PHILLIP CEVALLOS VS. STATE OF NEW JERSEY (L-4250-15, HUDSON COUNTY AND STATEWIDE)

CourtNew Jersey Superior Court Appellate Division
DecidedMay 20, 2019
DocketA-4383-17T1
StatusUnpublished

This text of PHILLIP CEVALLOS VS. STATE OF NEW JERSEY (L-4250-15, HUDSON COUNTY AND STATEWIDE) (PHILLIP CEVALLOS VS. STATE OF NEW JERSEY (L-4250-15, HUDSON COUNTY AND STATEWIDE)) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PHILLIP CEVALLOS VS. STATE OF NEW JERSEY (L-4250-15, HUDSON COUNTY AND STATEWIDE), (N.J. Ct. App. 2019).

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4383-17T1

PHILLIP CEVALLOS and DENISE MELENDEZ- CEVALLOS, his wife,

Plaintiffs-Appellants,

v.

STATE OF NEW JERSEY, NEW JERSEY ATTORNEY GENERAL'S OFFICE,

Defendants/Third-Party Plaintiffs-Respondents,

LIGHTING & DECORATING COMPANY, INC. and OCEAN RENTAL SERVICES, LLC,

Third-Party Defendants. _______________________________

Submitted April 3, 2019 - Decided May 20, 2019

Before Judges Accurso and Moynihan. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4250-15.

Hegge & Confusione, LLC, attorneys for appellants (Michael J. Confusione, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondents (Melissa H. Raksa, Assistant Attorney General, of counsel; Robert J. McGuire, Deputy Attorney General, on the brief).

PER CURIAM

In this Title 59 matter, plaintiff Phillip Cevallos 1 appeals from the entry

of summary judgment dismissing his complaint against defendant State of New

Jersey, New Jersey Attorney General's Office. Because we agree summary

judgment was properly granted to the State on the undisputed facts, we affirm.

These are the essential facts, all of which are undisputed. Plaintiff was a

Hudson County Sheriff's Officer assigned to work the Fugitive Safe Surrender

Program at the Jersey City Armory on November 15, 2013. He testified that

when he arrived at 8 a.m., the place was very busy with lines stretching for

blocks and five hundred to a thousand people waiting to get inside.

The State had transformed the armory into eighteen courtrooms, hiring a

variety of outside contractors to provide necessary equipment to facilitate the

1 Plaintiff's wife also sued per quod. In referring to plaintiff, we mean Phillip Cevallos.

A-4383-17T1 2 operation, including providing a temporary auxiliary electrical supply. One of

those contractors constructed a raised walkway or platform to cover electrical

wires installed to power the computer system. The side of the platform was

marked with a black and yellow warning tape. On the morning of the last day

of the program, plaintiff entered the armory from a side entrance and stepped

onto a wheeled wooden dolly left near the raised walkway, which rolled out

from under him causing him to fall. He testified he was familiar with the

platform having walked in the area before. Looking forward to where he was

going, he saw the dolly using his peripheral vision and thought it was part of

the platform.

No one testified the State owned or controlled the dolly on which

plaintiff slipped, although several witnesses acknowledged dollies were used

to move equipment in and out of the armory, and one witness stated the height

of the platform and the dolly appeared similar in the photograph taken after

plaintiff fell. No one, including employees of the sheriff's department, recalled

seeing a dolly in the area prior to plaintiff's fall. And no one testified that

anyone from the State was made aware of the dolly being left near the

platform.

A-4383-17T1 3 After hearing argument, Judge Galis-Menendez granted the State's

motion for summary judgment. Based on the undisputed facts in the motion

record, including photographs of the dolly and the platform, the judge found

plaintiff had not established any physical defect in the property giving rise to a

dangerous condition. Specifically, she found the dolly did not present a

substantial risk of injury when used with due care for its foreseeable purpose.

The judge further found nothing in the record to establish the State had placed

the dolly near the walkway or had actual or constructive notice of its

placement. The judge noted plaintiff had adduced nothing to show anyone had

complained about the dolly before he fell and failed to show how long the

dolly had been in the position it was when he stepped onto it. Thus, in

addition to not being able to establish the property was in a dangerous

condition, the judge further found plaintiff had failed to establish notice on the

part of the State.

Plaintiff appeals, contending the evidence was sufficient to permit a

reasonable jury to find a dangerous condition. He further argues summary

judgment was premature because discovery was not complete on the notice

issue. We disagree.

A-4383-17T1 4 We review summary judgment using the same standard that governs the

trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).

Thus, we consider "whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso,

P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 536 (1995)).

N.J.S.A. 59:4-2 addresses a dangerous condition of public property and

provides as follows:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing 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

A-4383-17T1 5 protect against the condition or the failure to take such action was not palpably unreasonable.

Thus to impose liability on a public entity pursuant to that section, a plaintiff must establish the existence of a "dangerous condition," that the condition proximately caused the injury, that it "created a reasonably foreseeable risk of the kind of injury which was incurred," that either the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity's conduct was "palpably unreasonable."

[Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 125 (2001) (quoting N.J.S.A. 59:4-2).]

As the State did not dispute that plaintiff was injured by stepping onto

the dolly, the focus on the motion was whether the dolly's placement near the

platform constituted a dangerous condition and, if so, whether the State created

the condition or had notice of it a sufficient time prior to the accident to

correct it. The Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, defines "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).

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Brill v. Guardian Life Insurance Co. of America
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PHILLIP CEVALLOS VS. STATE OF NEW JERSEY (L-4250-15, HUDSON COUNTY AND STATEWIDE), Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillip-cevallos-vs-state-of-new-jersey-l-4250-15-hudson-county-and-njsuperctappdiv-2019.