dangerous condition of
property may be ‘created’ if, for example, a public entity's snow
plow creates a pothole or the entity's paving of a roadway is
negligently performed.” Id. Plaintiff has never alleged that
Ocean City’s original paving of the road was negligent or that
Ocean City’s trucks created the hole. Even if, arguendo, Ocean
City’s program were inadequate, Ocean City, as a matter of law,
did not create the dangerous condition that harmed Plaintiff
Marie Robinson.
11.
Ocean City did not have constructive notice of the
dangerous condition. The New Jersey Supreme Court has held that
“the mere existence of an alleged dangerous condition is not
constructive notice of it.” Polzo I at 581. The Polzo case
involved a woman who lost control of her bicycle while riding
across a depression in the roadway, crashed, and died. The
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plaintiff in Polzo, the decedent’s husband, argued that the road
condition should have been noticed because it existed for a
period of months, if not years, and because there had been many
complaints about potholes in that area. Polzo I at 576-77. The
Polzo plaintiff’s only evidence to support the argument that the
depression qualified for constructive notice was an expert
report, which the New Jersey Supreme Court held to be
insufficient.
12.
In the present case, Plaintiff’s only evidence that the
pothole met constructive notice requirements is also an expert
report that does not establish that Ocean City had constructive
notice. Plaintiff’s expert, Mr. Kolmus, states, “The incident
potholes were foreseeable to a qualified roadway maintenance
manager.” (Kolmus Expert Report at 12.) The report also says that
untreated pavement cracking leads to potholes, that 32nd Street
was “at or very near the end of the pavement’s surface life,” and
that Kolmus observed cracks in the roadway that had not been
filled or sealed. (Kolmus Expert Report at 11.)
These general
statements do not establish constructive notice. The New Jersey
Tort Claims Act establishes constructive notice when “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. . . .” N.J. Stat.
Ann. § 59:4-3(b). The pothole at 32nd street may have been a
9
foreseeable condition because of cracking and the general road
conditions, and the inevitable cycle of freezing and thawing, but
that does not mean that the pothole itself “had existed for such
a period of time and was such an obvious nature” that Ocean City
had constructive notice.
13.
Plaintiffs cite Connelly v. AGL Resources, 2012 N.J.
Super. Unpub. LEXIS 253 (N.J. App. Div. Feb. 7, 2012), to support
their constructive notice argument. In that case, plaintiff
Connelly stepped into a hole covered by leaves that was in the
middle of a cross-walk. The hole may have been created by the
city when it paved over an open gas main box and, if not, the
city arguably had constructive notice because a police officer
was assigned to that intersection and city departments regularly
observed that area. The condition ought to have been discovered
because Connelly alleged that it was ancient. The New Jersey
Appellate Court reversed the trial court’s grant of summary
judgment for the defendants on the grounds that the city had
either created the dangerous condition or had actual or
constructive notice of it. Connelly is easily distinguishable
because, since Polzo II rejected the argument that allegedly
inadequate inspection programs cause dangerous conditions, there
is no plausible allegation in this case that Ocean City created
the dangerous condition. Secondly, there was no police officer
stationed at the location where Plaintiff fell. And, third, in
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Connelly, the hole was allegedly ancient, an essential fact that
Plaintiff has not argued here.
14.
Connelly is therefore inapposite.
Even if Ocean City did have constructive notice, its
actions (or nonactions) in maintaining its roadways were not
palpably unreasonable. The New Jersey Supreme Court has held that
public entities need not “employ the equivalent of roving pothole
patrols to fulfill their duty of care in maintaining roadways
free of dangerous defects.” Polzo II at 56. The Polzo plaintiff
presented an expert witness who criticized the municipality’s
inspection program. The Polzo II court emphasized that the expert
witness “did not offer any evidence to indicate that this
suggested program is an objective standard of practice or has
been adopted by other public entities.” Polzo II at 663 (emphasis
in original).
15.
In this case, Plaintiff’s expert witness recommended
improvements to Ocean City’s program, but he did not cite any
recognized standard of care that mandates his recommended
inspection procedures, nor did he cite any recognized standard of
care indicating that Ocean City’s methods are inadequate. The
Polzo II court emphasized that “[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.” Polzo II at
69. Absent a showing that Ocean City’s program violates
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recognized standards of care, Ocean City’s program is not, as a
matter of law, unreasonable, let alone palpably unreasonable.1
Plaintiff simply has not shown that Ocean City’s inspection
program is the result of “capricious, arbitrary, whimsical or
outrageous decisions of public servants,” as required for
liability under the NJTCA, see
Waldorf v. Shuta, 896 F.2d 723,
738 (3d Cir. 1990), or that “no prudent person would approve of
its course of action or inaction,” see Coyne v. State, Dept. of
Transp., 182 N.J. 481, 493 (2005).
16.
The New Jersey Supreme Court held, in Polzo II, that
“[t]his Court does not have the authority or expertise to dictate
to public entities the ideal form of road inspection program,
particularly given the limited resources available to them. . .
.” Polzo II at 69. The Polzo II court explained its rationale by
noting, in part, that “a public entity's discretionary decisions
to act or not to act in the face of competing demands should
generally be free from the second guessing of a coordinate branch
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Ocean City filed a Reply [Docket Item 26], challenging,
inter alia, Kolmus’ criticisms of Ocean City’s road inspection
methods. The Reply included an expert report and selected notes
from the New Jersey Society of Municipal Engineers’ Pavement
Management Course. The notes describe the “Surface Condition
Survey Methods” class module, which covers three survey methods,
i.e. windshield, walking, and automated, and the benefits and
drawbacks of each method. Plaintiff’s expert’s response [Docket
Item 23-3] to this report was attached to Plaintiff’s Opposition.
If windshield surveys are a method taught in the New Jersey
Society of Municipal Engineers’ Pavement Management Course, that
method is not palpably unreasonable.
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of Government.” Polzo II at 76 (internal citation omitted). If
the New Jersey Supreme Court lacks the authority to dictate road
inspection programs to municipal entities in New Jersey, then
this federal Court certainly lacks that authority.
17.
Plaintiffs cite Roe v. New Jersey Transit Rail
Operations, 317 N.J. Super. 72 (N.J. App. Div. 1998), to argue
that Ocean City’s actions were palpably unreasonable because
Ocean City could have improved its inspection program with minor
expenses and inconvenience. In Roe, Defendant NJ Transit bolted
open a fence gate that led underneath the I-280 overpass. The
plaintiff, a 12-year-old girl, cut through the gate on her way to
a nearby park and was assaulted by a man who had been sitting
underneath the overpass. The man brutally and repeatedly raped
her. In discovery, police officers testified that there was
general knowledge that the open gate was used, that the area
under I-280 was dangerous because of seclusion and inadequate
lighting, and that many crimes occurred at that location. In
addition, NJ Transit’s interrogatory answers established that the
fence had originally been erected to prevent children from taking
that shortcut under the overpass to the park. The Roe court held
that, “NJ Transit made the conscious decision to weld the gate
permanently open . . . [and] [t]here was ample evidence for a
jury to conclude that NJ Transit was aware, or should have been
aware of the fact that the gate, which was permanently bolted
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open, led passersby into what could be considered the most
dangerous park area under I-280. . . .” Roe at 78. The Roe court
argued that relocating the gate or locking it and providing keys
to authorized personnel would have caused minor expense and
inconvenience and, therefore, a jury could conclude that NJ
Transit’s actions were palpably unreasonable. Roe is wholly
inapposite to the case at bar. In this case, there is no
allegation that Ocean City’s affirmative actions led to the
dangerous condition, nor that Ocean City had any knowledge of the
dangerous condition, nor that Plaintiff’s proposed inspection
program would be as cheap and easy to implement as locking a
gate.
18.
Plaintiffs cite other cases in support of their
arguments regarding notice and palpable unreasonableness, but the
Court also finds them unpersuasive because they are unpublished
and they predate Polzo II, which was published on January 18,
2012 (and also, in some instances, they predate Polzo I, which
was published on December 3, 2008). Regardless of publication
date, the fact patterns in the cases support the Court’s grant of
summary judgment. See, e.g., Dupree v. City of Newark, 2011 N.J.
Super. Unpub. LEXIS 794 (N.J. App. Div. Apr. 1, 2011) (summary
judgment affirmed because no evidence concerning how long
dangerous condition existed); Schmidt v. City of Bayonne, 2007
N.J. Super. Unpub. LEXIS 417 (N.J. App. Div. May 21, 2007)
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(summary judgment reversed because record contained evidence that
deterioration creating pothole began three years prior to
incident); and Barton v. Burlington County, 2006 N.J. Super.
Unpub. LEXIS 2143 (N.J. App. Div. Oct. 30, 2006) (summary
judgment reversed because dangerous condition existed for at
least four years and was arguably created by faulty bridge
construction). These cases support the Court’s holding that
summary judgment is appropriate because Ocean City did not create
the dangerous condition, Ocean City’s maintenance program was not
palpably unreasonable, and Plaintiff has not adduced evidence
that the pothole “existed for such a period of time and was of
such an obvious nature that [Ocean City]. . . should have
discovered the condition. . . .” See N.J. Stat. Ann. § 59:4-3(b).
19.
Defendant Ocean City’s Motion for Summary Judgment is
granted. Plaintiffs’ claims against Ocean City will be dismissed.
In addition, as Plaintiffs have never identified the John Doe and
ABC Corporation Defendants and no named Defendants remain in the
action, the Court will terminate this action.
20.
The accompanying Order will be entered.
November 14, 2012
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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