NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0763-16T3
LOUELLA FRISON,
Plaintiff-Appellant,
v.
A-1 LIMOUSINE, INC., ANDRE WILLIAMS, TRENTON-MERCER AIRPORT, MERCER COUNTY, and MERCER COUNTY DEPARTMENT OF TRANSPORTATION,
Defendants-Respondents. _______________________________
Submitted November 1, 2017 – Decided November 21, 2017
Before Judges Fuentes and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1069-15.
Timothy J. Alles (Louis B. Himmelstein & Associates, PC) attorney for appellant.
Sweeney & Sheehan, PC, attorneys for respondents A-1 Limousine and Andre Williams (F. Herbert Owens, III, on the brief).
Arthur R. Sypek, Jr., Mercer County Counsel, attorney for respondents Trenton-Mercer Airport, Mercer County and Mercer County Department of Transportation (Stephanie R. D'Amico, Assistant County Counsel, on the brief).
PER CURIAM
Plaintiff Louella Frison appeals from two orders granting
summary judgment; one in favor of the non-public entity defendants,
A-1 Limousine, Inc. (A-1) and Andre Williams, and the other in
favor of Trenton Mercer Airport, Mercer County, and Mercer County
Department of Transportation and Infrastructure (the Mercer County
defendants). We affirm.
Viewing the evidence most favorably to Frison per Rule 4:46-
2(c); Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520
(1995), we find the following facts.
Around 11 p.m. on July 8, 2013, Frison, in the company of
friends and family, was returning home after a flight from New
Orleans to Trenton Mercer County Airport. They all utilized a
shuttle bus service provided by A-1 to travel to a remote parking
lot used by the airport's customers. The driver of the bus, Andre
Williams, dropped Frison off in an unilluminated area of the
gravel-surfaced lot. While stepping off the bus, Frison lost her
footing and fell to the ground. Frison suffered a tear in the
meniscus of her left knee and fractured a bone in her right foot.
On June 10, 2016, A-1 and Andre Williams filed a motion for
summary judgment prior to the August 11, 2016 discovery end date.
2 A-0763-16T3 On July 8, 2016, the Mercer County defendants filed a motion for
summary judgment. Oral argument on both motions was conducted
before the Law Division. Upon completion, the judge granted both
motions by orders dated September 9, 2016. This appeal followed.
On appeal, Frison raises the following arguments:1
POINT I
THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS, A-1 LIMOUSINE AND ANDRE WILLIAMS BECAUSE THESE DEFENDANTS ACTED UNREASONABLY IN DROPPING PLAINTIFF/APPELLANT OFF IN A DANGEROUSLY DARK PORTION OF THE GRAVEL PARKING LOT.
POINT II
THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS, TRENTON MERCER AIRPORT, MERCER COUNTY, AND MERCER COUNTY DEPARTMENT OF TRANSPORTATION AND INFRASTRUCTURE BECAUSE THESE DEFENDANTS ACTED IN A PALPABLY UNREASONABLE MANNER BY NOT INSTALLING ANY LIGHTS IN THE REMOTE PARKING LOT WHERE PLAINTIFF/APPELLANT FELL AND THEREFORE THE MERCER COUNTY DEFENDANTS ARE NOT IMMUNE. POINT III
THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS, TRENTON MERCER AIRPORT, MERCER COUNTY, AND MERCER COUNTY DEPARTMENT OF TRANSPORTATION AND
1 Frison references in her brief that the motion was filed before the end of the discovery period, yet she has not argued that the motions were premature. In the ordinary course, arguments not raised on appeal are deemed waived. Zaman v. Felton, 219 N.J. 199, 227 (2014).
3 A-0763-16T3 INFRASTRUCTURE BECAUSE THE PLAINTIFF HAS MEDICAL BILLS IN EXCESS OF [$3600] AND HAS SUFFERED A SIGNIFICANT AND PERMANENT LOSS OF BODILY FUNCTION BECAUSE OF THIS ACCIDENT AND THEREFORE THE MERCER COUNTY DEFENDANTS ARE NOT IMMUNE.
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court. Townsend v.
Pierre, 221 N.J. 36, 59 (2015) (citing Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014)). "Summary judgment
must be granted 'if the pleadings, depositions, answers to
interrogatories[,] and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to
a judgment or order as a matter of law.'" Town of Kearny v.
Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
Thus, we consider, as the trial judge did, whether "the
competent evidential materials presented, when viewed in the light
most favorable to the non-moving party, are sufficient to permit
a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Ibid. (quoting Brill, supra, 142
N.J. at 540). If there is no genuine issue of material fact, we
must then "decide whether the trial court correctly interpreted
the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494
(App. Div. 2007), certif. denied, 195 N.J. 419 (2008) (citing
4 A-0763-16T3 Prudential Prop. & Cas. Co. v. Boylan, 307 N.J. Super. 162, 167
(App. Div.), certif. denied, 154 N.J. 608 (1998)). We accord no
deference to the trial judge's conclusions on issues of law and
review issues of law de novo. Nicholas v. Mynster, 213 N.J. 463,
478 (2013).
We first address Frison's claim of error in granting summary
judgment on behalf of the Mercer County defendants. Having
considered the discovery record, we conclude that Frison's claim
that the Mercer County defendants allowed a dangerous condition
to exist on its premises, i.e., a poorly illuminated gravel parking
lot, is without basis in fact and fails as a matter of law.
The claim by Frison is governed by the Tort Claims Act (TCA).
N.J.S.A. 59:1-1 to 12-3. N.J.S.A. 59:4-2 provides that a public
entity is liable if a plaintiff establishes: (1) the public
property was in a 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 condition. Additionally, a public entity is not liable for
a dangerous condition of its property if "the action the entity
5 A-0763-16T3 took to protect against the condition or the failure to take such
action was not palpably unreasonable." N.J.S.A. 59:4-2.
The heightened "palpably unreasonable" standard applies to
dangerous conditions of public property, and is intended to comport
with the principles of liability used by the courts for local
public entities in their capacity as landowners. Margolis &
Novack, Claims Against Public Entities, 1972 Task Force Comment
on N.J.S.A. 59:4-2 (2016). Although the statute has been broadly
applied, it is nevertheless limited to instances where a dangerous
condition of public property itself is at issue. Ibid.; Ogborne
v.
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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-0763-16T3
LOUELLA FRISON,
Plaintiff-Appellant,
v.
A-1 LIMOUSINE, INC., ANDRE WILLIAMS, TRENTON-MERCER AIRPORT, MERCER COUNTY, and MERCER COUNTY DEPARTMENT OF TRANSPORTATION,
Defendants-Respondents. _______________________________
Submitted November 1, 2017 – Decided November 21, 2017
Before Judges Fuentes and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1069-15.
Timothy J. Alles (Louis B. Himmelstein & Associates, PC) attorney for appellant.
Sweeney & Sheehan, PC, attorneys for respondents A-1 Limousine and Andre Williams (F. Herbert Owens, III, on the brief).
Arthur R. Sypek, Jr., Mercer County Counsel, attorney for respondents Trenton-Mercer Airport, Mercer County and Mercer County Department of Transportation (Stephanie R. D'Amico, Assistant County Counsel, on the brief).
PER CURIAM
Plaintiff Louella Frison appeals from two orders granting
summary judgment; one in favor of the non-public entity defendants,
A-1 Limousine, Inc. (A-1) and Andre Williams, and the other in
favor of Trenton Mercer Airport, Mercer County, and Mercer County
Department of Transportation and Infrastructure (the Mercer County
defendants). We affirm.
Viewing the evidence most favorably to Frison per Rule 4:46-
2(c); Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520
(1995), we find the following facts.
Around 11 p.m. on July 8, 2013, Frison, in the company of
friends and family, was returning home after a flight from New
Orleans to Trenton Mercer County Airport. They all utilized a
shuttle bus service provided by A-1 to travel to a remote parking
lot used by the airport's customers. The driver of the bus, Andre
Williams, dropped Frison off in an unilluminated area of the
gravel-surfaced lot. While stepping off the bus, Frison lost her
footing and fell to the ground. Frison suffered a tear in the
meniscus of her left knee and fractured a bone in her right foot.
On June 10, 2016, A-1 and Andre Williams filed a motion for
summary judgment prior to the August 11, 2016 discovery end date.
2 A-0763-16T3 On July 8, 2016, the Mercer County defendants filed a motion for
summary judgment. Oral argument on both motions was conducted
before the Law Division. Upon completion, the judge granted both
motions by orders dated September 9, 2016. This appeal followed.
On appeal, Frison raises the following arguments:1
POINT I
THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS, A-1 LIMOUSINE AND ANDRE WILLIAMS BECAUSE THESE DEFENDANTS ACTED UNREASONABLY IN DROPPING PLAINTIFF/APPELLANT OFF IN A DANGEROUSLY DARK PORTION OF THE GRAVEL PARKING LOT.
POINT II
THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS, TRENTON MERCER AIRPORT, MERCER COUNTY, AND MERCER COUNTY DEPARTMENT OF TRANSPORTATION AND INFRASTRUCTURE BECAUSE THESE DEFENDANTS ACTED IN A PALPABLY UNREASONABLE MANNER BY NOT INSTALLING ANY LIGHTS IN THE REMOTE PARKING LOT WHERE PLAINTIFF/APPELLANT FELL AND THEREFORE THE MERCER COUNTY DEFENDANTS ARE NOT IMMUNE. POINT III
THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS, TRENTON MERCER AIRPORT, MERCER COUNTY, AND MERCER COUNTY DEPARTMENT OF TRANSPORTATION AND
1 Frison references in her brief that the motion was filed before the end of the discovery period, yet she has not argued that the motions were premature. In the ordinary course, arguments not raised on appeal are deemed waived. Zaman v. Felton, 219 N.J. 199, 227 (2014).
3 A-0763-16T3 INFRASTRUCTURE BECAUSE THE PLAINTIFF HAS MEDICAL BILLS IN EXCESS OF [$3600] AND HAS SUFFERED A SIGNIFICANT AND PERMANENT LOSS OF BODILY FUNCTION BECAUSE OF THIS ACCIDENT AND THEREFORE THE MERCER COUNTY DEFENDANTS ARE NOT IMMUNE.
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court. Townsend v.
Pierre, 221 N.J. 36, 59 (2015) (citing Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014)). "Summary judgment
must be granted 'if the pleadings, depositions, answers to
interrogatories[,] and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to
a judgment or order as a matter of law.'" Town of Kearny v.
Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
Thus, we consider, as the trial judge did, whether "the
competent evidential materials presented, when viewed in the light
most favorable to the non-moving party, are sufficient to permit
a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Ibid. (quoting Brill, supra, 142
N.J. at 540). If there is no genuine issue of material fact, we
must then "decide whether the trial court correctly interpreted
the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494
(App. Div. 2007), certif. denied, 195 N.J. 419 (2008) (citing
4 A-0763-16T3 Prudential Prop. & Cas. Co. v. Boylan, 307 N.J. Super. 162, 167
(App. Div.), certif. denied, 154 N.J. 608 (1998)). We accord no
deference to the trial judge's conclusions on issues of law and
review issues of law de novo. Nicholas v. Mynster, 213 N.J. 463,
478 (2013).
We first address Frison's claim of error in granting summary
judgment on behalf of the Mercer County defendants. Having
considered the discovery record, we conclude that Frison's claim
that the Mercer County defendants allowed a dangerous condition
to exist on its premises, i.e., a poorly illuminated gravel parking
lot, is without basis in fact and fails as a matter of law.
The claim by Frison is governed by the Tort Claims Act (TCA).
N.J.S.A. 59:1-1 to 12-3. N.J.S.A. 59:4-2 provides that a public
entity is liable if a plaintiff establishes: (1) the public
property was in a 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 condition. Additionally, a public entity is not liable for
a dangerous condition of its property if "the action the entity
5 A-0763-16T3 took to protect against the condition or the failure to take such
action was not palpably unreasonable." N.J.S.A. 59:4-2.
The heightened "palpably unreasonable" standard applies to
dangerous conditions of public property, and is intended to comport
with the principles of liability used by the courts for local
public entities in their capacity as landowners. Margolis &
Novack, Claims Against Public Entities, 1972 Task Force Comment
on N.J.S.A. 59:4-2 (2016). Although the statute has been broadly
applied, it is nevertheless limited to instances where a dangerous
condition of public property itself is at issue. Ibid.; Ogborne
v. Mercer Cemetery Corp., 197 N.J. 448, 459-60 (2009).
The TCA defines a "dangerous condition" 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." N.J.S.A. 59:4-1(a). The
condition must present a "substantial risk of injury" to be
actionable. Polyard v. Terry, 160 N.J. Super. 497, 508 (App. Div.
1978), aff'd, 79 N.J. 547 (1979). It cannot be "minor, trivial
or insignificant." Id. at 509.
Considered in light of the controlling law, we conclude Frison
has not demonstrated that a "dangerous condition" existed in the
parking lot at the time of the incident. Other than the argument
that the lot's surface was gravel, Frison provided no proof that
6 A-0763-16T3 the condition was dangerous such that it presented a substantial
risk of injury. As well, Frison provided no proof that, if a
dangerous condition did exist, it was the cause of the injury and
that the public entities had actual or constructive notice of the
condition.2 Consequently, Frison's claim of the existence of a
dangerous condition fails. Thus, we do not need to address the
issue whether the Mercer County defendants' conduct was "palpably
unreasonable."
The judge also granted summary judgment after finding that
Frison failed to prove the accident caused her to suffer a
"substantial loss of a bodily function." Given our determination
regarding the lack of proofs relating to a dangerous condition,
we do not need to address whether Frison's injuries were
compensable under the TCA. See N.J.S.A. 59:9-2(d); Gilhooley v.
Cty. of Union, 164 N.J. 533 (2000).
We next address whether it was error to dismiss Frison's
claims against A-1 and Williams. "[A] negligence cause of action
requires the establishment of four elements: (1) a duty of care,
(2) a breach of that duty, (3) actual and proximate causation, and
2 Although we view the proofs adduced during discovery in a light favorable to Frison, it is without factual dispute that prior to this incident, the Mercer County defendants had no record of individuals falling in this lot or of complaints regarding the lighting in the lot.
7 A-0763-16T3 (4) damages." Jersey Cent. Power & Light Co. v. Melcar Util. Co.,
212 N.J. 576, 594 (2013). "[W]hether a defendant owes a legal
duty to another and the scope of that duty are generally questions
of law for the court to decide." Robinson v. Vivirito, 217 N.J.
199, 208 (2014) (citing Carvalho v. Toll Bros. & Developers, 143
N.J. 565, 572 (1996)).
"[N]o bright line rule . . . determines when one owes a legal
duty to prevent a risk of harm to another." Wlasiuk v. McElwee,
334 N.J. Super. 661, 666 (App. Div. 2000). The imposition of a
duty depends on the interplay of many factors, including: (1) the
relationship of the parties; (2) the nature of the attendant risk;
(3) the opportunity and ability to exercise care; and (4) the
public interest in the proposed solution. Hopkins v. Fox & Lazo
Realtors, 132 N.J. 426, 439 (1993) (citing Goldberg v. Housing
Auth., 38 N.J. 578, 583 (1987)). "Ultimately, [New Jersey] Supreme
Court cases repeatedly emphasize that the question of whether a
duty exists is one of 'fairness' and 'public policy.'" Wlasiuk,
supra, 334 N.J. Super. at 666-67 (quoting Hopkins, supra, 132 N.J.
at 439).
Applying these factors, we conclude that plaintiff has not
established a legal basis to impose a duty of care on A-1 and
Williams under the circumstances presented. A-1 transported
Frison to an area of the parking lot and dropped her off. Frison
8 A-0763-16T3 made no claim and offered no proofs that the vehicle's condition
caused her to fall. A-1 did not own, operate or maintain the
parking lot. Further, there was no proof that A-1 or Williams had
notice of any condition of the lot as to implicate a duty to warn.
In sum, from our independent de novo review of the record developed
before the motion judge, we cannot conclude A-1 or Williams had
knowledge or should have had knowledge of the parking lot's alleged
dangerous condition such as to impose a duty to rectify the
condition or to warn Frison of its presence.
Aside from our determination that A-1 and Williams did not
breach their duty to Frison, when considering traditional notions
of liability, i.e., reasonable care commensurate with the risk of
harm and the lack of foreseeability, we determine that fairness
considerations militate against imposing a duty.
Finally, although not addressed by the motion judge, we view
the equality of Frison's knowledge of the lighting conditions of
the parking lot to that of A-1 and Williams as relevant. Assuming
that the area was "dimly lit," this condition was readily
observable by Frison. On this score, we hold A-1 and Williams
cannot be liable due to Frison's failure to use due care. See
Berger v. Shapiro, 30 N.J. 89, 99 (1959).
Affirmed.
9 A-0763-16T3