Opinion
DOCKET NO. A-0418-10T4
05-29-2013
BONG H. LEE and JOO O. LEE, Individually and as Parents and Natural Guardians of JEFFREY LEE, a Minor, Plaintiffs-Appellants, v. ANTHONY J. GILBERTI, SR.; PATRICIA GILBERTI; ANTHONY J. GILBERTI, JR.; GINA N. KARAMANOOGIAN; MURRAY KARAMANOOGIAN; COUNTY OF CAMDEN; JAMES R. KELLEY; FIVE COUNTY CARTING, INC.; PAUL A. LOMBARDI, President of Five County Carting, Inc.; HILLVIEW RETAIL CENTER; and CHERRY HILL ASSOCIATES, L.P., Defendants, and TOWNSHIP OF CHERRY HILL; MAYOR BERNARD A. PLATT; COUNCIL PRESIDENT DAVID FLEISHER; COUNCIL VICE PRESIDENT JOYCE ALEXANDER WALKER; COUNCIL MEMBER N. JOHN AMATO; COUNCIL MEMBER DR. BRYEN BARBELL; COUNCIL MEMBER FRANK FALCONE; COUNCIL MEMBER MARLYN KALITAN; COUNCIL MEMBER PAMELA ROSEN LAMPITT; STATE OF NEW JERSEY; STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION; STATE TRANSPORTATION COMMISSIONER JACK LETTIERE; PENNSYLVANIA REAL ESTATE INVESTMENT TRUST; CHERRY HILL CENTER, INC.; CHERRY HILL MALL; THE RUBIN ORGANIZATION, INC.; HILLVIEW SHOPPING CENTER, LLC; LEND LEASE REAL ESTATE; HILLVIEW CH, LLC (d/b/a Hillview Shopping Center); KIMCO REALTY CORP.; LOEWS CINEPLEX ENTERTAINMENT CORP.; LOEWS MOVIE THEATER; CHERRY HILL REDEVELOPMENT PARTNERS, LLC; KOHL'S DEPARTMENT STORES, INC.; and KOHL'S CORPORATION, Defendants-Respondents.
Stephen W. Bruccoleri argued the cause for appellants (Law Offices of Stephen W. Bruccoleri, attorneys; Mr. Bruccoleri, on the briefs). Gregory A. Spellmeyer, Deputy Attorney General, argued the cause for respondents State of New Jersey, New Jersey Department of Transportation, and Jack Lettiere (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Spellmeyer, on the brief). Brian H. Leinhauser argued the cause for respondents Township of Cherry Hill, and the Mayor and Council of Cherry Hill Township (Law Offices of Lamb McErlane, PC, attorneys; Mr. Leinhauser, on the brief). F. Herbert Owens, III, argued the cause for respondents Pennsylvania Real Estate Investment Trust; Cherry Hill Center, Inc.; Cherry Hill Mall and The Rubin Organization, Inc. (Sweeney & Sheehan, P.C., attorneys; Mr. Owens, on the brief). Thomas M. Madden argued the cause for respondents Lend Lease Real Estate and Hillview Shopping Center, LLC (Hack, Piro, O'Day, Merklinger, Wallace and McKenna, attorneys; Mr. Madden, on the brief). Suzanne M. Marasco argued the cause for respondents Hillview CH, LLC and Kimco Realty Corp., (Hill Wallack, L.L.P., attorneys; Ms. Marasco, of counsel; Cherylee O. Melcher, on the brief). Michael F. Dolan argued the cause for respondents Loews West Long Branch Cinemas, Inc., Loews Cineplex Entertainment Corp., and Loews Movie Theater (Hoagland, Longo, Moran, Dunst and Doukas, LLP, attorneys; Richard J. Mirra, of counsel and on the brief). Robert G. Devine argued the cause for respondent Cherry Hill Redevelopment Partners, LLC (White and Williams, LLP, attorneys; Mr. Devine, of counsel and on the brief; Christopher P. Morgan, on the brief). Stacy L. Moore, Jr., argued the cause for respondent Kohl's Department Stores, Inc., and Kohl's Corporation (Parker McCay, P.A., attorneys; J. Brooks DiDonato, of counsel; Mr. Moore, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Nugent and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3997-06.
Stephen W. Bruccoleri argued the cause for appellants (Law Offices of Stephen W. Bruccoleri, attorneys; Mr. Bruccoleri, on the briefs).
Gregory A. Spellmeyer, Deputy Attorney General, argued the cause for respondents State of New Jersey, New Jersey Department of Transportation, and Jack Lettiere (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Spellmeyer, on the brief).
Brian H. Leinhauser argued the cause for respondents Township of Cherry Hill, and the Mayor and Council of Cherry Hill Township (Law Offices of Lamb McErlane, PC, attorneys; Mr. Leinhauser, on the brief).
F. Herbert Owens, III, argued the cause for respondents Pennsylvania Real Estate Investment Trust; Cherry Hill Center, Inc.; Cherry Hill Mall and The Rubin Organization, Inc. (Sweeney & Sheehan, P.C., attorneys; Mr. Owens, on the brief).
Thomas M. Madden argued the cause for respondents Lend Lease Real Estate and Hillview Shopping Center, LLC (Hack, Piro, O'Day, Merklinger, Wallace and McKenna, attorneys; Mr. Madden, on the brief).
Suzanne M. Marasco argued the cause for respondents Hillview CH, LLC and Kimco Realty Corp., (Hill Wallack, L.L.P., attorneys; Ms. Marasco, of counsel; Cherylee O. Melcher, on the brief).
Michael F. Dolan argued the cause for respondents Loews West Long Branch Cinemas, Inc., Loews Cineplex Entertainment Corp., and Loews Movie Theater (Hoagland, Longo, Moran, Dunst and Doukas, LLP, attorneys; Richard J. Mirra, of counsel and on the brief).
Robert G. Devine argued the cause for respondent Cherry Hill Redevelopment Partners, LLC (White and Williams, LLP, attorneys; Mr. Devine, of counsel and on the brief; Christopher P. Morgan, on the brief).
Stacy L. Moore, Jr., argued the cause for respondent Kohl's Department Stores, Inc., and Kohl's Corporation (Parker McCay, P.A., attorneys; J. Brooks DiDonato, of counsel; Mr. Moore, on the brief). PER CURIAM
There were no crosswalks or traffic lights at the location of the heavily traveled, barrier-divided, six-lane State highway where plaintiff, Jeffrey Lee, a pedestrian, attempted to cross late on the night of May 7, 2004. Plaintiff was struck by a car and severely injured. Seeking compensation for his injuries, he filed a lawsuit against, among others, the State; Camden County; the Township of Cherry Hill, the municipality where the accident occurred; entities that owned land along both sides of the highway; and businesses that operated along both sides of the highway. He alleged in the lawsuit that the public entities maintained a dangerous condition of property after a pedestrian walkway over the highway, Route 38, was destroyed by a truck in 1999; and that the adjacent landowners and business owners, who did not demolish steps that led from the bottom of the former pedestrian bridge to their property, maintained an "attractive-like" nuisance, which enticed pedestrians to cross the highway at the location of the steps.
Plaintiff's parents, Bong H. Lee and Joo O. Lee, commenced the lawsuit individually and as parents and natural guardians of their child. For ease of reference, we will refer to Jeffrey Lee as the plaintiff.
The Law Division granted the various summary judgment motions made by defendants and dismissed plaintiff's complaint with prejudice. We agree with the Law Division's determination that the highway was not a "dangerous condition" as that term is defined in the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We also agree that the adjacent property owners and business operators breached no duty of care to pedestrians crossing the highway. Accordingly, we affirm.
I.
Plaintiff's accident occurred in the Township of Cherry Hill on Route 38, a highway with a three-foot high medial barrier that separates its three eastbound lanes from its three westbound lanes. The intersecting streets nearest the accident scene are Haddonfield Road, approximately 1,000 feet to the west, and Cherry Hill Mall Drive or Hillside Drive, approximately 1,171 feet to the east.
The Cherry Hill Mall borders the northern side of Route 38. Plaintiff alleged that defendants Pennsylvania Real Estate Investment Trust, Cherry Hill Center, Inc., and Cherry Hill Mall (the Mall defendants) owned the Mall land. A set of steps leading from the northerly side of Route 38 descends into the Cherry Hill Mall parking lot.
Along the southern boundary of Route 38, across the highway from the Cherry Hill Mall, is a lot owned by the Township of Cherry Hill containing a storm water basin and a monument to the former Cherry Hill Inn. Southwest of the storm water basin is a parking lot and a multiplex movie theater operated by defendant Loews West Long Branch Cinemas, Inc. (Loews) on land owned by defendant Cherry Hill Redevelopment Partners, LLC (CHIRP). A sidewalk extends in a northerly direction from the movie theater, along an access road, past the storm water basin, to Route 38. At the point where the sidewalk reaches Route 38, it makes a right angle turn to the east and leads to a set of steps embedded in a grass embankment. The steps provide access to a parking lot in a shopping center (the Hillview Shopping Center).
Plaintiff incorrectly identified in his complaint Loews Cineplex Entertainment Corp. and Loews Movie Theatre as the operators of the movie theatre.
Defendant Kohl's Department Store, Inc. (Kohl's) operated its department store in the Hillview Shopping Center on the lot where the stairs from Route 38 descended. Kohl's was located on a lot owned by defendants Hillview CH, LLC (Hillview CH) and Kimco Realty Corp. (Kimco).
Plaintiff also identified "Kohl's Corporation" as the operator of the department store.
Hillview CH and Kimco purchased the lot from defendant Hillview Shopping Center, LLC, on April 3, 2003. Defendant Lend Lease Real Estate was the managing member of Hillview Shopping Center, LLC.
Plaintiff left Loews, walked along the sidewalk to Route 38 in the vicinity of the embedded stairs, and attempted to cross Route 38 at that point on the night of his accident. There once was a pedestrian bridge at that location.
There is now another pedestrian bridge over Route 38 at the scene of plaintiff's accident. The bridge's history is central to plaintiff's claims. A pedestrian bridge had been built at that location in 1967 for pedestrians walking to and from the Cherry Hill Mall, on the north side of Route 38, and the Cherry Hill Inn and nearby apartment buildings, on the south side of Route 38 where Loews and the Hillview Shopping Center are now located. The State built the bridge because pedestrians were crossing Route 38's traffic lanes and median strip instead of walking to the pedestrian crosswalks at either Haddonfield Road or Cherry Hill Mall Drive.
At some point, the State expanded Route 38 from its original four-lanes and grass median divider. It is not entirely clear from the record when that expansion occurred in relation to the 1967 construction of the pedestrian bridge.
The bridge, which was approximately fourteen feet above the highway, spanned one hundred twenty-four feet and weighed nearly fifty-five tons. The bridge was supported by a concrete abutment on each side of the highway, and each abutment included a set of stairs leading to the bridge. On the north side of Route 38, near the bridge abutment, embedded stairs traversed an embankment and descended into the parking lot of Cherry Hill Mall. On the south side of Route 38, near the bridge abutment, embedded stairs traversed an embankment and descended to Kohl's parking lot in the Hillview Shopping Center. The two sets of embedded stairs leading to the Cherry Hill Mall on the north side, and to the Hillview Shopping Center on the south side, were not built by the State. In 2004, the year of plaintiff's accident, no sidewalks led from the stairs that descended into Kohl's parking lot to the crosswalks at the intersections at Haddonfield Road and Cherry Hill Mall Drive.
On December 14, 1999, a trash truck crashed into the pedestrian bridge, dislodging it from its moorings on the abutments and destroying it. The State removed it, leaving the abutments in place. Four years later, in 2003, the State removed the abutments and the stairs to the bridge. The stairs leading from the street to the Cherry Hill Mall and the stairs leading from the street to Kohl's parking lot remained in place.
In 2006, the State budgeted the money to build a new pedestrian bridge in the general vicinity of the old pedestrian bridge. Construction of the new bridge was completed in 2008. Thus, the bridge was not in place between 1999 when it was struck by a truck, and 2004 when plaintiff was struck by a car.
During the intervening years, the State and the Township were aware that pedestrians were crossing Route 38 in the vicinity of the old pedestrian bridge. A New Jersey Department of Transportation (DOT) report of a March 16, 2000 "Local Outreach Meeting" at the Township Municipal Building stated: "Contacts with the local officials have indicated that some pedestrians are crossing the New Jersey Route 38 divided highway at the abutments of the downed pedestrian bridge." Although that report described "the objective" of this project as "replac[ing] the bridge and enhanc[ing] the safety of . . . Route 38 corridor by providing means for accommodating pedestrian needs of crossing the facility[,]" the report also summarized deficiencies in the proposed project.
Five months later, "[d]uring the course of scoping the project," DOT reviewed videotapes taken from two cameras, one installed at the location of the old pedestrian bridge, the other at the intersection of Route 38 and Cherry Hill Mall Drive. The cameras recorded two people crossing the median barrier near the site of the old pedestrian bridge on the first day of recording, one pedestrian crossing on the second day of recording, and none crossing on the third day of the recording.
The cameras also recorded on the first day seventy-nine pedestrians crossing Route 38 at the intersection of Cherry Hill Mall Drive; and New Jersey Transit buses discharging passengers at that location, forty-nine of whom crossed at the intersection. On the second day, seventy-six pedestrians and an additional twenty-one discharged bus passengers crossed at the intersection. On the third day, forty-four pedestrians and five discharged bus passengers crossed at the intersection.
In February 2001, two high school students wrote to the Township's mayor and informed her that students were crossing Route 38 and were jumping over the center barrier at the location of the old pedestrian bridge. In 2003, a nearby resident wrote to the mayor and council "that there are often people crossing that section of roadway by darting in between traffic." The resident explained that she had narrowly missed hitting a pedestrian with her car, and that "[r]oughly half of the times I pass where the pedestrian bridge once stood, there is someone or groups of people trying to cross the road. On at least three occasions, at night, I've slammed on my brakes and swerved to avoid hitting someone wearing non-reflective dark clothing."
During the course of scoping the project, DOT representatives also documented that representatives of the Cherry Hill Mall and Hillview Shopping Center, LLC questioned whether the bridge should be replaced. The Mall's representatives recounted at one meeting that the original pedestrian bridge had been built in 1967 to accommodate patrons of the "one hundred room hotel built in 1950 called the 'Cherry Hill Inn'" crossing to the Cherry Hill Mall, the "first mall in the country that was fully enclosed." DOT also determined that in order to reconstruct a new pedestrian bridge, the State needed to acquire an additional right-of-way from the Mall's owners. Nonetheless, DOT decided to proceed with the project.
In April 2003, the Township's mayor wrote to DOT and requested funding "under the Transportation Enhancement Program to replace the pedestrian bridge on State Highway Route 38." The mayor informed DOT that many residents were crossing over Route 38 during peak traffic hours, thereby posing a significant traffic and safety risk. The mayor also explained that "[p]edestrian need[]" would increase in early 2004 when the "432 unit Cherry Hill Towers" opened on the south side of Route 38 "directly across from the mall." In August 2003, DOT's Local Aid and Economic Development director responded:
The [Transportation Enhancement Program] continues to be very popular and increasingly competitive. As a result, we regret that we were unable to fund many worthwhile projects each year. This year's solicitation generated 251 applications totaling over $130 million in requests for approximately $10 million in available funding.
Unfortunately, while [thirty] projects were selected to receive funding[,] your project, [N.J.] Route 38 Pedestrian Overpass, was not among those chosen. I encourage you to continue to pursue the goals of your community and reapply for the Transportation Enhancement Program during the next solicitation. Staff of the Local
Aid district office remains available to work with you on any future applications. Please feel free to contact them directly with any questions or assistance you may need.
Nonetheless, the State continued to proceed with its plans to construct a new pedestrian bridge: In 2002, it budgeted $200,000 for the "final scope development phase"; in 2003, it budgeted $300,000 for "final design"; and in 2004, it budgeted $100,000 for right-of-way issues. In 2006, the State budgeted $3,600,000 to replace the pedestrian bridge. Construction was completed in 2008.
Plaintiff was struck by a car on May 7, 2004. He and three other teenagers had a friend drive them to Loews where they planned to watch a movie. They later changed their minds, and one of plaintiff's friends called his mother, who said she would pick them up at the Cherry Hill Mall. Although the teenagers could have walked from the movie theater to Haddonfield Road, they chose not to because there wasn't a path; as one testified, "[t]here's dirt and the curves where the cars come from 38 around to get onto Haddonfield Road."
Instead of walking to an intersection, the teenagers walked along the sidewalk leading from Loews to Route 38. When they were near Route 38, they climbed to the top of the stairs leading to Kohl's parking lot so that they could see Route 38 "better." At the top, one of the teenagers looked to his left, saw no traffic, and then looked to his right, observing that the traffic light on the nearest intersecting street was red but about to turn green. The teenagers descended the stairs and two crossed the highway. Plaintiff and his third friend stopped at the concrete median because cars were "coming really fast from [their] right." Plaintiff was struck as he straddled the median barrier.
Plaintiff had crossed Route 38, at the same location, in the same manner, twenty or thirty times before the night of the accident. Plaintiff testified during his deposition that, on at least one occasion, he crossed Route 38 without first going to the top of the steps to observe traffic. When asked why he did not use the steps on one or more occasions, he replied: "It was just . . . what we did regularly every time we went to the movies or the mall." He could not further explain his answer. He also conceded that after descending the steps, because traffic patterns could change, he would make additional observations before beginning to cross Route 38.
Anthony Gilberti, Jr. was driving the car that struck plaintiff. He and a car driven by Gina Karamanoogian had accelerated from a traffic light and Gilberti had reached a speed of approximately seventy-five miles per hour when his Mustang struck plaintiff. Plaintiff was severely injured, and ultimately underwent high amputation of his left leg.
Plaintiff filed a lawsuit in May 2006 against, among others, Gilberti and his parents; Karamanoogian and her father; the Township, its mayor, and its council members; the County of Camden; the State, DOT, and DOT's commissioner, Jack Lettiere; Kohl's, Hillview CH, and Kimco; Loews and CHIRP; and the driver of the truck that struck the original pedestrian bridge, as well as the company that owned the truck and its corporate president. Between February 2, 2007 and November 20, 2009, the Law Division issued eleven orders in which it either granted summary judgment to one or more defendants, or denied plaintiff's motions for reconsideration. Plaintiff appealed from the orders.
II.
The summary judgment standard is well-established. A trial court must grant a summary judgment motion if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). If the evidence submitted on the motion "'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
When a party appeals from a trial court order granting or denying a summary judgment motion, we "'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Thus, we must determine whether there was a genuine issue of material fact, and if not, whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We review legal conclusions de novo. Henry, supra, 204 N.J. at 330.
We first address the orders granting summary judgment to the State and Township. The Law Division granted the State's summary judgment motion after concluding the State was immune from liability under N.J.S.A. 59:2-3(d), which provides:
A public entity is not liable for 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. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omission of its employees in carrying out their ministerial functions.
Plaintiff argues the immunity provided by N.J.S.A. 59:2-3(d) does not apply to the "State's affirmative creation of a palpably unreasonably dangerous physical alteration of the integral structure and suspension of function of the Route 38 highway . . . rendering the highway unreasonably dangerous for its intended historical known and continued use as a means of community pedestrian crossing . . . ." Plaintiff also argues that the State "never participated in a documented legally sufficient allocation of resources analysis[.]" Lastly, plaintiff argues the State had surplus funds available to replace the pedestrian bridge, and its Program Development Manager testified at his deposition that the bridge "should have been done quicker."
The State responds that it is immune from liability because it exercised "its discretion concerning whether to seek and whether to provide the additional resources necessary in order to fund and complete the bridge spanning Route 38." The State argues that it exercised discretion in how to allocate its resources "to the hundreds of competing transportation projects."
In Lopez v. City of Elizabeth, we explained that "N.J.S.A. 59:2-3 particularly recognizes that government has no choice but to govern. A private person or firm that cannot afford the people and equipment to do a good job can withdraw rather than perform in a dangerous way. Government rarely has that option." 245 N.J. Super. 153, 164 (App. Div. 1991). For that same reason, the Supreme Court has recognized that high-level policy making decisions, which likely include "'whether to utilize the [DOT's] resources and expend funds for the maintenance of [a] road . . . [and] what road[] should be repaired,'" are cloaked with immunity. Coyne v. Dep't of Transp., 182 N.J. 481, 489-90 (2005) (quoting Costa v. Josie, 83 N.J. 49, 55 (1980)). In addition to such high-level decisions, discretionary "operational governmental decisions to devote existing resources to one activity rather than another are immune unless palpably unreasonable." See Longo v. Santoro, 195 N.J. Super. 507, 518 (App. Div.), certif. denied, 99 N.J. 210 (1984). "[A] discretionary decision of a public entity under subsection d of N.J.S.A. 59:2-3 and necessarily, one made by a public employee under subsection d of N.J.S.A. 59:3-2 need not be one made at the high level required under subsection a." Ibid. Thus, "discretionary operational or less than high-level planning decisions made by a public employee charged with a duty to exercise more than a ministerial function may be granted immunity." Ibid.
Plaintiff's argument that immunity should not apply is unpersuasive for several reasons. First, contrary to plaintiff's assertion, the State did not affirmatively create the condition alleged by plaintiff. A truck driver employed by a private company, not the State, crashed into and destroyed the original pedestrian bridge.
Second, the motion record is replete with evidence that the State allocated its resources. Within months of the original pedestrian bridge being destroyed, DOT began meeting with Township officials and assessing the need for a new pedestrian overpass. In 2002 the State allocated $200,000 for the final scope development phase of the project, and in 2003 it budgeted $300,000 for the final design. The DOT's Director of Local Aid and Economic Development explained in a letter to the Township's mayor in 2003 that thirty other projects had received funding in 2003, and there were insufficient funds to undertake more projects at that time. Moreover, as discussed below, DOT's manager of Capital Program Development explained how DOT allocated funds for highway improvements.
Plaintiff argues that the State's delay in funding the replacement of the pedestrian bridge was palpably unreasonable. A public entity is not immune from liability for the exercise of discretion if "a court concludes that the determination of the public entity was palpably unreasonable." N.J.S.A. 59:2-3(d). Palpably unreasonable behavior is behavior "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, 493 (1985)). For behavior to be "palpably unreasonable," "it must be manifest and obvious that no prudent person would approve of [the] course of action or inaction." Ibid.
To support its argument that the State acted in a palpably unreasonable manner, plaintiff asserts that Thomas A. Wospil, DOT's manager of Capital Program Development, said in a deposition that the bridge "should have been done quicker." Plaintiff quotes Mr. Wospil out of context. Mr. Wospil explained during his deposition that his duties included ensuring that
funding requests that were submitted to our office were analyzed and dealt with in a
professional manner in terms of meeting of fiscal responsibilities. Meaning, the [DOT] only has so much money available and we utilize our management systems within [DOT] to ensure funding is dedicated to projects in the pipeline that are worthy of advancing.
For the most part, the analysis was "based on a purpose and need." Mr. Wospil explained that there was a tremendous need for highway infrastructure in the State.
When specifically asked about the pedestrian bridge, Mr. Wospil explained that DOT was "just not going to go out and put this bridge back up without research, without scoping, without design, without the full aspect of our department pipeline. We have to go through steps, through processes."
The length of any project depended upon the circumstances unique to that project, and, according to Mr. Wospil, it was not unusual for a "federal project" to take eight years to develop and construct. Replacement of the pedestrian bridge was a federal project. He also explained,
in this particular case, it should have been done quicker, so I would gather that there were circumstances behind this particular request that made it take longer. I am not familiar with all the details of this particular request. The background, the circumstances, the consensus that was probably needed prior to advancing this project were ordered.
Mr. Wospil further explained that "[e]very project is based on its own merits." In view of Mr. Wospil's testimony concerning the time needed for scoping, planning, development, and construction of the bridge, and absent any counterveiling proofs, plaintiff did not demonstrate that the State's failure to complete construction of the bridge between 2000 and 2004 presented a jury issue as to whether the delay was palpably unreasonable.
Plaintiff also asserts that the State could have funded the pedestrian bridge project with surplus State funds. That is precisely the type of decision that is not an operational decision; rather, it is an example of high-level policy making decisions "traditionally entrusted to coordinate branches of government, and courts, utilizing standard tort principles, are ill-equipped to interfere with them." Coyne, supra, 182 N.J. at 489-90.
Although we have concluded that the State was immune from liability, we also conclude that plaintiff did not establish a prima facie case of liability based on a dangerous condition of public property. The TCA narrowly circumscribes a public entity's liability for injury caused by a condition of its property. N.J.S.A. 59:4-2 states:
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 protect against the condition or the failure to take such action was not palpably unreasonable.
A "dangerous condition" is defined by N.J.S.A. 59:4-1 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." Plaintiff failed to establish a prima facie case of liability based on a dangerous condition of the State's public property.
As we previously stated, contrary to plaintiff's contention, the State did not create a dangerous condition on Route 38. The State did not voluntarily dismantle or destroy the original pedestrian bridge. Thus, even if we were to determine that the absence of the bridge somehow constituted a defect in the roadway, the State could not be charged with creating a dangerous condition on its property.
Moreover, "[a] dangerous condition under [N.J.S.A. 59:4-1(a)] refers to the 'physical condition of the property itself and not to activities on the property.'" Wymbs v. Twp. of Wayne, 163 N.J. 523, 532 (2000) (quoting Levin v. Cnty. of Salem, 133 N.J. 35, 44 (1993)). There was no defect in Route 38 on the night of plaintiff's accident. The accident was caused by the activities of people on Route 38; plaintiff's, in crossing the highway other than at a controlled intersection or pedestrian walkway, and the drivers', who were speeding, and perhaps racing.
Lastly, plaintiff was not using Route 38 with due care. Although his experts suggest that others used the highway in a similar fashion, and that plaintiff's conduct was not unusual, none of those opinions establish that plaintiff used Route 38 with "due care," within the meaning of the TCA. The term "'used with due care' implies a standard of objective reasonableness." Garrison v. Twp. of Middletown, 154 N.J. 282, 291 (1998). When a plaintiff uses public property in a manner "that is not objectively reasonable from the community perspective," ibid., he or she is not using the property with due care.
Courts considering whether a plaintiff has used a public entity's property with due care must undertake a two-fold analysis: "The first consideration is whether the property poses a danger to the general public when used in the normal, foreseeable manner. The second is whether the nature of the plaintiff's activity is 'so objectively unreasonable' that the condition of the property cannot reasonably be said to have caused the injury."
[Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 126 (2001).]
Here, at night, at a location uncontrolled by traffic signals and unmarked by a pedestrian crossing, plaintiff attempted to cross a heavily traveled, six-lane highway divided by a concrete barrier. Plaintiff's conduct was so objectively unreasonable that the condition of Route 38 cannot reasonably be said to have caused his tragic injuries.
Having failed to demonstrate a defect in Route 38, and having engaged in objectively unreasonable conduct, plaintiff failed to establish a triable issue as to whether Route 38 was a dangerous condition as defined in the TCA. Summary judgment was appropriate.
In view of our determination that Route 38 was not a "dangerous condition" as defined in the TCA, plaintiff's argument that the court erred by granting summary judgment to the Township does not warrant extended discussion. To establish the Township's liability, plaintiff was required to establish that his injury was caused by a condition of the Township's property. Plaintiff produced no evidence that the Township owned or controlled Route 38.
Plaintiff argues that the trial court prematurely entered summary judgment in favor of the Township when discovery was incomplete. Addressing that argument, the trial court stated that "[d]iscovery is not an unlimited fishing expedition. There has to be some basis, some direction for discovery to go forward. Some reasonable belief that discovery will produce the meaningful information[.]"
We generally defer to a trial court's disposition of discovery matters. See Payton v. N.J. Tpk. Auth., 148 N.J. 524, 549 (1997). The trial court acted well within its discretion when it declined to delay disposition of plaintiff's claim against the Township. Cf. Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Ouinn, 410 N.J. Super. 510, 538 (App. Div. 2009) ("A respondent to a summary judgment motion, who resists the motion on the grounds of incomplete discovery is obliged to specify the discovery that is still required[.]"). Here, additional discovery could not have altered two facts: the State, not the Township, owned and controlled Route 38; and private property owners, not the Township, owned the property on which the steps to the Cherry Hill Mall and Hillview Shopping Center were located.
III.
We next address the trial court's summary judgment dismissal of plaintiff's complaint against the commercial land owners and tenants. Those defendants breached no duty to plaintiff.
Business proprietors "owe[] a duty of care to [their] invitees to provide a reasonably safe place to do that which is within the scope of the invitation[, which] extends to the premises' parking lot, . . . as well as to means of egress and ingress." McGrath v. Levin Prop., 256 N.J. Super. 247, 250 (App. Div.), certif. denied, 130 N.J. 19 (1992) (internal quotation marks and citations omitted). For that reason, we held in McGrath, that "with a carefully defined exception[,] . . . a property owner, who is otherwise without fault, owes no duty to pedestrians who are injured on an abutting highway . . . which is part of the public domain." Ibid.
Generally, "New Jersey Courts have not imposed a duty on a property owner to maintain a public street . . . ." Pote v. City of Atl. City, 411 N.J. Super. 354, 365 (App. Div.), certif. denied, 202 N.J. 43 (2010). Nevertheless, a "business proprietor's . . . liability [may be] predicated upon negligence in the conduct of its business . . . ." Mulraney v. Auletto's Catering, 293 N.J. Super. 315, 320 (App. Div.), certif. denied, 147 N.J. 263 (1996). For example, when business proprietors provide a customer parking lot across the street from their premises, and "know in providing the parking facility that their customers will travel a definite route to reach their premises [, they] . . . should not be permitted to cause or ignore an unsafe condition in that route which [they] might reasonably remedy . . . ." Warrington v. Bird, 204 N.J. Super. 611, 617 (App. Div. 1985), certif. denied, 103 N.J. 473 (1986). That is particularly so where "the question of control of the roadway has little bearing[, and the] lighting placed upon the premises of the [business] or parking lot might reasonably have illuminated the area and have made motorists more aware of pedestrians crossing the roadway to and from the [premises] and its parking lot." Ibid.
Under limited circumstances, we have extended a proprietor's duty "to undertake reasonable safeguards to protect its customers from the dangers posed by crossing an adjoining highway to an area the proprietor knows or should know its customers will use for parking." Mulraney, supra, 293 N.J. Super. at 321. Thus, in Mulraney, where the commercial proprietor knew its customers would use a non-owned parking lot "on those isolated occasions when the business conduct[ed] special functions that attract[ed] an unusually large number of attendees[,]" we held the proprietor was duty bound
to take . . . measures to protect its customers from a transient dangerous condition created by [its] own business operation, specifically, the conduct of a large function which it knew or should have known would involve some patrons parking on the opposite side of a poorly illuminated county highway that had no crossing for pedestrians.
[Id. at 321-323.]
Here, neither Loews nor Kohl's maintained a parking lot for customers on the northern side of Route 38. The motion record amply demonstrates that those defendants provided adequate parking for patrons. Unlike the situations in Warrington and Mulraney, patrons of Loews movie theater did not need to park across Route 38 in order to attend a movie. Here, unlike Mulraney, plaintiff was not exposed to a transient dangerous condition resulting from Loews or Kohl's conducting special functions at their premises. Rather, plaintiff was exposed to the risk inherent in one crossing a heavily traveled six-lane highway at a location other than a controlled intersection or crosswalk. That risk did not fluctuate with any sales events or special functions at Loews or Kohl's.
We are also unpersuaded by plaintiff's argument that Loews and CHIRP owed plaintiff a duty that somehow arose out of the embedded stairway leading from Route 38 to Kohl's parking lot. There was nothing inherently dangerous about the steps. Plaintiff was not injured on the steps. Moreover, if a pedestrian walked from the Cherry Hill Mall on the north, to the south side of Route 38 in the area of the old pedestrian bridge, Loews was directly accessible by way of a sidewalk. In view of those circumstances, there is no basis to impose a duty upon either Loews or CHIRP with respect to a stairway without defects, that provided no access to their premises, and was located on property they did not own or control.
We reach a similar conclusion as to Kohl's. Plaintiff produced no evidence that Kohl's either controlled or was contractually obligated to maintain the steps. Significantly, plaintiff does not contend that he was a business invitee of Kohl's. Were we to impose such a duty on Kohl's, we would be imposing a duty to any patron of any business in the Hillview Shopping Center who decided to enter the center by crossing Route 38 in the vicinity of the stairway; and to patrons of other businesses as well, such as Loews. Plaintiff has posited no persuasive policy consideration for imposing such a far-reaching duty on one tenant in a multi-tenant shopping center. For the reasons we have previously explained, as well as for the reasons discussed below concerning the Mall and Hillview shopping center landowners, we decline to impose such a duty on Kohl's.
That Kohl's was not contractually obligated to maintain the steps is merely one factor — a factor to which we give little weight — in determining whether a duty of care should be imposed. See Nielsen v. Wal-Mart Store No. 2171, 429 N.J. Super. 251, 260-61 (App. Div. 2013); but see Kandrac v. Marrazzo's Mkt., 429 N.J. Super. 79, 88-89 (noting that "the assignment of responsibilities in [a] lease, within the context of a multi-tenant shopping center, . . . impacts the scope of [a tenant's] ability to address conditions in the [shopping center's] parking lot").
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We are unpersuaded by plaintiff's argument that the landowners on both sides of Route 38 — the mall defendants on the north, Hillview CH, Kimco, and their predecessors in title on the south — breached a duty to plaintiff.
Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy . . . . That inquiry involves identifying, weighing, and balancing several factors — the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.
[Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993) (citations omitted).]
Applying these principles, we conclude that the landowners of property along Route 38, where the embedded stairs were located, owed no duty to plaintiff to warn him against, or otherwise protect him from, the danger of being struck by a car while crossing Route 38 where he did. Plaintiff was not a business invitee of any of those defendants. He attended Loews Movie Theater and attempted to cross Route 38 to return to Cherry Hill Mall not to shop, but to meet the person who was driving him home. The nature of the risk plaintiff encountered - - being struck by a car while crossing Route 38 where he attempted to cross - - was a risk inherent in his own conduct, not that of the surrounding property owners. Plaintiff had the immediate opportunity and ability to exercise due care by crossing Route 38 at an intersection or designated pedestrian crosswalk. And, ultimately, the risk inherent in crossing Route 38 at the subject location was eliminated by the State's allocation of resources to build a new pedestrian bridge.
In addition to those considerations, we cannot ignore the patently obvious risk inherent in defendant's conduct, or the fact that plaintiff's conduct violated State law. N.J.S.A. 39:4-34 states explicitly that "[i]t shall be unlawful for a pedestrian to cross any highway having roadways separated by a medial barrier, except where provision is made for pedestrian crossing." Plaintiff, in essence, requests that we impose upon others the obligation to deter him and those similarly situated from engaging in conduct that poses a self-evident risk of injury and violates State law. We fail to comprehend how "the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances[.]" Hopkins, supra, 132 N.J. at 439.
Plaintiff's remaining arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION