PER CURIAM.
Plaintiff George R. Bunero appeals from an order entered by the Law Division on April 25, 2014, granting summary judgment in favor of defendant, City of Jersey City (the "City"). We affirm.
This appeal arises from the following facts. On July 4, 2010, plaintiff was riding his motorcycle on Communipaw Avenue in Jersey City. Plaintiff's motorcycle was struck in the rear by a motorcycle which was being ridden by Carlos DaSilva ("DaSilva"), and plaintiff's motorcycle was propelled to the side of the road. The wheels of plaintiff's motorcycle ran up against the curb and the right floorboard skidded across the top of the curb. Plaintiff's right leg struck the nozzle cap of a fire hydrant, which was located on the sidewalk adjacent to the road, and he sustained an open compound fracture of his right leg.
Plaintiff filed a complaint against the City, pursuant to the New Jersey Tort Claims Act ("TCA"),
After the completion of discovery, the matter was submitted to arbitration. The arbitrator entered an award for plaintiff, and the City filed a demand for a trial de novo. The City thereafter filed a motion for summary judgment, arguing that plaintiff had not submitted sufficient evidence to support its claim against the City.
The record before the trial court on the summary judgment motion does not disclose when the fire hydrant at issue was installed at its location along Communipaw Avenue. However, it appears that the hydrant has been at that location since sometime before 1939.
In support of his claim, plaintiff produced a report prepared by Thomas A. Boorady ("Boorady"), a professional engineer at Gerald Zakim Associates, LLC. In his report, Boorady noted that in 1938, the American Water Works Association ("AWWA") published an article which stated, among other things, that no portion of the pumper or hose nozzle cap on fire hydrants should be placed less than six inches or more than twelve inches from the gutter face. According to Boorady, in 1970, the AWWA published a statement recommending a set-back of two feet from the curb line to the point of the hydrant nearest the curb. Boorady stated that the "two foot offset" remained the "standard" in 2010.
Boorady also stated that the distance from the subject hydrant's nozzle cap to the curb line on Communipaw Avenue was 1.5 inches. He opined that the City had improperly located or failed to relocate the subject hydrant. Boorady said the hydrant's pumper outlet is about 4.5 inches less than the six-inch minimum standard that AWWA published in 1938. He also opined that the placement of the hydrant was inconsistent with the "two feet" standard that the AWWA recommended in 1970.
In addition, Boorady reviewed certain "construction details" prepared for the City, which related to newly-relocated fire hydrants. Boorady said these "construction details" require a minimum of eighteen inches between the curb face and the hydrant valve. He stated that these current "standards" also require that there be a minimum of two feet between the curb face and the centerline of any newly-relocated fire hydrant.
In support of its motion for summary judgment, the City presented, among other evidence, the transcript of the deposition of Chuck F. Lee ("Lee"), a professional engineer who works for the City. Lee testified that, based upon the City's diagrams and his own analysis, the City probably could not have installed the subject fire hydrant further from the roadway, due to the adjacent property line and the location of the water main. Lee stated that "[y]ou can't put the hydrant on top of the water pipe."
The judge considered the City's motion on April 25, 2014, and after hearing oral arguments by counsel, placed an oral decision on the record. The judge concluded that the fire hydrant at issue did not constitute a dangerous condition of property, and the hydrant did not create a reasonably foreseeable risk of the kind of injury that occurred. The judge also determined that plaintiff failed to establish that the City's actions regarding the hydrant were palpably unreasonable.
The judge therefore concluded that plaintiff had not presented sufficient evidence to support his claim against the City under the TCA, and granted the City's summary judgment motion. The judge memorialized her decision in an order dated April 25, 2014. This appeal followed.
On appeal, plaintiff argues that the motion judge erred by granting summary judgment to the City. Plaintiff contends he presented sufficient evidence to support his claim against the City under the TCA, and the motion judge erred by concluding otherwise.
When reviewing an order granting or denying summary judgment, we apply the same standard that the trial court applies in ruling on a summary judgment motion.
In determining whether there is a genuine issue of material fact, the court "`consider[s] 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.'"
We note, however, that when reviewing a trial court's order granting or denying summary judgment, an appellate court "owe[s] no deference to [the trial court's] interpretation of law that flows from established facts."
The TCA was enacted to re-establish immunity for public entities in New Jersey, after it had been abrogated by the Supreme Court.
In this case, plaintiff asserts a claim under the TCA, alleging that the fire hydrant that he struck constituted a dangerous condition of the City's property. The TCA provides in pertinent part that:
We are convinced that the motion judge erred by determining as a matter of law that that the subject fire hydrant was not "in dangerous condition at the time of the injury." The TCA defines the term "dangerous condition" as a condition "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."
Here, the evidence proffered by plaintiff was sufficient to raise a genuine issue of material fact as to whether the subject hydrant constituted a dangerous condition as that term is defined in
Moreover, the fire hydrant is closer to the curb line than the two-feet "offset" that AWWA recommended in 1970. In addition, the City's current standard requires a minimum of two feet between the curb face and the center line of any newly-relocated fire hydrant. While the City's current standard is not specifically applicable to existing fire hydrants, it suggests that any fire hydrant which is closer than two feet to the curb face may create a substantial risk of injury.
Thus, plaintiff presented sufficient evidence from which a reasonable jury could conclude that the hydrant's proximity to the curb line posed a danger to a person on a motorcycle who veers close to the curb line. A jury also could conclude that it was reasonably foreseeable that a motorcyclist who rode his vehicle close to the curb could lean over and strike the hydrant. Simply put, a jury could find that the hydrant "created a reasonably foreseeable risk of the kind of injury which was incurred."
In deciding that the subject hydrant was not a dangerous condition, the motion judge relied on
The Supreme Court held that the bridge could not be deemed a dangerous condition because the plaintiff's injury was due to his dangerous conduct, rather than any physical condition of the property.
We are convinced that
Furthermore, the trial court's determination that the fire hydrant was not, as a matter of law, a dangerous condition, also is inconsistent with
We held that the trial court correctly found that the county and municipality were not liable under the TCA because these entities did not own the property where the telephone pole was located.
We stated that there was no evidence showing that the State had issued a permit for the placement of the pole at the location at issue.
Plaintiff further argues that the motion judge erred by determining that a reasonable jury could not find that the City's action or inaction with regard to the alleged dangerous condition was "palpably unreasonable." Plaintiff argues that that judge erred by deciding this issue as a matter of law. We disagree.
Under
A plaintiff has the burden of demonstrating that a public entity acted in a palpably unreasonable manner with regard to an alleged dangerous condition, which is a more onerous showing than ordinary negligence.
Here, the motion judge correctly determined as a matter of law that a reasonable jury could not find that the City's actions regarding the subject fire hydrant were palpably unreasonable. It is undisputed that the hydrant has been at its location on Communipaw Avenue since at least 1939. Plaintiff presented no evidence that the hydrant has been the cause of any incident or injury in that time.
In addition, Lee testified that there are approximately three thousand fire hydrants in the City, but he could not say how many were located in close proximity to a roadway, like the hydrant at issue in this matter. Lee conceded that, under the City's standard apparently established in 1989, relocated hydrants must be a minimum of two feet from the road.
However, the City's failure to move the subject hydrant further back from the curb line was not palpably unreasonable, particularly in view of Lee's testimony that there was insufficient space at the location to move the hydrant. Although plaintiff insists that movement of the fire hydrant further back from the curb line was not an impossibility, plaintiff failed to show that the City's failure to do so was a course of action or inaction that "no prudent person would approve of."
The Court's decision in
The Supreme Court held that the County did not create the condition merely because it did not have a routine road inspection program in place.
The Court noted that the County had a responsibility to maintain "an extensive network of roads," including the road where the accident occurred.
Here, the same principles apply. As we have noted, the City has thousands of fire hydrants on its properties. It is unclear how many of those hydrants are in close proximity to roadways, like the subject hydrant along Communipaw Avenue. Even so, the subject fire hydrant has been at its location for more than seventy years, apparently without any reported complaint or injury.
The City undoubtedly has "considerable responsibility" for maintenance of its properties and has "limited public resources" for that purpose.
We are convinced that, viewing the evidence in a light most favorable to plaintiff, a reasonable jury could not find that the City's failure to move the hydrant further away from the roadway was palpably unreasonable.
Affirmed.