                        NOT FOR PUBLICATION WITHOUT THE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-4344-14T3


LEONIDES STERGIOS and
PETER STERGIOS, her husband,

              Plaintiffs-Appellants,

v.

NEW JERSEY TRANSIT CORP., NEW
JERSEY TRANSIT BUS OPERATIONS, INC.,
and PAUL LOWNEY,

              Defendants,

and

HARRINGTON PARK BOROUGH,

          Defendant-Respondent.
________________________________________

              Submitted June 28, 2016 – Decided September 5, 2017

              Before Judges Espinosa and Grall.

              On appeal from the Superior Court of New
              Jersey, Law Division, Bergen County, Docket
              No. L-5478-13.

              McCarter & English, LLP, attorneys for
              appellants (Edward J. Fanning, Jr., of
              counsel and on the brief; Desiree Grace, on
              the brief).
         Keenan & Doris, LLC, attorneys for
         respondent (Ian C. Doris, of counsel;
         Bernadette M. Peslak, on the brief).

PER CURIAM

    Plaintiff Leonides Stergios was hit by a bus.    She and her

husband Peter (collectively plaintiffs) filed a civil action

naming the New Jersey Transit Corp., New Jersey Transit Bus

Operations, Inc. and the driver, Paul Lowney.    Invoking the New

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

plaintiffs also sued the Borough of Harrington Park (Borough).

As to the Borough, plaintiffs alleged the dangerous condition of

the Borough's property, as defined in N.J.S.A. 59:4-1 to -3,

contributed to the accident.

    Plaintiffs settled their claims against the driver and New

Jersey Transit, and the trial court dismissed them with

prejudice.   Plaintiffs appeal a grant of the Borough's motion

for summary judgment, and the Borough does not contend it was

entitled to immunity pursuant to N.J.S.A. 59:4-6.   Accordingly,

the question is whether the evidence submitted on the motion,

viewed in the light most favorable to plaintiffs, establishes

the Borough's entitlement to judgment as a matter of law on

plaintiff's claim.   R. 4:46-2(c); Bhagat v. Bhagat, 217 N.J. 22,

38 (2014).   The trial court was required to apply that standard,



                                2                           A-4344-14T3
and this court must apply it on appeal.   Steinberg v. Sahara

Sam's Oasis, LLC, 226 N.J. 344, 349 (2016).

    The evidence, viewed favorably to plaintiffs, can be

summarized as follows.   Shortly before 5:30 p.m. on August 10,

2011, plaintiff Leonides Stergios and the six to eight other

passengers remaining on the commuter bus disembarked at a

sheltered bus stop.   The sheltered bus stop is situated in a

park owned by the Borough, which is adjacent to the Garden State

Parkway.   Employees of the Borough's Department of Public Works

erected the shelter behind a curb they also installed.

    The shelter is at the curb on a one way street and on

Borough property.   It is not an official stop.   Nevertheless,

the driver regularly drove this route twice a day five days a

week and generally stopped there as a courtesy, as did other

drivers.   Travelling in the proper direction, the driver entered

the narrow roadway leading to the stop and stopped with the bus

faced to continue down the street so he could return the bus to

the garage.

    There were no sidewalks leading from the shelter to the

nearby parking lot farther down the street where plaintiff had

left her car.   She walked in the street beside the curb to get

to her car, because there was a hedgerow sufficiently proximate

to the curb to preclude her walking on the ground beyond the

                                3                           A-4344-14T3
curb.   The lay-out of the street, its narrow width, the curb and

the proximity of the hedgerow is depicted in photographs

submitted on the motion.

    As the driver moved on he did not notice plaintiff, hit her

and drove one wheel over her leg.   The seriousness and

permanency of plaintiff's multiple and complex injuries was

undisputed.   There was no evidence the Borough made any effort

to deter New Jersey Transit from allowing its drivers to stop at

the shelter erected by its employees.

    The TCA defines the cause of action.    N.J.S.A. 59:4.2

states the essential elements 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.

                                4                          A-4344-14T3
           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 protect
           against the condition or the failure to take
           such action was not palpably unreasonable.

    A "'dangerous condition' is defined in the Act 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.'"    Ogborne v.

Mercer Cemetery Corp., 197 N.J. 448, 458 (2009) (emphasis added)

(quoting N.J.S.A. 59:4-1(a)).    A "substantial risk" is "one that

is not minor, trivial or insignificant."    Kolitch v. Lindedahl,

100 N.J. 485, 493 (1985) (quoting Polyard v. Terry, 160 N.J.

Super. 497, 509 (App. Div. 1978), aff'd o.b., 79 N.J. 547)

(1979)).

    Given the location of a parking lot beyond the bus stop, a

jury could reasonably conclude there was a substantial risk that

a commuter returning to a car from the bus stop and having no

other route but the roadway would be struck by a vehicle from

behind.    A jury could also reasonably infer the Borough had

actual notice of the relative locations of the shelter stop,

curb and parking lot, the hedgerow and the absence of a

guardrail and sidewalks.   Indeed, a reasonable jury could infer



                                 5                         A-4344-14T3
the Borough exacerbated the risk by erecting this shelter at the

curb.

    The Borough argues that even if it had actual or

constructive notice, the evidence would not permit a jury to

find its failure to correct the condition was "palpably

unreasonable."   N.J.S.A. 59:4.2.   Conduct is palpably

unreasonable when "it [would] be manifest and obvious that no

prudent person would approve of [the public entity's] course of

action or inaction."   Kolitch, supra, 100 N.J. at 485 (quoting

Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1977),

rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978),

aff'd o.b., 79 N.J. 547 (1979)).    In this case, a jury could

find that no prudent person would approve of the Borough's

inaction despite multiple options for diminishing the risk

enhanced by the shelter's location.   The apparent options

include installation of sidewalks or guardrails, removal of

hedges to provide a pathway other than the narrow roadway,

removal of the shelter it erected or erecting a sign barring bus

drivers' and commuters' use of the shelter at the curb as a

courtesy bus stop.

    Focusing on plaintiff's and the bus driver's patently

negligent conduct, the Borough contends that no reasonable jury

could find the condition of its property was a proximate cause

                                6                            A-4344-14T3
of this accident.   But it is well-settled that "[w]ith respect

to concurrent proximate causation, a tortfeasor will be held

answerable if its 'negligent conduct was a substantial factor in

bringing about the injuries,' even where there are 'other

intervening causes which were foreseeable or were normal

incidents of the risk created.'"    Brown v. United States Stove

Co., 98 N.J. 155, 171 (1984) (quoting Rappaport v. Nichols, 31

N.J. 188, 203 (1959)).   A reasonable jury applying that measure

on this evidence could find in plaintiff's favor.

    For all of the foregoing reasons, we conclude summary

judgment was improvidently granted, vacate the judgment in the

Borough's favor and remand for further proceedings.

    Reversed and remanded for further proceedings.    We do not

retain jurisdiction.




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