Reginald Jones v. Township of Irvington

• Court: New Jersey Superior Court Appellate Division
• Decided: February 6, 2024
• Docket: A-3209-21
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3209-21

REGINALD JONES,

Plaintiff-Appellant,

v.

TOWNSHIP OF IRVINGTON,

Defendant-Respondent. ___________________________

Submitted November 6, 2023 – Decided February 6, 2024

Before Judges DeAlmeida and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5760-19.

Sheffet and Dvorin, PC, attorneys for appellant (Ethan J. Sheffet, on the briefs).

Lamb Kretzer, LLC, attorneys for respondent (George C. Roselle III, on the brief).

PER CURIAM

In this Title 59 action, plaintiff Reginald Jones appeals from the entry of

summary judgment dismissing his complaint against defendant Township of Irvington and the denial of his motion for reconsideration. Having reviewed the

record and the applicable governing principles, we affirm.

I.

We review a grant or denial of summary judgment de novo, "applying the

same standard used by the trial court." Samolyk v. Berthe, 251 N.J. 73, 78

(2022). Based on that standard, we are required to "determine whether '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.'" Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582

(2021) (quoting R. 4:46-2(c)). "Summary judgment should be granted . . .

'against a party who fails to make a showing sufficient to establish the existence

of an element essential to that party's case, and on which that party will bear the

burden of proof at trial.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020)

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). We do not defer

to the trial court's legal analysis or statutory interpretation. RSI Bank v.

Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018); Perez v. Zagami, LLC,

218 N.J. 202, 209 (2014).

A-3209-21 2 In August 2017, plaintiff was injured when he attempted to cross in the

middle of Isabella Avenue in Irvington. He stepped off the curb and into a hole

in the street adjacent to the curb. Plaintiff's feet became "stuck" in the hole,

causing him to fall and sustain injuries.

Two years later, plaintiff filed a two-count complaint against the

Township, asserting negligence. The Township filed its answer asserting

defenses, including immunity under the New Jersey Tort Claims Act, N.J.S.A.

59:1-1 to 12-3 (TCA). The parties engaged in discovery; depositions were not

taken, and experts were not retained. Attached to plaintiff's interrogatory

responses were eleven photographs of the "accident scene." The photographs

depicted a hole, surrounded by vegetation growth, cracked, and filled with

garbage and vegetation. Plaintiff claimed the hole measured approximately

nineteen inches long, nineteen inches wide and sixteen inches deep.

Following the close of discovery, the Township moved for summary

judgment, arguing plaintiff had failed to state a claim for public entity liability

under N.J.S.A. 59:4-2 for injuries caused by a dangerous condition of property.

Plaintiff filed opposition to the motion, asserting the Township had constructive

notice of the "large sink hole."

A-3209-21 3 On March 18, 2022, after hearing argument, the motion judge issued an

oral decision, memorialized in an order. The judge noted plaintiff's opposition

was not procedurally compliant with Rule 4:46-2(b) because a certification or a

counterstatement of material facts in dispute were not filed. Nevertheless, after

considering the merits of plaintiff's opposition, the motion judge granted

defendant's motion. The judge found plaintiff "failed to put forth any competent

evidence, apart from mere speculation, and legal conclusion" that the hole was

a dangerous condition. See Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.

415, 425-26 (App. Div. 2009). Citing Polzo v. Cnty. of Essex, 209 N.J. 51, 75-

76 (2012), the court reasoned that even if the hole in the street was a dangerous

condition, plaintiff "failed to cite any evidence in the record to support his

conclusion beyond simply" there was a hole in the street, the Township created

the dangerous condition, or the Township had actual or constructive notice of

the dangerous condition as required pursuant to N.J.S.A. 59:4-2.

Finally, the motion judge highlighted the only evidence in support of

plaintiff's opposition were the photographs annexed to plaintiff's interrogatory

responses. The judge noted the photographs reviewed were not "glossy color

picture[s]," and were provided without a certification stating who took the

picture and when they were taken.

A-3209-21 4 Thereafter, plaintiff moved for reconsideration of the motion judge's

March 18 order, arguing the motion judge "'overlooked the undisputed facts, the

controlling decisions, case law and court rules . . . and erred in granting

defendant's motion for summary judgment.'" Plaintiff specifically challenged

the judge's analysis regarding the photographs submitted in support of the

motion.

On May 16, 2022, the motion judge entered an order accompanied by a

well-reasoned written opinion denying plaintiff's motion. The judge found

"[t]here [was] no competent evidence in the record on the summary judgment

motion or the motion for reconsideration that demonstrate [d]efendant had such

knowledge prior to [p]laintiff's injury with a reasonable amount of time to fix

the condition." The judge further found "[p]laintiff ha[d] provided no evidence

or expert testimony that could lead any reasonable trier of fact . . . to determine

that [d]efendant had actual or constructive knowledge of the hole." As to the

photographs, the judge iterated "[t]he only evidence [p]laintiff . . . provide[d]

[were] the photographs of the hole which were unauthenticated, and which [did]

not accurately depict the measurement of the hole."

On appeal, plaintiff argues the trial judge abused his discretion in granting

summary judgment by failing to apply the summary judgment standard and case

A-3209-21 5 law, failed to consider the disputed facts in the light most favorable to plaintiff,

and attacked the quality and admissibility of plaintiff's evidence.

The TCA "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).

Under the TCA, a public entity has a duty of care different from "that . . .

owed under the negligence standard." Polzo, 209 N.J. at 76; see also Ogborne

v. Mercer Cemetery Corp., 197 N.J. 448, 460 (2009). When asserting a claim

for injuries under the TCA, the plaintiff has the burden of satisfying each

element of a cause of action under N.J.S.A. 59:4-2. Polzo, 209 N.J. at 66; see

also Carroll v. N.J. Transit, 366 N.J. Super. 380, 386 (App. Div. 2004). A failure

to present sufficient evidence establishing any element of a cause of action under

N.J.S.A. 59:4-2 requires dismissal of the claim. Polzo, 209 N.J. at 66.

Only in limited circumstances are public entities liable in tort under the

TCA for injuries caused by conditions of a property. Under N.J.S.A. 59:4-2, a

public entity has tort liability for injuries caused by the entity's property only

where plaintiff established: (1) the public entity's "property was in dangerous

condition at the time of the injury"; (2) "the injury was proximately caused by

A-3209-21 6 the dangerous condition"; (3) "the dangerous condition created a reasonably

foreseeable risk of the kind of injury which was incurred"; and (4) "a neglig ent

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[.]" Stewart v. New Jersey Tpk. Auth./Garden State Parkway, 249 N.J.

642, 656 (2022) (citation omitted) (quoting N.J.S.A. 59:4-2). 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." Vincitore v. N. J. Sports & Exposition Auth., 169 N.J. 119, 125

(2001).

Plaintiff argues the material facts are disputed. Plaintiff further argues

"there was no evidence in the record to support any claim that the property was

not hazardous, or that the Township did not have constructive notice of the

condition." Plaintiff's arguments are belied by the record.

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

injury to have taken measures to protect against the dangerous condition."

N.J.S.A. 59:4-2(b). The public entity is

deemed to have constructive notice of a dangerous condition . . . only if the plaintiff establishes that the

A-3209-21 7 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).]

We are satisfied the trial judge correctly determined plaintiff did not

establish liability under the TCA because there was no evidence in the record

that the Township caused the hole in the street. Moreover, as to actual or

constructive notice of the "large sink hole," plaintiff provided no citation to the

record that the Township had any notice. Plaintiff's citation to the Township

Public Works website, coupled with the argument that notice was provided

because the street sweepers were on Isabella Avenue twice a week is insufficient

to show the Township had actual or constructive notice of the hole . In the

absence of competent evidence, including admissible expert testimony and

proofs showing any reports were made about the hole, plaintiff has not

established the Township had actual notice thereof. Lastly, plaintiff did not put

forth any evidence that the Township acted in a palpably unreasonable manner.

We agree with the motion judge that plaintiff's claim is based on nothing more

than "mere speculation."

We reject plaintiff's argument that the motion judge "attacked the quality

and admissibility of the photographs." The trial judge noted the only evidence

A-3209-21 8 relied upon by plaintiff were photographs annexed to his interrogatory response.

The judge appropriately determined the photographs were insufficient

competent evidence because there was no foundation for the photographs. There

was no competent testimony concerning the measurements of the hole, who took

the photographs, when they were taken, and if they were altered.

Having reviewed the record de novo and in the light most favorable to

plaintiff, we find no cause to reverse the motion judge's findings and conclusion

that plaintiff failed to meet his burden and establish the Township had or could

have had actual or constructive notice of the hole in the middle of Isabella

Avenue. Polzo, 209 N.J. at 67.

Therefore, we conclude plaintiff's claim fails as a matter of law because

the summary judgment record is devoid of competent evidence defendant had

constructive notice of the street's condition prior to plaintiff's fall. See N.J.S.A.

59:4-2(b).

"A motion for reconsideration . . . is a matter left to the trial court's sound

discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane

Morris, LLP, 202 N.J. 79, 87 (2010)); see also Cummings v. Bahr, 295 N.J.

Super. 374, 389 (App. Div. 1996). A party may move for reconsideration of a

court's decision pursuant to Rule 4:49-2, on the grounds that (1) the court based

A-3209-21 9 its decision on "a palpably incorrect or irrational basis," (2) the court either

failed to consider or "appreciate the significance of probative, competent

evidence," or (3) the moving party is presenting "new or additional information

. . . which it could not have provided on the first application." Id. at 384 (quoting

D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)). We have

reviewed the record and find no basis on which to reverse the trial court's order

denying reconsideration. The court considered the arguments raised by plaintiff

and adequately explained why reconsideration of its order granting summary

judgment was not warranted.

To the extent we have not expressly addressed any of plaintiff's remaining

arguments, we find they are without sufficient merit to warrant discussion in this

opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-3209-21 10