                                NOT FOR PUBLICATION WITHOUT THE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-3095-18T1

LESLIE MARTINEZ-GOMEZ,

         Plaintiff-Appellant,

v.

UNITED DOMINICANS OF
PERTH AMBOY, ROBERT N.
WILENTZ ELEMENTARY, and
PERTH AMBOY BOARD OF
EDUCATION,

         Defendants-Respondents,

and

CITY OF PERTH AMBOY,

     Defendant.
_____________________________

                   Submitted January 21, 2020 – Decided March 5, 2020

                   Before Judges Sabatino and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Docket No. L-4270-16.
            Levinson Axelrod, PA, attorneys for appellant (Adam
            L. Rothenberg, on the briefs).

            Law Office of Gerald F. Strachan, attorneys for
            respondent United Dominicans of Perth Amboy
            (Matthew Raymond Panas, on the brief).

            Kent & McBride, PC, attorneys for respondents Perth
            Amboy Board of Education and Robert N. Wilentz
            Elementary (Jay David Branderbit, Caitlin A. Harley
            and Alysia J. Remaley, on the brief).

PER CURIAM

      In this personal injury action, plaintiff Leslie Martinez-Gomez appeals

from a Law Division order granting summary judgment to defendants United

Dominicans of Perth Amboy (United), the Robert N. Wilentz Elementary, and

the Perth Amboy Board of Education (collectively the Board). We affirm.

                                       I.

      We take the facts from the summary judgment record, viewing them in the

light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213

N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523

(1995)). Plaintiff was a food vendor at a three-day festival (the Festival) held

by United on the Board's property. While returning from using a portable toilet

provided by United, she tripped and fell when crossing a concrete walkway. At

the time, United, a non-profit organization, was permitted to use the property by

                                                                        A-3095-18T1
                                       2
defendant City of Perth Amboy (City) and the Board for its annual Festival,

which was open to the general public and held on Wilentz Field.

      Since the Festival lasted until nightfall, United rented portable light

towers. United and the Perth Amboy Police Department oversaw placement of

the light towers. The three-day Festival drew five to ten thousand attendees at

any given time.

      To accommodate the large crowd, United provided portable restrooms.

The portable restrooms were placed immediately in front of guardrails lining the

perimeter of the school's asphalt parking lot. In a section of the parking lot

without guardrail, a concrete, curving sidewalk connects the parking lot to

Wilentz Field. Grass covers either side of the curved sidewalk. Neither United

nor the Board placed any fencing between the parking lot and the grass area that

funneled attendees towards the sidewalk. Temporary fencing only surrounded

the Festival's beer garden.

      Plaintiff and her sister worked as hot dog vendors at the Festival. They

paid United an $800 vendor fee. Plaintiff signed a Vendor Registration Form

agreeing to hold United and the City harmless "for any loss, injury, theft or

damage" suffered by any vendor or employee "as a direct or indirect result of

the Festival."

                                                                        A-3095-18T1
                                       3
      Plaintiff and her sister arrived early Friday afternoon along with plaintiff's

husband, her stepdaughter, and several friends. Around 10:00 p.m., plaintiff and

her stepdaughter walked to the portable toilets, crossing the sidewalk and

adjoining grass school yard onto the parking lot without incident. After using

the portable toilets, the pair retraced their steps by walking from the parking lot,

onto the grass, then stepping back onto the curved sidewalk. According to

plaintiff, she tripped on a portion of the sidewalk, fell forward, and fractured her

left hip. At the time, she was wearing "clogs" that were open in the back. Her

stepdaughter was in front of her.

      Plaintiff estimated that the sidewalk was elevated "about two to three

inches above the grassy area where she fell." The sidewalk was on the property

that is either owned, or leased, by the Board. 1

      Plaintiff contends there was an unreasonable risk of harm created by

holding the Festival at night without adequate lighting, implying that she did not

see the sidewalk/grass height differential. But in deposition, the following

colloquy took place:

            Q. And would you be able to describe any type of
            lighting in the area where you fell?

1
  The record is not clear as to whether the Board owns the property or leased it
from the City.
                                                                           A-3095-18T1
                                         4
             A. There was some lighting. Again, I wasn't paying
             attention to all that.

             Q. Was there anything that prevented you from seeing
             the sidewalk before you fell?

             A. Not that I recall. I was looking forward.

      Plaintiff asserts that United did not inspect the property to ensure its

safety. She points to the depositions of Fermin DeJesus and Melanio Inoa.

DeJesus is the president of United. When asked whether any of United's agents

inspected the Festival grounds beforehand, DeJesus acknowledged they did not.

DeJesus also stated he was aware that attendees used the path that plaintiff

traversed when she fell; he also indicated plaintiff was the only attendee injured

at that year's Festival.

      Inoa is United's treasurer. Like DeJesus, she stated that no inspections

were made to determine if the Festival grounds were safe prior to it beginning.

Inoa also explained that she was not aware of any prior tripping accident in the

prior years when the Festival was held.

      Plaintiff retained an expert and alleges the sidewalk was in a dangerous

condition because there was a two to three-inch height difference between the

sidewalk edge and the adjacent grass. She brought this action against United



                                                                         A-3095-18T1
                                          5
under a premises liability theory and the Board under the New Jersey Tort

Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.

      Plaintiff's expert, Charles J. Witczak, III, P.E., issued an October 1, 2015

report following a September 12, 2014 inspection of the accident scene.

Witczak noted "[t]he area was dark at the time [of the accident] and no

supplemental lighting was provided specifically for the Festival activities."

Witczak found:

                   Photographs of the location of [plaintiff's]
            accident taken on [September 12, 2014] revealed that
            the concrete sidewalk surface was within industry
            standards, but there was a severe [2.75-inch] drop from
            same to the adjoining ground at the location of the
            accident. The area of the accident did not appear
            disturbed and was consistent with conditions present at
            the time of the accident, which was supported by the
            plaintiff's daughter. 2

      Witczak cited a City ordinance and a model code for walkway surfaces.

The City ordinance pertained to sidewalks abutting City streets, which is not the

case here. American Society for Testing and Materials (ASTM) document F

1637-09, entitled Standards for Safe Walking Surfaces, sets forth standards for

pedestrian sidewalks "that may be reasonably foreseeable as pedestrian paths."



2
  Witczak was apparently referring to plaintiff's stepdaughter who was not
deposed.
                                                                         A-3095-18T1
                                        6
Standard 5.0 governs walkway surfaces. According to Witczak, the following

provisions are pertinent:

            5.1.1 Walkways shall be stable, planar, flush, and even
            to the extent possible. Where walkways cannot be
            made flush and even, they shall conform to the
            requirements of 5.2 and 5.3.

                  ....

            5.2.1 Adjoining walkway surfaces shall be made flush
            and fair, whenever possible and for new construction
            and existing facilities to the extent practicable.

            5.2.2 Changes in levels of less than [0.25-inch] (6 mm)
            in height may be without edge treatment.

            5.2.3 Changes in levels [0.5 and 0.25-inch] (6 and 12
            mm) shall be beveled with a slope not greater than 1:2
            (rise : run).

            5.2.4 Changes in levels greater than [0.5-inch] (12 mm)
            shall be transitioned by means of a ramp or stairway
            that complies with applicable building codes,
            regulations, standards, or ordinances, or all of these.

                  ....

            Section 5.7.1.2—"Exterior walkway conditions that
            may be considered substandard and in need of repair
            include conditions in which the pavement is broken,
            depressed, raised, undermined, slippery, uneven, or
            cracked to the extent that the pieces can be removed."

      Witczak opined that the raised edge of the sidewalk



                                                                      A-3095-18T1
                                      7
              subjected the plaintiff to a tripping hazard not
              consistent with normal conditions expected for a typical
              sidewalk surface.      Instead of the normal planar
              condition, the edge of the sidewalk was raised above
              the plane of the adjacent grass lawn area, which
              resulted in changes in level consistent with a tripping
              hazard. The hazard was further intensified by the fact
              that this tripping hazard was made more difficult to
              visually identify by the growth of vegetation
              immediately adjacent to same and the poor lighting
              conditions at the time of the accident.

      The Board's expert, David M. Caruso, P.E., prepared an October 5, 2018

report, following a September 4, 2018 inspection of the accident site. Caruso

found the sidewalk was seven feet wide and "[a] vertical elevation difference

with a maximum height of [2.5] inches was measured between the grass surface

and the walkway surface in this area." He also found the concrete walkway "was

maintained in good condition and contained no holes, breaks, chips, or other

surface defects." Caruso opined that the sidewalk plaintiff tripped over "was

properly maintained[,] safe for its intended use and violated no known

applicable code, standard or ordinance."        He concluded that, "the height

differential between the grassed area and the concrete walkway . . . did not create

any unreasonable danger and violated no known applicable code, standard, or

ordinance."




                                                                          A-3095-18T1
                                         8
      Caruso provided the following comments about Witczak's report.

Because ASTM document F 1637-09 has not been adopted by the City, it is

"neither enforceable nor applicable to the subject accident."         Thus, "[a]ny

alleged violations of this document were not applicable to the grassed area." In

addition, Section F 1646's definition of a walkway does not include "[n]atural

surfaces such as fields, playing fields, paths, walks, or footpaths, or a

combination thereof." Accordingly, Caruso opined "that the natural surface

grassed area at the junction with the concrete walkway was not included within

the scope of" document F 1637-09. Therefore, the sections of the document

cited by Witczak "were not applicable to the subject accident."

      Caruso disagreed with Witczak's conclusion that "the grassed area at the

junction with the concrete walkway created a hazardous condition for

pedestrians who were attentive to their surroundings." Caruso noted that similar

height differentials "are common at the junction between a hard surface walkway

and an adjacent ground surface." In his opinion,

            the presence of the concrete walkway was open and
            obvious to persons making reasonable observations
            along their intended path of travel. Had [plaintiff]
            made reasonable observations returning to the festival
            from the portable restroom, as she had on her way from
            the festival to the portable restroom, her accident, in all
            probability, would not have occurred.

                                                                          A-3095-18T1
                                        9
      The City moved for summary judgment; the motion was withdrawn

without prejudice because the discovery end-date was extended. United filed an

opposed cross-motion for summary judgment, which was denied by the court.

      The City filed a second motion for summary judgment. The Board and

United cross-moved for summary judgment. On January 11, 2019, the court

granted summary judgment to the City but denied summary judgment to the

Board and United.

      The Board moved for reconsideration; United joined in the motion. 3 On

March 21, 2019, the court issued an order and oral decision granting

reconsideration to the Board and United. The court concluded that genuine

issues of material fact existed as "to all factors for establishing liability except

for the issue of notice." The court noted that plaintiff must show that the

dangerous condition existed before the accident "and was so obvious in nature

that the public entity should have discovered the condition." However, the court

found that "the mere existence of a dangerous condition [is not] enough to give

the property owner notice of the dangerous condition." The court further noted




3
 United's motion for reconsideration did not include supporting documents but
was still considered by the court.
                                                                           A-3095-18T1
                                        10
that "a proprietor generally is not liable for injuries caused by defects of which

he had no actual or implied knowledge, notice or reasonable opportunity to

discover."

      Regarding notice to the Board, the court stated:

                   Here, the facts indicate that at no time prior to the
             accident did the Board receive any complaints about the
             gap between the sidewalk and surrounding ground.

                    [The] Board never had to conduct repairs to fix
             similar issues with the sidewalk in the past, but also did
             not place the portable bathrooms at the location
             (indiscernible) the sidewalk, so the Board would not
             have any reason to know that this one specific part of
             the sidewalk would be more heavily used than other
             parts, such as to warrant additional safety precautions.

                   Moreover, the fact that the Board knew
             (indiscernible) a property does not [create a
             presumption] that the Board had notice of the alleged
             dangerous condition of the land.

Likewise, as to United,

             it also never received any prior notice of the sidewalk
             being elevate[d] and it never imposed an additional
             safety precaution in the past.

                   Even if the Board and United did have prior
             notice of the . . . two and three[-]quarter[-]inch gap, this
             would not necessarily put the defendants on notice that
             this gap would constitute a dangerous condition which
             would warrant repairs, as no prior incidents had



                                                                            A-3095-18T1
                                        11
           occurred in the past. It was not apparent that the
           sidewalk was in a dangerous condition.

     The court concluded "the facts do not suggest that the Board and United

had notice of the dangerous condition before the accident."     It therefore

determined the denial of summary judgment was "palpably incorrect" and

"summary judgment was appropriate." The court vacated its prior order and

granted summary judgment to the Board and United. This appeal followed.

     On appeal, plaintiff raises the following points:

           POINT I

           THE MARCH 21, 2019 ORDER VACATING THE
           PRIOR TWO ORDERS DENYING DEFENDANT
           UNITED'S MOTIONS FOR SUMMARY JUDGMENT
           AND DISMISSING THE CLAIMS AGAINST
           DEFENDANT    UNITED    WITH   PREJUDICE
           SHOULD BE REVERSED BECAUSE THE FACTS
           WEIGHED IN THE PLAINTIFF'S FAVOR WOULD
           ALLOW THE JURY TO FIND THAT IT
           NEGLIGENTLY BREACHED THE DUTY IT OWED
           HER.

           POINT II

           THE MARCH 21, 2019 ORDER VACATING THE
           PRIOR ORDER DENYING DEFENDANT BOARD'S
           MOTION FOR SUMMARY JUDGMENT AND
           DISMISSING    THE    CLAIMS   AGAINST
           DEFENDANT BOARD WITH PREJUDICE SHOULD
           BE REVERSED BECAUSE THE FACTS WEIGHED
           IN THE PLAINTIFF'S FAVOR WOULD ALLOW

                                                                    A-3095-18T1
                                     12
            THE JURY TO FIND THAT IT IS LIABLE UNDER
            THE TORT CLAIMS ACT FOR THE DANGEROUS
            CONDITION THAT EXISTED ON ITS PROPERTY.

                                        II.

      Our review of a summary judgment ruling is de novo, applying the same

legal standard as the trial court. 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)). That is, summary judgment will be granted where

"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." R. 4:46-2(c). When determining whether there is a

genuine issue of material fact, the court must consider "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." Brill, 142 N.J. at 540.

      We do not defer to the motion court's interpretation of "the meaning of a

statute or the common law." Nicholas v. Mynster, 213 N.J. 463, 478 (2013)

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




                                                                          A-3095-18T1
                                       13
                                       III.

      Plaintiff contends United was negligent. Negligence is never presumed.

Universal Underwriters Grp. v. Heibel, 386 N.J. Super. 307, 321 (App. Div.

2006). In order to hold United was liable for negligence, plaintiff was required

to establish four elements: "(1) a duty of care, (2) a breach of that duty, (3)

actual and proximate causation, and (4) damages."           Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Jersey Cent. Power &

Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013)). The burden is on

plaintiff to establish these elements "by some competent proof." Ibid. (quoting

Overby v. Union Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953), aff'd

o.b., 14 N.J. 526 (1954)).

      In order to recover, plaintiff must first establish that United owed a duty

to her. Strachan v. John F. Kennedy Mem'l Hosp., 109 N.J. 523, 529 (1988)

(citations omitted). The question whether a duty exits is one of law and not of

fact. Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991) (citing Strachen, 109 N.J.

at 529).

      It is undisputed that plaintiff was a business invitee since she was charged

a vendor fee by United. United owed plaintiff "a duty of reasonable care to

guard against any dangerous conditions on [its] property that the owner either

                                                                         A-3095-18T1
                                      14
knows about or should have discovered. That standard of care encompasses the

duty to conduct a reasonable inspection to discover latent dangerous

conditions." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44 (2012) (quoting

Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)).

      "[A]n invitee seeking to hold a business proprietor liable in negligence

'must prove, as an element of the cause of action, that the defendant had actual

or constructive knowledge of the dangerous condition that caused the accident.'"

Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 257 (2015) (quoting

Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003)). A "dangerous

condition of property may be found to exist when an unreasonable risk of harm

is created by the combination of a defect in the property itself and the acts of

third parties." Longo v. Aprile, 374 N.J. Super. 469, 474 (App. Div. 2005)

(quoting Roe by M.J. v. N.J. Transit Rail Operations, Inc., 317 N.J. Super. 72,

79 (App. Div. 1998)).

      The "mere existence of a dangerous condition does not, in and of itself,

establish actual or constructive notice." Prioleau v. Ky. Fried Chicken, Inc., 434

N.J. Super. 558, 571 (App. Div. 2014) (quoting Arroyo v. Durling Realty, LLC,

433 N.J. Super. 238, 243 (App. Div. 2013)), aff'd as modified, 223 N.J. 245

(2015). Instead, "[a] defendant has constructive notice when the condition

                                                                         A-3095-18T1
                                       15
existed 'for such a length of time as reasonably to have resulted in knowledge

and correction had the defendant been reasonably diligent.'"           Troupe v.

Burlington Coat Factory Warehouse Corp., 443 N.J. Super. 596, 602 (App. Div.

2016) (quoting Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507, 510

(App. Div. 1957)). The Troupe court noted that constructive notice can be

proven by way of circumstantial evidence. Ibid. The absence of actual or

constructive notice of the dangerous condition is generally fatal to a plaintiff's

claim of premises liability. Arroyo, 433 N.J. Super. at 243.

      Plaintiff relies on Smith v. First National Stores, Inc., 94 N.J. Super. 462

(App. Div. 1967) in support of her contention that the alleged dangerous

condition was attributable to the construction of the sidewalk at an elevated

level. In Smith, the plaintiff used the defendant store's restroom; upon leaving,

he slipped and fell down a flight of stairs due to sawdust tracked by the store's

employees. Id. at 464-65. The court found "[i]t was circumstantially inferable

that the presence of the sawdust on the stairway was substantially attributable to

such use and, therefore, that any danger which may have inhered in the tracking

of greasy sawdust . . . was created by defendant's employees." Id. at 465. Under

those conditions, the court concluded "[n]otice, either actual or constructive, is




                                                                         A-3095-18T1
                                       16
not required where a defendant through its agents and employees creates a

dangerous condition." Id. at 466.

      Here, plaintiff argues United created the dangerous condition by not

putting up fencing around the Wilentz Elementary parking lot that would direct

the public to only use the sidewalk. The trial court rejected this theory of

liability. We concur.

      United was issued a permit by the City to use Wilentz Field and the

Board's property for the three-day Festival. It did not construct or modify the

concrete walkway. The permit did not authorize United to modify the walkway

or the surrounding grass field.

      The concrete walkway where plaintiff fell is located on the Wilentz

Elementary School yard. While the record does not disclose when the walkway

was constructed, it clearly existed before the Festival and was presumably used

by students and persons attending school events. The record discloses no prior

accidents injuring students or other individuals using or crossing the walkway.

Indeed, plaintiff and her stepdaughter had crossed the walkway on the way to

the portable toilets without incident moments before the accident.        Of the

thousands who attended the Festival, there is no evidence that any other attendee

tripped on the walkway. Under these circumstances, United was not under a

                                                                        A-3095-18T1
                                      17
duty to erect temporary fencing to prevent Festival attendees from crossing the

sidewalk where plaintiff fell.

      We discern no basis to hold United liable for plaintiff's injuries under

these circumstances. Accordingly, summary judgment was properly granted to

United.

                                        IV.

      Plaintiff's claim against the Board is governed by the TCA. Under the

TCA, "immunity from tort liability is the general rule [for a public entity] and

liability is the exception." Polzo v. Cty. of Essex (Polzo I), 196 N.J. 569, 578

(2008) (quoting Coyne v. State Dep't of Transp., 182 N.J. 481, 488 (2005)); see

also N.J.S.A. 59:1-2 (declaring "the public policy of this State [is] that public

entities shall only be liable for their negligence within the limitations of this act

and in accordance with the fair and uniform principles established herein") .

      Plaintiff alleges the Board is liable for her injuries under N.J.S.A. 59:4-

2(b). To sustain her claim, plaintiff must show:

             (1) that the property was in a dangerous condition at the
             time of the accident, (2) that there was proximate cause
             between the injury and dangerous condition, (3) that the
             dangerous condition created a reasonably foreseeable
             risk of the kind of injury that was incurred and (4) that
             the public entity had notice in sufficient time to protect
             against the condition or that the condition had been

                                                                            A-3095-18T1
                                        18
            created by an act or omission of a public employee
            acting within the scope of his employment.

                  However, even if a plaintiff were to establish
            these four factors, [s]he could not prevail if the action
            the public entity took or failed to take to protect against
            the condition was not palpably unreasonable.

            [Brown v. Brown, 86 N.J. 565, 575 (1981) (interpreting
            liability under N.J.S.A. 59:4-2(b)).]

      In order to be liable, "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).    Actual notice and constructive notice are defined by

N.J.S.A. 59:4-3, which provides:

            a. A public entity shall be deemed to have actual notice
            of a dangerous condition . . . if it had actual knowledge
            of the existence of the condition and knew or should
            have known of its dangerous character.

            b. A public entity shall be deemed to have constructive
            notice of a dangerous condition . . . 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 and its dangerous
            character.

      "Whether a public entity is on actual or constructive notice of a dangerous

condition is measured by the standards set forth in N.J.S.A. 59:4-3(a) and (b),

                                                                          A-3095-18T1
                                       19
not by whether 'a routine inspection program' by the [public entity] . . . would

have discovered the condition." Polzo v. Cty. of Essex (Polzo II), 209 N.J. 51,

68 (2012).

      The motion court found "the facts do not suggest that the Board" had

actual or constructive notice of the alleged dangerous condition before the

accident. On that basis, the court granted summary judgment to the Board. We

concur that there is no evidence in the motion record that the Board had actual

notice of the alleged dangerous condition.

      Plaintiff argues that there were material facts in issue regarding whether

the raised surface of the walkway was a dangerous condition and whether the

Board had constructive notice of the alleged dangerous condition. We agree.

      We have previously held in a non-TCA case, involving a trip and fall

while attending a garage sale on private property, that "the condition of the

overgrown lawn and obstructed drop-off at the point of [the plaintiff's] fall was

defective and created an unreasonable risk of harm was an issue of material fact

for the jury." Filipowicz v. Diletto, 350 N.J. Super. 552, 561 (App. Div. 2002).

In Atalese v. Long Beach Township., we held that a 0.75-inch difference in

pavement elevation in a designated pedestrian-bicycle lane created by municipal

employees "could be accepted by a jury as creating a substantial risk of injury

                                                                        A-3095-18T1
                                      20
and hence a dangerous condition under the [TCA]." 365 N.J. Super. 1, 6 (App.

Div. 2003).

      We conclude there are material facts at issue with respect to whether the

raised sidewalk was a dangerous condition.           Plaintiff and other Festival

participants used the impromptu path to reach the portable toilets. Further,

plaintiff's fall occurred at night in an area that was not directly illuminated by

the Festival's light towers, although there may have been some ambient light.

Accordingly, a reasonable jury could also conclude it was reasonably

foreseeable that pedestrians would walk across the lawn and cross walkway at

night, given the location of the Festival and portable toilets, the Festival's hours,

and the number of attendees.4

      We also conclude there are material facts at issue regarding whether the

Board had constructive notice of the alleged dangerous condition. There is no

indication in the record or allegation that the concrete walkway was new. Nor

is there any evidence or allegation that an activity performed shortly before the




4
   Notably, the Board does not claim design immunity under N.J.S.A. 59:4 -6,
which provides that a public entity is not liable "for an injury caused by the plan
or design of public property, . . . where such plan or design has been approved
in advance of the construction or improvement by . . . the governing body of the
public entity."
                                                                            A-3095-18T1
                                        21
accident caused the elevation discrepancy. Thus, a reasonable jury could find

that the height discrepancy between the walkway surface and the adjacent lawn

would have been apparent through inspection during daylight hours.

      In addition, the evidence that plaintiff was looking ahead rather than down

when she crossed the sidewalk goes to comparative fault, another jury issue.

See Filipowicz, 350 N.J. Super. at 561 (noting determination of the comparative

fault of the parties is a jury function (citing Berger v. Shapiro, 30 N.J. 89, 102

(1959)).

      These conclusions do not end our analysis, however. 5 Plaintiff must also

establish a prima facie case that the action or inaction of the public entity was

"palpably unreasonable." Coyne, 182 N.J. at 493; Maslo v. City of Jersey City,

346 N.J. Super. 346, 349 (App. Div. 2002).

      The term palpably unreasonable "implies behavior that is patently

unacceptable under any given circumstance." Ogborne v. Mercer Cemetery

Corp., 197 N.J. 448, 459 (2009) (quoting Kolitch v. Lindedahl, 100 N.J. 485,



5
  "[W]e review orders, not opinions." Tatham v. Tatham, 429 N.J. Super. 502,
517 n.13 (App. Div. 2013) (citing Do-Wop Corp. v. City of Rahway, 168 N.J.
191, 199 (2001)). An appellate court is "free to affirm the trial court's decision
on grounds different from those relied upon by the trial court." State v. Heisler,
422 N.J. Super. 399, 416 (App. Div. 2011).


                                                                         A-3095-18T1
                                       22
493 (1985)). "[F]or a public entity to have acted or failed to act in a manner that

is palpably unreasonable, it must be manifest and obvious that no prudent person

would approve of [the] course of action or inaction." Ibid. (quoting Kolitch, 100

N.J. at 493)..

      "Although ordinarily the question of whether a public entity acted in a

palpably unreasonable manner is a matter for the jury, in appropriate

circumstances, the issue is ripe for a court to decide on summary judgment."

Polzo II, 209 N.J. at 75 n.12 (citations omitted). A court may assess whether a

claim of palpable unreasonableness "can reasonably be made under the evidence

presented." Maslo, 346 N.J. Super. at 351 (quoting Black v. Borough of Atl.

Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)). Accordingly, "the

question of palpable unreasonableness may be decided by the court as a matter

of law in appropriate cases." Id. at 350 (citing Garrison v. Twp. of Middletown,

154 N.J. 282, 311 (1998) (Stein, J., concurring)).

      We contrast the facts in this matter to cases in which a trip and fall are

caused by a pothole, spalling due to weathering, cracked concrete, a raised

section of concrete caused by a tree root, or modifications by public employees

to existing pavement. The record contains no evidence that plaintiff's trip and

fall were caused by failure to maintain the concrete walkway. Nor is there any

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evidence that the Board received prior complaints or reports of injuries about

the raised level of the walkway. Moreover, the standards set forth in ASTM

document F 1637-09, which formed the basis for the opinions expressed by

plaintiff's expert, do not apply here because they were not adopted by the City.

      We conclude that even if plaintiff could show that the Board was on

constructive notice that the raised walkway surface was a dangerous condition,

a reasonable jury could not find that, under the circumstances here, the failure

to take action to protect against the condition was palpably unreasonable.

Therefore, plaintiff is unable to meet her burden of proof. See Garrison, 154

N.J. at 311 (Stein, J., concurring) (concluding that a township's failure to repair

a 1.5-inch declivity in a parking lot absent prior complaints or reports, would be

insufficient to permit "reasonable jurors to conclude that the '[t]ownship's

inaction . . . was patently unacceptable in a way so manifest and obvious that no

prudent person would approve of its inaction."). Thus, summary judgment was

properly granted. Had the Board received prior complaints or reports of injuries

regarding the alleged dangerous condition, we might view the issue differently.

See ibid.; see also Polzo II, 209 N.J. at 76-77 (quoting Justice Stein's

concurrence in Garrison with approval).

      Affirmed.

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