                                NOT FOR PUBLICATION WITHOUT THE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-4405-17T3

J.S.,

          Plaintiff-Appellant,

v.

CITY OF RAHWAY,

     Defendant-Respondent.
________________________________

                    Submitted February 26, 2019 – Decided April 11, 2019

                    Before Judges Gilson and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Docket No. L-0851-16.

                    Nemergut & Duff, attorneys for appellant (Paul J.
                    Nemergut III, of counsel and on the brief; Jeffrey Zajac,
                    on the briefs).

                    Rainone Coughlin Minchello, LLC, attorneys for
                    respondent (Brian P. Trelease, of counsel and on the
                    brief; Conor J. Hennessey, on the brief).

PER CURIAM
        This appeal arises from a trip and fall on public property. Plaintiff J.S. 1

appeals from a May 1, 2018 order granting summary judgment to defendant,

City of Rahway (City). The trial court held that the City was not liable under

the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, because plaintiff had failed

to present a prima facie claim for liability based on a dangerous condition of the

property, and the City had discretionary immunity. We agree and affirm.

                                           I.

        We take the facts from the summary judgment record and view them in

the light most favorable to plaintiff, the non-moving party.         See Davis v.

Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014) (first quoting R. 4:46-

2(c); then quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995)). In the early morning hours of July 7, 2014, plaintiff was jogging

through the City. At approximately 5:45 a.m., he was running on the sidewalk

on East Milton Avenue just in front of City Hall. As he jogged along, his left

foot hit a raised portion of the sidewalk causing him to trip and fall. As a result

of the fall, plaintiff injured his face, teeth, hands, and knees.

        It was undisputed that it was light enough for plaintiff to see, since the

sun had risen at approximately 5 a.m. Plaintiff testified that he did not see the


1
    We use initials to protect plaintiff's privacy interests.
                                                                            A-4405-17T3
                                           2
raised portion of the sidewalk prior to striking it with his foot. Plaintiff also

testified that he had run that same route for the last two weeks prior to his fall.

      During discovery, plaintiff produced an expert report concerning his fall.

Plaintiff's expert had visited the site of the accident and described the area where

plaintiff fell as a combination of concrete slabs and brick pavers, with the pavers

spaced approximately eleven to thirteen feet apart. The expert described the

brick pavers where plaintiff fell as "severely displaced and raised [one and one-

quarter] inches above the adjacent concrete[.]"

      Plaintiff's theory was that the City had notice of the raised sidewalk

because twenty months prior to his fall, in November 2012, a woman had tripped

on another portion of sidewalk on the Main Street side of City Hall. That woman

filed a personal injury lawsuit against the City, and during that litigation,

numerous City employees became aware of the woman's accident on the Main

Street sidewalk. An expert report prepared in that case opined that that woman's

fall was caused by a one-and-one-half-inch height differential between two

concrete slabs. Plaintiff's fall on the sidewalk on East Milton Avenue occurred

approximately 130 feet from where the woman fell on the Main Street sidewalk.

      In March 2016, plaintiff filed a complaint against the City alleging that it

had negligently maintained its property, that is, the sidewalk, which caused


                                                                            A-4405-17T3
                                         3
plaintiff to fall and injure himself. The City filed an answer and, among other

defenses, asserted that the TCA barred plaintiff's claims.

      The parties then engaged in and completed discovery. Following the close

of discovery, the City filed a motion for summary judgment. The trial court

heard oral arguments. Thereafter, on May 1, 2018, the trial court entered an

order granting summary judgment to the City. The court supported that order

with a written opinion.

      In its decision, the trial court held that the City was not liable because

plaintiff had not presented any evidence that the City had actual or constructive

notice of the alleged dangerous condition that caused plaintiff to trip and fall.

The court also found that plaintiff had presented no evidence that the City's acts

or omissions were palpably unreasonable. In addition, the trial court concluded

that the City was entitled to discretionary immunity under the TCA in

accordance with N.J.S.A. 59:2-3(d) because the decision to repair certain

sidewalks was discretionary and required the City to consider competing

demands in the face of limited resources.

                                       II.

      Plaintiff appeals and makes two arguments. First, he contends that he did

present a prima facie case of liability under the TCA. In that regard, he asserts


                                                                          A-4405-17T3
                                        4
that the City was on notice because of the prior lawsuit by the woman who had

tripped and fallen in 2012. He also contends that he satisfied the palpably

unreasonable requirement. Second, plaintiff argues that the City was not entitled

to discretionary immunity under N.J.S.A. 59:2-3.

      Plaintiff made these same arguments before the trial court, and Judge

Mark P. Ciarrocca analyzed and correctly rejected them in a May 1, 2018 written

opinion. We affirm substantially for the reasons explained in Judge Ciarrocca's

thorough opinion.

      In reviewing an order granting summary judgment, our standard of review

is de novo and we apply the same standard that governed the trial court's ruling.

Conley v. Guerrero, 228 N.J. 339, 346 (2017) (citing Templo Fuente De Vida

Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016)). Under that

standard, summary judgment will be granted if, viewing the evidence in the light

most favorable to the non-moving party, "there is no genuine issue of material

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

Ibid. (quoting Templo, 224 N.J. at 199); accord R. 4:46-2(c).

      Here, the City is a public entity that is liable for its negligence only to the

extent permitted by the TCA. N.J.S.A. 59:1-2 to -3; N.J.S.A. 59:2-1(a); see

Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 452 (2009) (applying the TCA


                                                                             A-4405-17T3
                                         5
to claims brought against the City of Trenton). The requirements for holding a

public entity liable for the dangerous conditions of public property a re set forth

in N.J.S.A. 59:4-2. Under that provision, a plaintiff must demonstrate that (1) a

dangerous condition existed on the property at the time of the injury; (2) the

dangerous condition proximately caused the injury; (3) the dangerous condition

created a foreseeable risk of the kind of injury that occurred; (4) the public entity

had actual or constructive notice of the condition in sufficient time prior to the

injury to correct the dangerous condition; and (5) the action or inaction taken by

the public entity to protect against the dangerous condition was palpably

unreasonable. See N.J.S.A. 59:4-2; Polzo v. Cty. of Essex, 209 N.J. 51, 65-66

(2012) (first quoting N.J.S.A. 59:4-2; then citing Vincitore v. N.J. Sports &

Exposition Auth., 169 N.J. 119, 124-25 (2001)); Muhammad v. N.J. Transit, 176

N.J. 185, 194 (2003) (quoting N.J.S.A. 59:4-2).

      Here, Judge Ciarrocca found that plaintiff could not satisfy the fourth or

fifth criteria because there was no evidence that the City had actual or

constructive notice of the alleged defective condition of the sidewalk , and there

was no showing that a failure to act or not act with regard to the sidewalk was

palpably unreasonable.      A public entity has actual notice of a dangerous

condition if it has "actual knowledge of the existence of the condition and knew


                                                                             A-4405-17T3
                                         6
or should have known of its dangerous character." N.J.S.A. 59:4-3(a). A public

entity has constructive notice of a dangerous condition "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." N.J.S.A. 59:4-3(b);

accord Patrick ex rel. Lint v. City of Elizabeth, 449 N.J. Super. 565, 572-73

(App. Div. 2017) (quoting N.J.S.A. 59:4-3(b)).

      Plaintiff argues the City had notice of the raised bricks on the East Milton

Avenue sidewalk based on its actual knowledge that a woman fell on the

sidewalk in 2012. Even granting all favorable inferences to plaintiff, he has not

shown that the City had actual or constructive notice of the raised bricks on the

East Milton Avenue sidewalk. The woman who fell in 2012 fell on the sidewalk

on Main Street and plaintiff's fall occurred at least 130 feet away, on East Milton

Avenue. Moreover, the woman who fell in 2012 tripped on elevated slabs of

concrete, while plaintiff alleges that his fall was caused by raised paver bricks.

      Plaintiff has also not demonstrated that the City's action or inaction to

protect against the alleged dangerous condition was palpably unreasonable.

"[P]alpably unreasonable implies behavior that is patently unacceptable under

any circumstances and that . . . must be manifest and obvious that no prudent


                                                                           A-4405-17T3
                                        7
person would approve of its course of action or inaction." Patrick ex rel. Lint,

449 N.J. Super. at 573 (alterations in original) (quoting Holloway v. State, 125

N.J. 386, 403-04 (1991)). The question of palpable unreasonableness "may be

decided by the court as a matter of law in appropriate cases." Maslo v. City of

Jersey City, 346 N.J. Super. 346, 350 (App. Div. 2002) (citing Garrison v. Twp.

of Middletown, 154 N.J. 282, 311 (1998)); see also Muhammad, 176 N.J. at 200.

        Here, plaintiff argues that it was palpably unreasonable for the City not to

fix the raised brick pavers on the East Milton Avenue sidewalk based on its

knowledge that a woman had fallen in 2012 on the Main Street sidewalk.

Alternatively, plaintiff argues that the question of whether the City's inaction

was palpably unreasonable is a question of fact that should be submitted to the

jury.

        We agree with Judge Ciarrocca, who concluded that no reasonable jury

could find that the City's failure to repair the raised bricks at issue here was

palpably unreasonable. The City did not have actual or constructive notice that

the bricks were elevated. Therefore, the City's failure to correct that condition

without prior notice was not palpably unreasonable, and does not require a jury

determination. See Maslo, 346 N.J. Super. at 351.




                                                                            A-4405-17T3
                                          8
      We also agree with Judge Ciarrocca's alternative ruling that the City had

discretionary immunity under the TCA.            N.J.S.A. 59:2-3(d) establishes

immunity for discretionary determinations concerning the use of public

resources. In relevant part, the statute provides:

            A public entity is not liable for the exercise of
            discretion when, in the face of competing demands, it
            determines whether and how to utilize or apply existing
            resources, including those allocated for equipment,
            facilities and personnel unless a court concludes that
            the determination of the public entity was palpably
            unreasonable.

            [N.J.S.A. 59:2-3(d).]

Accordingly, "operational governmental decisions to devote existing resources

to one activity at the expense of another are immune unless palpably

unreasonable." Lopez v. City of Elizabeth, 245 N.J. Super. 153, 164 (App. Div.

1991) (citing N.J.S.A. 59:2-3(d)).

      To qualify for the immunity, a public entity must demonstrate that (1)

competing demands existed when the governmental decision was made, (2) the

discretionary decision allocated existing resources between competing demands,

and (3) the allocated decision was a proximate cause of the resulting condition.

Id. at 156 (citing Fox v. Twp. of Parsippany-Troy Hills, 199 N.J. Super. 82, 90

(App. Div. 1985)).


                                                                        A-4405-17T3
                                        9
      Here, the City was entitled to summary judgment on the issue of

discretionary immunity, as the record on summary judgment established that the

decision of the City to withhold resources from less severely damaged sidewalks

in favor of repairing more severely damaged sidewalks was not palpably

unreasonable. Moreover, the resource-allocation decision directly affected the

East Milton Avenue sidewalk because the City did not know the sidewalk had

been damaged. In his written decision, Judge Ciarrocca provided a thorough

explanation of the undisputed material facts establishing the City's discretionary

immunity. Those facts were supported by undisputed evidence in the record.

      Affirmed.




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                                       10
