This appeal arises out of a fatal cycling accident. The trial court granted partial summary judgment dismissing the complaint after concluding no genuinely disputed issue of fact existed as to whether Essex County (the County) had constructive notice of the allegedly dangerous condition on the roadway's shoulder. We reverse and remand for trial as to whether the County maintained a dangerous condition of its property pursuant to
On August 18, 2001, plaintiff's decedent, Mathi Kahn-Polzo (Kahn-Polzo), was cycling on the shoulder of Parsonage Hill Road, a county road located in Millburn. She was the last in a line of five cyclists riding on the shoulder when she reportedly fell off her bicycle after it traveled over a circular depression approximately two feet in diameter and one and one-half inches in depth. Plaintiff filed a complaint individually and as executor for Kahn-Polzo's estate on September 12, 2002. He named as defendants, the County, the State of New Jersey, and Millburn Township. Subsequently, the court granted plaintiff leave to file an amended complaint in which he added Public Service Electric and Gas Company as a defendant. With the exception of the County, all of the remaining public entity defendants were eventually dismissed from the complaint following successful summary judgment motions. In an order dated September 23, 2005, the motion judge granted summary judgment dismissing the complaint against the County after finding that no reasonable jury could conclude that the County's actions were palpably unreasonable. On appeal, in an unpublished opinion, we reversed.
The Supreme Court granted defendant's petition for certification and reversed.
The Court noted that the "threshold question — whether the County was on constructive notice of the alleged dangerous condition — was side-stepped by the motion court and too expansively determined by the Appellate Division."
The remand order directed the motion judge to review the record as presented by the parties and permitted the court, in its discretion, to allow the parties to supplement the record.
From that supplemental record, the Court directed the motion judge "to determine whether plaintiff's proofs satisfy all of the elements required for a claim against a public entity for the alleged dangerous condition of public property." Id. at 586-87.
Following the remand, on December 11, 2008, plaintiff served upon the County a notice to take oral depositions of "[a]ny [p]erson or [p]ersons who received or recorded the information, prepared the work order and filled out any part of the form for Complaint Number 3713 dated July 6, 2001" for Parsonage Hill Road in the area where Kahn-Polzo died. Additionally, plaintiff noticed defendant to produce copies of any video or photographic logs of Parsonage Hill Road taken within the five-year period prior Kahn-Polzo's August 18, 2001 accident. These additional discovery requests were similar to discovery requests served upon defendant previously and for which plaintiff sought an order compelling defendant to provide the outstanding discovery or, alternatively, suppressing defendant's answer and defenses at the time of trial. In an order dated August 5, 2005, the court denied the motion, stating in its reasons incorporated in the order:
Notwithstanding the August 5, 2005 order, plaintiff again moved
The County once again moved for summary judgment. In an oral opinion rendered following argument on the County's motion, the court granted summary judgment, finding that "[p]laintiff has not met the burden that there was constructive notice . . . of a dangerous condition" and "plaintiff's proofs were not sufficient to raise any questions of fact as to whether the County was palpably unreasonable in failing to repair the depression."
The court first found that Dr. Kuperstein's report was not a net opinion when considered together with his deposition testimony, which the court found explained why the depression in the roadway was a dangerous condition, namely, its size and configuration "would cause a bicycle to destabilize going 15 or 20 miles an hour." The court was also satisfied that plaintiff had established a prima facie case of proximate cause. It based this finding upon: (1) Dr. Kuperstein's opinion that the depression could cause a bicycle to destabilize; (2) the fact that Dr. Kuperstein ruled out other causes for Kahn-Polzo's fall; and (3) the fact that the condition of the depression as described by Dr. Kuperstein made it reasonably foreseeable that there was a risk of the kind of injury sustained by Kahn-Polzo.
Despite these findings, the court concluded that there was insufficient evidence to withstand summary judgment on the question of whether the County had constructive notice of the allegedly dangerous condition at least six weeks prior to Kahn-Polzo's accident. The court reasoned that the depression at issue, which Dr. Kuperstein opined was approximately one and one-half inches in depth and two feet in diameter at the time of the accident, was not of such an obvious nature that the County, in the exercise of due care, should have discovered the condition and its dangerous character at least six weeks earlier. The court also rejected Dr. Kuperstein's testimony that the County lacked an inspection program as a net opinion, noting that Dr. Kuperstein "didn't say what the program should be." The court explained further that Dr. Kuperstein "didn't talk about reasonable methods[,] that when you inspect[,] you do have to get down, you do have to have a ruler, you do have to appreciate and look at how steep it is . . . ." The present appeal followed.
On appeal, plaintiff raises the following points for our consideration:
Our analysis begins with a reiteration of the basic principles of appellate review, namely, that our consideration of a trial court's order granting summary judgment is de novo, using the same standard as the trial court under
Because the shoulder of the roadway where plaintiff sustained her fatal injuries was owned and controlled by a public entity, the County, any recovery against it is governed by the provisions of the New Jersey Tort Claims Act (TCA),
To recover against a public entity for a dangerous condition of its property, a plaintiff must prove: (1) "the property was in [a] dangerous condition at the time of the injury"; (2) "the injury was proximately caused by the dangerous condition"; (3) "the condition created a reasonably foreseeable risk of the kind of injury which was incurred"; and (4) "either: (a) a negligent or wrongful act or omission of an employee within the scope of  employment created the dangerous condition, or (b) a public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."
We are persuaded that the record establishes no genuinely disputed issue of fact of actual or constructive notice to the County of a dangerous condition. Because there is no dispute that the County did not have actual notice of the depression at issue here, we focus our discussion upon the question of constructive notice.
"[A] public entity may be charged with constructive notice if 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."
In this case, discovery revealed that the County, based upon a complaint of potholes on Parsonage Hill Road on July 6, 2001, "checked and [did] pot holes [for the] entire length" of Parsonage Hill Road on that date. It is unclear whether the inspection and repairs along the roadway included the shoulder of the roadway where Kahn-Polzo fell. Dr. Kuperstein, in his last report prepared following the Supreme Court's remand, opined that the depression was caused by an "erosion of the underlying subsurface, as opposed to a `pothole' caused by portions of the road surface becoming dislodged and removed through snow plow and other actions." Further, based upon photographs taken on the day of the accident, he expressed the opinion that the depression was approximately one and one-half inches in depth and that by time he inspected the area in February 2004, the depression was approximately three inches in depth, double its size, two and one-half years later.
From the depression's characteristics at these two points in time, Dr. Kuperstein reached the conclusion that the depression existed for approximately two years prior to Kahn-Polzo's accident, would have been similar in appearance for a two-year period prior to Kahn-Polzo's accident, and would have been "easily identifiable to any reasonable inspection of the area." Dr. Kupestein failed, however, to provide any explanation as to how he arrived at the conclusion that two years before the accident, the depression "would have been in a similar state as seen on the date of the accident . . . ." This is particularly fatal because he attributes the depression to "erosion," which bespeaks a gradual process as opposed to any particular traumatic event. Moreover, he acknowledged in his deposition testimony that he did not know for a fact that the depression grew at a linear rate. The failure to provide any factual basis for his conclusions once again results in an opinion which the Supreme Court earlier noted "does not cite to or otherwise explain the relied-upon `recorded changes'[.]"
In reversing our decision, the Supreme Court stated: "We address only the sufficiency of the plaintiff's proofs in respect of the question of whether constructive notice of a dangerous condition on public property can be imputed to the public entity."
Dr. Kuperstein, in his July 29, 2004 report, stated:
Separate and distinct from liability premised upon actual or constructive notice of a dangerous condition under
During oral argument, plaintiff's counsel argued not only constructive notice but whether the County's failure to have a maintenance program beyond responding to complaints was conduct that was palpably unreasonable:
There was testimony from the County's road superintendent, Salvatore Macaluso, that the roadway depression, as it existed at the time of the accident, was of the type that would have been repaired had the County been aware of it. As the Supreme Court noted, this testimony was irrelevant to the question of constructive notice. This testimony, however, is relevant to whether the failure to have a routine inspection program beyond responding to complaints was palpably unreasonable. In the absence of any routine inspection program, a jury reasonably could conclude that it is the failure to have a maintenance program that called for routine inspections of the roadway and shoulder that could likely result in an injury of the kind sustained by Kahn-Polzo, and that the failure to have such a program was palpably unreasonable.
The net opinion rule "forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data."
In view of our decision, we determine that it is unnecessary to address the arguments advanced in Points III and IV. However, as to Point II, we find the court did not abuse its discretion in denying plaintiff's motion to essentially re-open discovery beyond that which the Supreme Court deemed necessary to address Dr. Kuperstein's opinion. Plaintiff, through the remand proceedings, essentially attempted to revisit the earlier August 5, 2005 order. It is unclear whether the August 5 order was ever the subject of a motion for reconsideration or an issue in plaintiff's direct appeal following the initial grant of summary judgment to the County. Hence, although plaintiff attempted to revisit that ruling indirectly through his January 2009 motion to strike or, alternatively, to compel discovery, we discern no error or abuse of discretion on the part of trial court in declining to do so.
Reversed and remanded for trial solely upon the question of the County's liability, if any, pursuant to