                                NOT FOR PUBLICATION WITHOUT THE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,

v.

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).

       As we have elsewhere explained, "the phrase 'used with due care' does

not refer to the actual activities of the parties," but to "the condition of the

property itself." Daniel v. State, Dep't of Transp., 239 N.J. Super. 563, 586

                                                                         A-4383-17T1
                                       6
(App. Div. 1990). "In deciding whether a dangerous condition exists," the

question is "whether the property creates a substantial risk of injury 'to persons

generally, who would use the property with due care in a foreseeable manner.'"

Id. at 587 (quoting Holmes v. Oakland City, 67 Cal. Rptr. 197, 203 (Ct. App.

1968)). Thus a "plaintiff must show that the condition was one that created a

hazard to a person who foreseeably would use the property . . . with due care."

Ibid.

        Applying that standard makes clear the trial court was correct to find

plaintiff failed to establish the placement of the dolly near the temporary

platform walkway rendered the dolly or the walkway in a dangerous condition

to a person who foreseeably would use the walkway. As plaintiff testified,

there was nothing obscuring his view of either the walkway or the dolly, which

the photographs make clear are different colors with different surface textures.

Plaintiff also acknowledged the walkway was trimmed with yellow and black

warning tape, which he was aware of from having been on site for two weeks.

As he explained, he stepped onto the dolly instead of the walkway because he




                                                                        A-4383-17T1
                                       7
was looking forward to where he was going and, using his peripheral vision,

mistook the dolly as part of the walkway. 2

      Because "it would be folly to impose a burden on a public entity to

protect individuals from every conceivable risk attendant to the use of its

property," the Legislature has limited liability from a dangerous condition to

those instances where "the property poses a substantial risk of injury when it is

used in a reasonably prudent manner in a foreseeable way." Daniel, 239 N.J.

Super. at 587. Because the wheeled "wooden dolly is light brown or beige in

color as opposed to the surface of the raised walkway which was black and had

yellow and black warning tape on [it]," even placed next to the walkway it was

only potentially dangerous, as the trial judge found, to those who did not make

observations. We agree with Judge Galis-Menendez that neither the dolly nor

the walkway posed a substantial risk of injury to those persons using the

walkway in a reasonably prudent manner in a foreseeable way.


2
  We note the obvious nature of the wheeled dolly and the stationary walkway
would make it difficult for plaintiff to recover against an owner without
statutory immunities, that is, had he been a guest on private prope rty when the
injury occurred. See Tighe v. Peterson, 356 N.J. Super. 322, 326 (App. Div.)
("Where a guest is aware of the dangerous condition or by a reasonable use of
his [faculties] would observe it, the host is not liable.") (quotation marks
omitted) (quoting Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.
1997)), aff'd o.b., 175 N.J. 240 (2002).


                                                                        A-4383-17T1
                                       8
      Even were plaintiff able to somehow establish that placement of the

dolly near the raised walkway constituted a dangerous condition, he provided

no proof the State put the dolly there, was made aware of its placement or that

placement of the dolly or failure to move it was palpably unreasonable, that is

"manifest and obvious that no prudent person would approve of its course of

action or inaction," Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (citation

omitted), and certainly none sufficient to require submission to a jury, see

Brill, 142 N.J. at 536. As the motion for summary judgment was heard three

days before the end of the extended discovery period, and the State's motion to

further extend discovery was denied by the presiding judge of the Civil

Division, we reject plaintiff's argument that the motion could in any way be

characterized as premature on any issue, including notice.

      Affirmed.




                                                                      A-4383-17T1
                                      9
