                                NOT FOR PUBLICATION WITHOUT THE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-0154-18T3
MERRI MATTHEWS,

          Plaintiff-Appellant,

v.

BOROUGH OF BELMAR,

     Defendant-Respondent.
______________________________

                    Argued August 5, 2019 – Decided August 15, 2019

                    Before Judges Sabatino and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-1152-16.

                    Thomas M. Rogers argued the cause for appellant
                    (Caruso Smith Picini, PC, attorneys; Thomas M.
                    Rogers, of counsel and on the brief).

                    Nicole M. Grzeskowiak argued the cause for
                    respondent (Hoagland, Longo, Moran, Dunst &
                    Doukas, LLP, attorneys; Nicole M. Grzeskowiak, of
                    counsel and on the brief).

PER CURIAM
      Plaintiff Merri Matthews appeals from the trial court's order of summary

judgment dismissing her claims against defendant Borough of Belmar. Plaintiff

fell off the east side of the Belmar boardwalk sustaining serious injuries. She

filed suit against defendant, alleging the absence of a handrail constituted a

dangerous condition that was a proximate cause of her fall. The trial court found

that defendant was immunized from plaintiff's claims pursuant to the Tort

Claims Act and that plaintiff could not establish the elements of liability under

the statute. We affirm.

      In October 2012, a portion of defendant’s boardwalk was destroyed by

Hurricane Sandy. During the rebuilding process, defendant applied for federal

funding assistance, in part for the reconstruction of the destroyed boardwalk.

This funding would reimburse defendant for ninety percent of the costs incurred

in rebuilding the boardwalk.       Reimbursement was dependent upon the

boardwalk being rebuilt "in kind"  as it was prior to Hurricane Sandy.

Amenities that were not previously part of the boardwalk and were not required

by code, such as railings, would not receive FEMA funding.

      Paul Calabrese, the Borough Engineer, coordinated with the Borough

Administration on the construction of the boardwalk and supervised its design

and construction.    In contemplating the reconstruction design, defendant


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                                       2
consulted engineers about a number of aspects of the boardwalk, including the

placement of railings. Once it was confirmed that the absence of railings along

the entire boardwalk did not violate any codes or raise any engineering concerns,

defendant ultimately decided to forego the installation of railings other than

those required by the American Disability Act, 42 U.S.C. §§ 12101 to 12213,

along the nineteen access points. In December 2012, the Borough Council

presented its plan for the reconstruction of the boardwalk to the public.

Thereafter, Calabrese approved and signed off on the design plan. The approved

plans did not include railings along the eastern edge of the boardwalk, including

the eastern edge of the beach badge booth where plaintiff's accident occurred.

Defendant thereafter invited the submission of bids, and subsequently awarded

contracts for the reconstruction pursuant to the approved plans.

      On May 26, 2014, plaintiff arrived at the boardwalk and proceeded to a

booth to purchase a beach badge.        The booth is located on a "bump out"

connection to the boardwalk, which extends easterly towards the ocean and sits

elevated above the sand. The "bump out" does not provide access to the beach;

rather, the beach can only be accessed at select access points that have stairs and

ramps for patrons to use to walk to the beach. After purchasing a beach badge,

plaintiff turned and stepped away from the booth. As she did so, plaintiff


                                                                           A-0154-18T3
                                        3
stepped off the east edge of the boardwalk and fell. Her face struck the edge of

the boardwalk, and she sustained serious injuries to her face and jaw.

      On August 9, 2018, the trial judge granted summary judgment in favor of

defendant, finding that defendant was entitled to plan or design immunity

pursuant to N.J.S.A. 59:4-6 and discretionary immunity pursuant to N.J.S.A.

59:2-3(a). In addition, the judge found that plaintiff failed to prove defendant's

conduct was palpably unreasonable as required by N.J.S.A. 59:4-2. This appeal

ensued.

      On appeal, plaintiff argues that plan or design immunity does not apply

because defendant's decisions regarding whether to install a handrail were made

by the Borough's mayor, business administrator, and engineer, rather than the

full Borough Council. We disagree and affirm.1




1
   Because we agree with the trial judge's conclusion that defendant established
its entitlement to plan or design immunity, we find it unnecessary to address her
alternate grounds for dismissal based on discretionary immunity pursuant to
N.J.S.A. 59:2-3(a), or plaintiff's failure to prove defendant's conduct was
palpably unreasonable as required by N.J.S.A. 59:4-2. Defendant's motion to
bar plaintiff's liability expert was scheduled for the week after the summary
judgment order under review, and was thus rendered moot.
                                                                          A-0154-18T3
                                        4
Standard of Review

      We review a grant of summary judgment de novo. Conley v. Guerrero,

228 N.J. 339, 346 (2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)).

            [W]hen deciding a motion for summary judgment under
            Rule 4:46–2, the determination whether there exists a
            genuine issue with respect to a material fact challenged
            requires the motion judge to consider whether the
            competent evidential materials presented, when viewed
            in the light most favorable to the non-moving party in
            consideration of the applicable evidentiary standard,
            are sufficient to permit a rational factfinder to resolve
            the alleged disputed issue in favor of the non-moving
            party.

            [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
            523 (1995).]

"[S]ummary judgment will be granted if there is no genuine issue of material

fact and 'the moving party is entitled to a judgment or order as a matter of law.'"

Conley, 228 N.J. at 346 (citing Templo Fuente, 224 N.J. at 199). In reviewing

a grant of summary judgment, appellate courts 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." Brill, 142 N.J.

at 536 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986)). If




                                                                           A-0154-18T3
                                        5
there is no issue of fact, appellate courts give no special deference to the trial

court's rulings on matters of law. Templo Fuente, 224 N.J. at 199.

Plan or Design Immunity

      Public entity liability in New Jersey is governed by the New Jersey Tort

Claims Act. N.J.S.A. 59:1-1 to 12-3 (the Act). The purpose of the Act is to

"establish[] the parameters" for which recovery for tortious injury may be sought

against public entities or public employees. Coyne v. State, 182 N.J. 481, 488

(2005).

      Except as otherwise provided by the Act, "[t]he guiding principle . . . is

that 'immunity from tort liability is the general rule and liability is the

exception.'" Coyne, 182 N.J. at 488 (quoting Garrison v. Twp. of Middletown,

154 N.J. 282, 286 (1998)). The rationale behind granting immunity is to avoid

judicial interference with authorized State decisions. See Thompson v. Newark

Housing Auth., 108 N.J. 525, 534 (1987).

      Plan or design immunity provided under N.J.S.A. 59:4-6 is an affirmative

defense as to which the public entity has the burden of proof. See Birchwood

Lakes Colony Club v. Borough of Medford Lakes, 90 N.J. 582, 599-600 (1982).

The statute provides that

            Neither the public entity nor a public employee is liable
            under this chapter for an injury caused by the plan or

                                                                          A-0154-18T3
                                        6
            design of public property, either in its original
            construction or any improvement thereto, where such
            plan or design has been approved in advance of the
            construction or improvement by the Legislature or the
            governing body of a public entity or some other body
            or a public employee exercising discretionary authority
            to give such approval or where such plan or design is
            prepared in conformity with standards previously
            approved.

            [N.J.S.A. 59:4-6(a).]

      In order for plan or design immunity to attach, the public entity must

establish that "the condition that allegedly caused the injury was 'an approved

feature of the plan or design.'" Kain v. Gloucester City, 436 N.J. Super. 466,

474 (App. Div. 2014) (quoting Thompson, 108 N.J. at 536). The public entity

must demonstrate that such plan or design has been approved in advance of

construction or improvement by a body vested with the authority to give such

approval. See Manna v. State, 129 N.J. 341, 353-54 (1992) (holding the State

immune from liability after the State demonstrated that the bridge design was

adequately approved in advance of its construction).

      "A public entity . . . need not show that a feature of the plans (such as the

installation of guardrails or paving an entire intersection) 'was specifically

considered and rejected.'" Luczak v. Twp. of Evesham, 311 N.J. Super. 103,

109 (App. Div. 1998) (quoting Thompson, 108 N.J. at 537)). The public entity


                                                                           A-0154-18T3
                                        7
must only provide "evidence that it had considered the general condition about

which [the] plaintiff complains in formulating the original plan or design."

Luczak, 311 N.J. Super. at 109 (quoting Manna, 129 N.J. at 358). Moreover,

entitlement to the defense "does not depend upon any showing of the

reasonableness of the design."     Birchwood Lakes, 90 N.J. at 599.        Once

established, plan or design immunity is perpetual, and cannot be lost if later

knowledge shows a design or plan to be dangerous, or later circumstances render

it dangerous. See Birchwood, 90 N.J. at 598-99.

      In this case, the condition complained of, the absence of handrails, was an

approved feature of the plan or design. There is no question that defendant, in

coordination with the Mayor and the Borough Engineer, actually considered

whether and to what extent to include handrails in reconstructing the boardwalk.

In formulating that decision, defendant considered the fact that FEMA would

only provide ninety percent reimbursement for "in-kind" reconstruction. In that

regard, prior to Hurricane Sandy, the boardwalk did not have railings except at

designated access points. Moreover, the Borough Engineer researched whether

the absence of railings along the entire boardwalk violated any codes or raised

any engineering concerns. Finding no violation of any code or other engineering

design principles, defendant made the conscious choice to forego the installation


                                                                         A-0154-18T3
                                       8
of railings other than those required by the American Disability Act, 42 U.S.C.

§§ 12101 to 12213.

      In December 2012, the Borough Council presented its plan for the

reconstruction of the boardwalk to the public, which included a discussion of

the plans for only limited railings. Thereafter, the Borough Engineer approved

and signed off on the overall design plan. These decisions were all approved

and ratified by the Borough Council prior to the reconstruction of the boardwalk.

Accordingly, the trial court was correct in its ruling that, under these facts,

documented by the record, defendant established its entitlement to plan or design

immunity, and therefore summary judgment was appropriately granted.

      Affirmed.




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