ANGELA PRESTOL VS. HENPAL REALTY ASSOCIATES, LLC (L-3643-17, BERGEN COUNTY AND STATEWIDE)

A
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0633-19

ANGELA PRESTOL and
HECTOR PRESTOL, her spouse,

          Plaintiffs-Appellants,

v.

HENPAL REALTY ASSOCIATES,
LLC, a/k/a HENPAL REALTY
ASSOCIATES, SUEZ WATER
NEW JERSEY, INC., f/k/a
UNITED WATER NEW JERSEY,
INC., and CITY OF HACKENSACK.

          Defendants-Respondents,

and

COUNTY OF BERGEN and
STATE OF NEW JERSEY,

     Defendants.
_____________________________

                   Argued December 1, 2020 – Decided March 23, 2021

                   Before Judges Haas and Natali.
            On appeal from the Superior Court of New Jersey, Law
            Division, Bergen County, Docket No. L-3643-17.

            Manuel B. Sameiro, Jr. argued the cause for appellant
            (Davis, Saperstein & Salomon, PC, attorneys; Adam B.
            Lederman, on the brief).

            Cynthia J. Birkitt argued the cause for respondent
            Henpal Realty Associates, LLC (Law Offices of James
            H. Rohlfing, attorneys; Cynthia J. Birkitt, on the brief).

            Brian R. Ade argued the cause for respondent Suez
            Water New Jersey Inc. (Rivkin Radler LLP, attorneys;
            Brian R. Ade and Alexander G. Pappas, on the brief).

            Ruby Kumar-Thompson argued the cause for
            respondent City of Hackensack (Cleary Giacobbe
            Alfieri Jacobs, LLC, attorneys; Ruby Kumar-
            Thompson, of counsel and on the brief).

PER CURIAM

      In this trip and fall matter, plaintiffs Angela and Hector Prestol sued

Henpal Realty Associates, LLC (Henpal), Suez Water New Jersey, Inc. (Suez),

and the City of Hackensack (Hackensack) when plaintiff 1 fell after stepping in

an approximate two-inch depression on a public roadway in front of the building

where she worked. She contends the street's unsafe condition caused her to fall,




1
  Plaintiff's husband Hector Prestol sought per quod damages based on loss of
consortium. We refer to Angela as plaintiff and Hector by his first name for
clarity, intending no disrespect.
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and she obtained liability expert reports to support her claims. She fractured her

ankle and underwent surgery to address her injuries.

      After the completion of discovery, defendants moved for summary

judgment. As to Hackensack, the court concluded Angela failed to establish

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

and dismissed Hector's derivative per quod claim. The court also dismissed

plaintiffs' claims against Henpal and Suez under general negligence principles,

and other bases.    On appeal, plaintiffs argue the motion record contained

disputed questions of material fact that warranted denial of defendants' motions.

We disagree and affirm.

                                        I.

      We derive the following facts from the competent evidence submitted by

the parties in support of, and in opposition to, the summary judgment motions,

viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. of Am.,

142 N.J. 520

, 540 (1995). On October 23, 2015, plaintiff was crossing the street

outside of the crosswalk directly across from Hackensack Physical Therapy,

where she had worked for approximately fifteen years. Hackensack Physical

Therapy was located at 343A Main Street in Hackensack in a building owned by

Henpal.


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      Plaintiff stated she fell after stepping in what she initially described as a

"big pothole" near the curb and which measured one and a half to two inches,

injuring her right ankle and left knee. Plaintiff continued to experience pain a

week after the incident and her doctor prescribed a foot brace and physical

therapy. Plaintiff later visited Ralph Napoli, M.D. who, after reviewing a

magnetic resonance imaging of her ankle, diagnosed plaintiff with a fractured

right ankle, synovitis, and a partial tendon tear.

      In their initial complaint, plaintiffs named Henpal, Hackensack, the

County of Bergen, the State of New Jersey, and John Does and XYZ

corporations as fictitious, unknown individual and entity defendants. 2 The

complaint alleged that the defendants negligently inspected, repaired, and/or

maintained the area which caused plaintiff's fall.

      On September 5, 2018, plaintiffs' engineering expert, Kelly-Ann

Kimiecik, P.E., submitted a report following a May 29, 2018 inspection in which

she concluded that the incident "transpired due to negligence on behalf of the

defendant(s)." She concluded the pavement was replaced as a result of trench

reconstruction and noted the restoration "when backfilled and poorly compacted,



2
  Bergen County was dismissed with prejudice on July 31, 2017, and the State
of New Jersey was dismissed without prejudice on December 21, 2018.
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results in . . . settlement action . . . until the crack width widens to the point of

pavement spalling." Kimiecik reasoned that "over a period of time, exposure to

the elements and live load impacts created by active motor vehicle traffic

resulted in a breakdown of the asphalt pavement." She concluded "based on

reasonable engineering probability, had the trench backfilling operations been

performed with proper subgrade compaction at the subject accident location,

then the effects of settlement would have been negligible."

      Kimiecik also noted her observation that repairs had been performed at

the scene "which attempted to alleviate the prior roadway pothole (deterioration)

condition that created extremely hazardous conditions for the public," but that

"the repairs . . . have deteriorated to [a point] where a pothole formation existed

at the time of the inspection."

      Further, she observed indicia of "water main work . . . in the roadway

pavement, through the pavement subbase, at the plaintiff's incident location."

Kimiecik referenced Google Maps photos of the scene from August 2012,

observing that "[t]he deteriorated pavement condition . . . bespeaks long -term

and continued existence of the same" and that because "the advanced stage of

deterioration has occurred over a period of several years[,] . . . sufficient notice

was made to correct this condition prior to the plaintiff's injury." She further


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determined that the estimated cost of materials to repair the pothole was less

than $200 and that the failure to mitigate the hazard "renders the failure to make

the repairs palpably unreasonable."

      Based on her investigation, Kimiecik concluded that "deterioration

(surface depression/pothole) existing within the roadway yielded unsafe

conditions for the public," and that "based on reasonable engineering

probability," the pothole caused plaintiff's injury. Further, because of the "type

of roadway parking layout" at the scene and the fact that the pothole was in front

of a physical therapy facility without "warnings of the hazardous condition,"

Kimiecik opined that the pothole was "an extremely dangerous condition for

pedestrians."

      Jim Rittgers, an employee for CJ Lombardo Real Estate (Lombardo),

Henpal's property manager and managing agent, testified at his deposition that

Henpal was "responsible for the common areas of the property such as the

parking lots and sidewalks" as well as the roofs, but that "[t]he streets are not

our responsibility." After reviewing photographs of the area surrounding the

pothole, Rittgers stated that there had been "utility work in front of that building

specifically," and that he saw "numerous patches and work done right in front




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of the handicap sign." He also indicated that "[t]hey may have dug up the street

there for access to the water or gas or something at some point."

      On November 8, 2018, Joseph Inglima, a representative of the Hackensack

Department of Public Works (DPW) testified in deposition that he had no

knowledge of the policies and procedures regarding repair of potholes at that

time of plaintiff's accident as he did not work for the DPW until September 2017.

He did, however, testify that Suez would be responsible for repairing pavement

where they conduct an excavation in order to maintain or repair city water lines.

      The following week, plaintiffs filed a motion to extend discovery, to

amend their complaint in order to add Suez as a defendant, and to compel a

different representative of Hackensack to provide deposition testimony. The

court granted plaintiffs' motion and plaintiffs accordingly filed an amended

complaint on December 5, 2018, which included Suez as a defendant, in the

place of one of the fictitious party defendants.

      In January 2019, Jesse D'Amore, former superintendent of the Hackensack

DPW, was deposed.       D'Amore testified that the DPW was responsible for

repairing potholes and "taking care of curbs [and] sidewalks" but that water main

repairs were contracted out.     He indicated that a hotline was put in place

allowing residents to call and report potholes.      D'Amore also stated that


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beginning in the middle of winter, the Hackensack "[s]treet crew [was]

responsible for the potholes."

      D'Amore also testified that Hackensack was responsible for maintenance

and repair of the street, but that either "United Water," "Hackensack Water

Company," or Suez was responsible for water repairs. He also noted that he

"would imagine" that Hackensack would be notified of water repairs by Suez

and that a Hackensack project manager "would oversee the project that the water

company . . . was opening up the street for [them] to do."

      Finally, Jeffrey Picinich, a department superintendent at Suez, was

deposed on June 19, 2019. He testified regarding work orders associated with

343A Main Street on December 17, 1997, January 15, 1998, and July 6, 2011,

and indicated that a permit was not necessary for specific utility work at these

times, as utility companies were granted annual permits by Hackensack.

Picinich acknowledged that photos of the scene from 2012 and 2018 showed a

utility cut. While he stated that Suez had no record of making such a cut, it was

"possible" that Suez did the work in that area in 1997.

      On August 2, 2019, defendants individually moved for summary

judgment. Hackensack noted that "the managing agent for Henpal . . . conducts

regular inspections of the property in front of 343A Main Street" and that


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Rittgers "could not recall observing a pothole or crack in proximity to the

property."   It also noted that it "maintained a hotline for citizens to call

[Hackensack] to alert members of the DPW that a pothole/street crack required

repair" and that it received no notice of the pothole.

      Suez argued that plaintiffs' claims against it were "barred by the two[-

]year statute of limitations for personal injury actions, N.J.S.A. 2A:14-2(a)." It

also contended that plaintiffs' claims were barred by the ten-year statute of

repose, N.J.S.A. 2A:14-1.1. In this regard, Suez claimed that "it performed work

in front of 343[A] Main Street" in 1997 and 2011, but that the 2011 work "did

not require excavation of the roadway," and that its records did not indicate

whether the 1997 work included an excavation. Separately, it asserted that

plaintiffs' amended complaint, filed on December 5, 2018, was time barred as it

did not relate back to the filing of the May 25, 2017 initial complaint because

plaintiffs "did not exercise due diligence in their investigation and

identification" of Suez prior to Inglima's deposition.

      Henpal contended it was undisputed that plaintiff fell in the roadway,

which it neither controlled nor had an obligation to maintain. In this regard,

Henpal stressed that it was not responsible for the pothole because Inglima




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testified that Hackensack would be responsible for the roadway up to the curb.

Henpal also claimed that it had no notice of the pothole.

      Plaintiffs opposed defendants' motions and submitted a supplemental

report from Kimiecik. She noted that none of her previous conclusions were

changed by her supplemental review, but further opined that: 1) in 1997 "[t]he

water company created the utility cut and failed to properly restore the pavement

region that resulted in the pothole formation"; 2) "[t]he property owner/manager

failed to inspect and maintain the gutter region in accordance with . . . municipal

ordinances" and "two work orders produced by Suez indicate[d] that the calls

related to these work orders were made by Lombardo; thus, bespeaking their

understanding of the water company's facilities at the accident location"; and 3)

Hackensack failed to maintain and inspect the accident location because the

utility cut maintenance period had long expired and Hackensack "repetitively

undergoes construction efforts."

      On August 30, 2019, after hearing oral arguments, the court granted

defendants' motions for summary judgment in a twenty-four-page written

opinion and corresponding orders. In its written opinion, it found that "[t]he

pothole was next to the curb on the street as can be seen in the exhibit photos

located between two handicap parking spaces in front of 343A Main Street." It


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noted that those handicap parking spaces "were installed at the request of

[plaintiff's employer] for the benefit of its patients" and that the "paint separating

the two spaces goes directly into the pothole."

      The court found that the street had metered parking, which it was

Hackensack's responsibility to enforce, and that Hackensack admitted "that one

of its employees conducted meter collections on Main Street [one to two] times

per week during the time period in issue" and that "it is responsible for

maintaining and repairing the roadway surface where the subject pothole was

located." To this end, the court found that Hackensack would send a street crew

out each winter to check for potholes to repair.

      Nonetheless, it found that Hackensack had neither actual nor constructive

notice of the pothole under N.J.S.A. 59:4-3 because "there [was] no evidence

that any specific complaints were made to [Hackensack] about the conditions"

at 343A Main Street and plaintiffs "failed to produce evidence to support the

premise that the condition had existed for such a period of time and was of such

an obvious nature that [Hackensack] should have discovered it."

      The court determined that the pothole is located in the gutter in front of

the commercial property owned by Henpal, and that Henpal hired Lombardo to

perform "regular inspections of the entire property, including the front of


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[plaintiff's employer's building] to pick up garbage and any debris, among other

things." The court also considered that Kimiecik concluded that Suez created

the utility cut next to the water valve "and failed to properly restore the pavement

region that resulted in the pothole formation."

      The court first concluded that summary judgment was appropriate as to

Henpal because Henpal "is not responsible for repairs or maintenance of the

public roadway" in that area. In this regard, it determined that Henpal had no

duty "to maintain or repair the public roadway where [p]laintiff fell."

Notwithstanding a Hackensack ordinance allegedly requiring property owners

to repair or maintain abutting sidewalks, the court explained that such an

ordinance does not create a duty in tort.

      Second, the court determined that plaintiffs failed to prove each of the

elements of the TCA, and accordingly granted Hackensack's motion.                  It

concluded that the pothole was not a "dangerous condition" covered by N.J.S.A.

59:4-1(a) because "it was homogenous with the surrounding roadway . . . [and]

was nothing more than a 'minor imperfection' that clearly did not create a

'substantial' risk of injury."

      The court also determined that since plaintiff was jaywalking, "[i]t was

not foreseeable that [p]laintiff would have been using that portion of the


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roadway as a pedestrian." The court explained that Hackensack's failure to

repair the pothole was not palpably unreasonable because it "maintained a

hotline for citizens to alert members of the DPW of such conditions and

designated the DPW's street crew to make repairs that it was notified of."

      Finally, the court concluded that plaintiffs' claims against Hackensack for

damages relating to emotional distress and pain and suffering were bar red by

N.J.S.A. 59:9-2(d) because plaintiff's injuries did not constitute a "permanent

loss of a bodily function" as required by the TCA. Further, it denied Hector's

per quod claim because he did not meet the requirements in N.J.S.A. 59:9-2 as

he produced no evidence of a therapist or other medical professional "to meet

the requirement for objective permanent substantial injury to his own person" or

"proof of incurring medical treatment expenses" in excess of $3,600.

      As to Suez, the court determined that summary judgment was appropriate

because plaintiffs' claims were barred by the statute of limitations for personal

injury actions, N.J.S.A. 2A:14-2(a). To this end, it concluded that plaintiffs'

claims in their amended complaint do not relate back to the original filing

because plaintiffs "did not diligently seek to identify S[uez] before the

limitations period expired or within a reasonable time thereafter."




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      The court also determined that plaintiffs' negligent construction claim

against Suez was barred by the ten-year statute for improvements to property

under N.J.S.A. 2A:14-1.1. In doing so, it found that Suez's 2011 maintenance

work did not require roadway excavation, and that even if Suez's 1997 work "did

involve excavation, backfilling, or paving," it was undisputed that the 1997 work

occurred over ten years prior to the accident.

      The court determined that Suez did not owe a duty of care to plaintiff and

that plaintiffs failed to show that Suez had actual or constructive notice of the

pothole.   Finally, the court concluded the motion record failed to contain

competent proofs for a jury to conclude that Suez's 1997 maintenance work

created the pothole in 2015. This appeal followed.

      Plaintiffs contend on appeal that there were general questions of material

fact that precluded the entry of summary judgment. According to plaintiffs,

those genuine issues of material fact included whether the pothole was a

dangerous condition, whether Hackensack had notice of the pothole, whether its

actions were palpably unreasonable, and whether plaintiff suffered a permanent

injury.

      With respect to Suez, plaintiffs contend the trial court erred in determining

its claims were time barred and subject to the statute of repose. Plaintiffs also


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contend the court incorrectly resolved disputed factual questions regarding

Suez's notice and whether it and Henpal were liable under general negligence

principles.

                                       II.

      Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court. Townsend v. Pierre, 

221 N.J. 36

, 59

(2015). Summary judgment must be granted if the court determines "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). The court

must "consider 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." 

Brill, 142 N.J. at 540

. We accord no special deference to

the trial judge's conclusions on issues of law. Nicholas v. Mynster, 

213 N.J.

463

, 478 (2013) (citation omitted).

      Applying these standards and the provisions of the TCA discussed below,

we agree with the motion judge that plaintiffs failed to establish that Hackensack

had actual or constructive notice of the pothole or that its conduct in failing to

observe and maintain the pothole was palpably unreasonable. We also agree


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with the court that the motion record failed to create a genuine and material

question of fact regarding Henpal and Suez's liability under general negligence

principles.

      A.      Hackensack

      Public entity liability is restricted under the TCA. Polzo v. Cty. of Essex,

209 N.J. 51

, 55 (2012) (Polzo II). Generally, a public entity is "immune from

tort liability unless there is a specific statutory provision imposing liability."

Kahrar v. Borough of Wallington, 

171 N.J. 3

, 10 (2012) (citing Collins v. Union

Cty. Jail, 

150 N.J. 407

, 413 (1997)); see also N.J.S.A. 59:1-2, 2-1. Accordingly,

"immunity for public entities is the general rule and liability is the exception."

Kemp v. State, 

147 N.J. 294

, 299 (1997); accord D.D. v. Univ. of Med. &

Dentistry of N.J., 

213 N.J. 130

, 134 (2013) (describing that rule as the "guiding

principle" of the TCA (quoting Coyne v. State Dep't of Transp., 

182 N.J. 481

,

488 (2005))).

      "Potholes and depressions are a common feature of our roadways.

However, 'not every defect in a highway, even if caused by negligent

maintenance, is actionable.'" Polzo 

II, 209 N.J. at 64

(quoting Polyard v. Terry,

160 N.J. Super. 497

, 508 (App. Div. 1978)). Under the TCA:

                    A public entity is liable for injury caused by a
              condition of its property if the plaintiff establishes that

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            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.

            [N.J.S.A. 59:4-2.]

      "A public entity shall be deemed to have actual notice of a dangerous

condition . . . if it had actual knowledge of the existence of the condition and

knew or should have known of its dangerous character." N.J.S.A. 59:4-3(a). "A

public entity shall be deemed to have constructive notice of a dangerous

condition . . . only 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).

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      "The mere '[e]xistence of an alleged dangerous condition is not

constructive notice of it . . . .'" Arroyo v. Durling Realty, LLC, 

433 N.J. Super.

238

, 243 (App. Div. 2013) (alteration in original) (quoting Sims v. City of

Newark, 

244 N.J. Super. 32

, 42 (Law Div. 1990)). "Whether a public entity is

on actual or constructive notice of a dangerous condition is measured by the

standards set forth in N.J.S.A. 59:4-3(a) and (b), not by whether [for example]

'a routine inspection program' by the [public entity] . . . would have discovered

the condition." Polzo 

II, 209 N.J. at 68

.

      As the motion judge concluded that plaintiffs failed to satisfy each of the

elements of the TCA necessary to pursue their claims against Hackensack, we

need not address each element specifically. We agree that summary judgment

was appropriate because plaintiffs did not establish that Hackensack had actual

or constructive notice of a dangerous condition, and even assuming the motion

record created a factual question on that issue, Hackensack's actions were not

palpably unreasonable.

      We initially note that at oral argument in the trial court, plaintiffs

conceded that Hackensack did not have actual notice of the pothole. That

concession was consistent with the motion record which failed to suggest




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Hackensack received complaints, accidents, or concerns regarding any issue

with the public roadway in front of her employer's building.

      Instead, before us plaintiffs contend Hackensack had constructive notice

of the alleged dangerous condition based on: 1) an August 2012 Google Maps

photograph purportedly showing the depression in the roadway and the

existence of "blue striping" purportedly painted by Hackensack employees or

agents in the pothole and the surrounding area; 2) observations that could, and

should, have been made by municipal employees working in the vicinity of the

pothole; and 3) the expert opinions of Kimiecik. We disagree that any of these

"facts" individually, or collectively, create a genuine and material question of

fact regarding Hackensack's constructive notice.

      First, plaintiffs failed to present competent evidence to establish the length

of time the pothole existed. The Google Maps photographs, most of which are

undated, do not clearly identify the pothole. Further, even indulging plaintiffs'

arguments that a depression can be seen, the photographs do not show its extent

(i.e., length or depth) to establish Hackensack's constructive notice.            As

plaintiffs offered the photographs to assert the truth of a matter in dispute —

rather than for demonstrative or illustrative purpose or on an undisputed point —

it was necessary for the photographs to be properly authenticated under N.J.R.E.


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901. In any event, as noted, the photographs do not establish the condition of

the pothole in 2015, or its condition in the interim period.

      Nor did plaintiffs establish who painted the blue stripes or when. Even

were we to assume Hackensack employees performed that task, the record does

not establish, directly or by reasonable inference, the condition of the depression

at the time the painting occurred. Indeed, the Google Maps photograph shows

fading in the blue lines in and around the roadway area where plaintiff fell.

      Similarly, the Kimiecik reports, which substantially rely upon the

aforementioned deficient proofs, do not establish when the pothole first

manifested itself or when it degraded to the alleged dangerous condition causing

plaintiff's fall and injuries to support the expert's opinion that Hackensack had

constructive notice. As was the trial court, we are unpersuaded that Hackensack

should have observed the minor depression in the roadway through its agents

and employees who serviced the parking meters and otherwise traversed along

the roadway to perform their municipal functions.

      In this regard, the pothole abutted a parking space on a roadway where

cars regularly parked and was not of a magnitude such that one would expect an

employee to observe it in the regular course. See Polzo 

II, 209 N.J. at 68

.

Consequently, we are convinced that no reasonable jury could have concluded


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that Hackensack had actual or constructive notice of the pothole in a sufficient

time prior to plaintiff's injury to have taken measures to protect against it.

      Absent actual or constructive notice, Hackensack could not have acted in

a palpably unreasonable manner. See Maslo v. City of Jersey City, 346 N.J.

Super. 346, 350-51 (App. Div. 2002). Apart from proof of notice, to establish

liability against a public entity under N.J.S.A. 59:4-2, a plaintiff must establish

a prima facie case that the action or inaction of the public entity was "palpably

unreasonable." 

Coyne, 182 N.J. at 493

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

      The term "palpably unreasonable" implies "behavior that is patently

unacceptable under any given circumstance." Muhammad v. N.J. Transit, 

176

N.J. 185

, 195 (2003) (citations omitted); see also Ogborne v. Mercer Cemetery

Corp., 

197 N.J. 448

, 459 (2009) (to constitute "palpably unreasonable" conduct,

"it must be manifest and obvious that no prudent person would approve of [the]

course of action or inaction" (citations omitted)).             Further, palpably

unreasonable conduct "implies a more obvious and manifest breach of duty"

than negligence and "imposes a more onerous burden on the plaintiff." Williams

v. Phillipsburg, 

171 N.J. Super. 278

, 286 (App. Div. 1979).

      Whether the public entity's behavior was palpably unreasonable is

generally a question of fact for the jury.      See Vincitore v. N.J. Sports &


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                                        21
Exposition Auth., 

169 N.J. 119

, 130 (2001) (citations omitted). However, a

determination of palpable unreasonableness, "like any other fact question before

a jury, is subject to the court's assessment whether it can reasonably be made

under the evidence presented." 

Maslo, 346 N.J. Super. at 351

(quoting Black v.

Borough of Atl. Highlands, 

263 N.J. Super. 445

, 452 (App. Div. 1993)).

Accordingly, "the question of palpable unreasonableness may be decided by the

court as a matter of law in appropriate cases." 

Maslo, 346 N.J. Super. at 350

(citing Garrison v. Twp. of Middletown, 

154 N.J. 282

, 311 (1998)).

      As noted, there was no reported problem of a pothole in front of plaintiff's

employers' building, where she had worked for approximately fifteen years.

Further, Hackensack's maintenance and notice programs in place at the time of

the incident were not unreasonable. There is no dispute that Hackensack's

inspection of its public streets was a discretionary activity. Given the limited

resources of municipalities, it is not within our power to impose a more

comprehensive pothole inspection and repair program on Hackensack.            See

Polzo 

II, 209 N.J. at 69

. Under these circumstances, we conclude no rational

factfinder could find that it was palpably unreasonable for Hackensack not to

have repaired the pothole that caused plaintiff's unfortunate injury.

      B.    Henpal


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      Plaintiffs argue that Henpal had a duty to maintain the area in front of

343A Main Street because its tenant's patrons intended to use the area in which

the pothole was located. Plaintiffs further assert that the trial court misapplied

Monaco v. Hartz Mountain Corp., 

178 N.J. 401

(2004), when it concluded that

a commercial landowner's duty did not extend past the adjacent sidewalk.

Instead, plaintiffs contend that the factors outlined in Monaco support the

imposition of a duty on Henpal. We disagree. Henpal, as a commercial property

owner, clearly was not liable for plaintiff's injuries as it had no role in the

creation of the pothole or knowing of its existence, and it had no duty to maintain

any part of the public roadway.

      "To establish a prima facie case of negligence, a plaintiff must establish

the following elements: (1) duty of care, (2) breach of that duty, (3) proximate

cause, and (4) damages." D'Alessandro v. Hartzel, 

422 N.J. Super. 575

, 579

(App. Div. 2011) (citing Conklin v. Hannoch Weisman, 

145 N.J. 395

, 417

(1996)). Whether a party owes a legal duty, as well as the scope of the duty

owed, are questions of law for the court to decide. Carvalho v. Toll Bros. &

Devs., 

143 N.J. 565

, 572 (1996). "The inquiry has been summarized succinctly

as one that 'turns on whether the imposition of such a duty satisfies an abiding

sense of basic fairness under all of the circumstances in light of considerations


                                                                             A-0633-19
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of public policy.'" Olivo v. Owens–Illinois, Inc., 

186 N.J. 394

, 401 (2006)

(quoting Hopkins v. Fox & Lazo Realtors, 

132 N.J. 426

, 439 (1993)). We

examine foreseeability, Clohesy v. Food Circus Supermarkets, Inc., 

149 N.J.

496

, 502-03 (1996), as well as such factors as "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." Acuna v. Turkish, 

192 N.J. 399

,

414 (2007) (internal quotation marks and citation omitted).

      In Monaco, the Court stated that a commercial landlord owes a duty to:

            [E]xercise reasonable care for an invitee's safety. That
            includes making reasonable inspections of its property
            and taking such steps as are necessary to correct or give
            warning of hazardous conditions or defects actually
            known to the landowner. The landowner is liable to an
            invitee for failing to correct or warn of defects that, by
            the exercise of reasonable care, should have been
            discovered.

            [178 N.J. at 414-15 (citations omitted).]

      A commercial landlord's liability may extend "to cases in which the

landowner had no control over the dangerous condition and the condition was

not located on its property."

Id. at 415.

Indeed, "neither ownership nor control

is the sole determinant of commercial landlord liability when obvious danger to

an invitee is implicated."

Id. at 417.

Instead, "whether [a commercial landlord]

owes a duty of reasonable care toward another [individual] turns on whether the

                                                                             A-0633-19
                                       24
imposition of such a duty satisfies an abiding sense of basic fairness under all

of the circumstances in light of considerations of public policy."

Id. at 418

(quoting 

Hopkins, 132 N.J. at 439

).

      In Monaco, a traffic sign situated on the abutting sidewalk of the property

of a commercial landlord became dislodged and the landowner's invitee was

injured.

Id. at 404.

Our Supreme Court found that the landlord owed a duty to

the invitee to maintain safe premises, including areas of ingress and egress, and

to inspect and give warning of the dangerous condition.

Id. at 413-14.

      Unlike in Monaco, Henpal neither installed nor maintained the area of the

public roadway where plaintiff fell or had any responsibility for doing so. At

most, its tenant, Hackensack Physical Therapy, requested that Hackensack put

handicap parking spaces in front of that area.       Further, Henpal conducted

inspections of the sidewalks and there was no evidence it had actual or

constructive notice of any dangerous condition. It simply would be unfair to

hold that Henpal had a duty to plaintiff to warn her of the condition in the public

roadway for which it was unaware and had no role in creating.

      C.    Suez

      As to Suez, plaintiffs argue that the trial court erred in concluding Suez

did not have actual or constructive notice of the pothole because it "went back


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                                       25
to the very location in July[] 2011 to access the water valve at issue." They

further contend that, in any event, they were not obligated to establish Suez's

notice as it created the dangerous condition according to their expert's net

opinion. We disagree.

      Under New Jersey law, there are two distinct theories of recovery in a trip-

and-fall personal injury action. When an alleged dangerous condition is not

caused by a defendant, a plaintiff must establish actual or constructive notice.

However, where the defendant's actions create a foreseeable risk of harm, an

injured plaintiff need not prove either actual or constructive notice.

Tymczyszyn v. Columbus Gardens, 

422 N.J. Super. 253

, 264 (App. Div. 2011);

Smith v. First Nat'l Stores, 

94 N.J. Super. 462

, 466 (App. Div. 1967); Maugeri

v. Great Atl. & Pac. Tea Co., 

357 F.2d 202

, 203 (3d Cir. 1966); Model Jury

Charge (Civil), 5.20F(5), (9) (rev. Nov. 2019).

      As plaintiffs rely on Kimiecik's initial and supplemental reports in support

of their conclusion that Suez is responsible for plaintiff's injuries, we briefly

discuss the relevant evidentiary rules and case law regarding the admissibilit y

of expert opinions. A determination on the admissibility of expert testimony is

committed to the sound discretion of the trial court. 

Townsend, 221 N.J. at 52

(citing State v. Berry, 

140 N.J. 280

, 293 (1995)). A trial court's grant or denial


                                                                            A-0633-19
                                       26
of a motion to preclude expert testimony is entitled to deference on appellate

review.    The Supreme Court has instructed:        "[W]e apply [a] deferential

approach to a trial court's decision to admit expert testimony, reviewing it

against an abuse of discretion standard."

Id. at 53

(second alteration in original)

(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 

207 N.J. 344

, 371-72

(2011)).

      Two rules of evidence frame the analysis for determining the admissibility

of expert testimony.      N.J.R.E. 702 identifies when expert testimony is

permissible and requires the experts to be qualified in their respective fields.

N.J.R.E. 703 addresses the foundation for expert testimony. Expert opinions

must "be grounded in facts or data derived from[:] (1) the expert's persona l

observations, or (2) evidence admitted at the trial, or (3) data relied upon by the

expert which is not necessarily admissible in evidence but which is the type of

data normally relied upon by experts." 

Townsend, 221 N.J. at 53

(quoting Polzo

v. Cty. of Essex (Polzo I), 

196 N.J. 569

, 583 (2008)). "The net opinion rule is a

'corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an

expert's conclusions that are not supported by factual evidence or other data.'"

Id. at 53

-54 (alteration in original) (quoting Polzo 

I, 196 N.J. at 583

).




                                                                             A-0633-19
                                       27
      Therefore, an expert is required to "'give the why and wherefore' that

supports the opinion, 'rather than a mere conclusion.'"

Id. at 54

(quoting

Borough of Saddle River v. 66 E. Allendale, L.L.C., 

216 N.J. 115

, 144 (2013)).

The net opinion rule directs that experts "be able to identify the factual bases for

their conclusions, explain their methodology, and demonstrate that both the

factual bases and the methodology are reliable."

Id. at 55

(quoting Landrigan v.

Celotex Corp., 

127 N.J. 404

, 417 (1992)). In short, the net opinion rule is "a

prohibition against speculative testimony." Harte v. Hand, 

433 N.J. Super. 457

,

465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 

301 N.J. Super. 563

, 580

(App. Div. 1998)).

      Here, there was no competent evidence in the record, even after providing

plaintiffs with all reasonable inferences, to suggest Suez had actual or

constructive notice of the dangerous conditions.         The only evidence that

plaintiffs point to is the fact that Suez did work near the site in July 2011. Even

assuming Suez performed additional work near 343A Main Street, that work is

insufficient to establish actual or constructive notice of an approximately two -

inch pothole near the curb that plaintiff fell in nearly four years later. Indeed,

an employee of Suez stated in their deposition that the 2011 work only entailed

turning off 343A Main Street's water valve which did not require an examination


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                                        28
of any work in the street. As noted previously, the Google Maps photographs

do not competently show the existence or extent of a pothole in August 2012,

let alone July 2011.

      Further, Kimiecik's reports as to Suez are general, speculative, and

conclusory. At bottom, she concludes that Suez created the asphalt cut in the

road in 1997 and negligently repaired the area contrary to ASTM and New Jersey

Department of Transportation standards by failing to properly fill the hole and

compact it correctly. As a result of this alleged negligent work, Kimiecik opines

that Suez is responsible for the two-inch depression that formed near the curb at

some indeterminate point during the next seventeen years. Kimiecik's opinions,

however, are unsupported by any objective data other than her post-accident

observations.

      Moreover, Kimiecik's opinions are speculative as they fail to consider or

address in any substantive manner the other conditions unrelated to Suez's work

that could have caused the pothole's formation during the seventeen-year period

between Suez's 1997 repair and plaintiff's 2015 fall. To this point, Kimiecik

does not conclude that the pothole would not have formed even if Suez correctly

completed the work consistent with the standards upon which she relied. In fact,

she opines that the pothole's creation was caused, in part, by Hackensack's


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                                      29
failure to maintain the roadway as well as exposure to the elements and live load

impacts. Considering the significant temporal gap between the 1997 excavation

and repair and plaintiff's 2015 fall, Kimiecik's opinion as to Suez's responsibility

fails to contain the necessary "why and wherefore," 

Townsend, 221 N.J. at 54

,

to support her conclusion that Suez is responsible for the two inch depression in

the roadway.

      In light of our decision, we need not address the court's alternate bases for

granting summary judgment to Suez; namely that: 1) it owed no duty of care to

plaintiff, and 2) the statute of limitations and statute of repose applied barring

plaintiffs' claims. To the extent we have not addressed any of the parties'

remaining arguments it is because we have determined that they are without

sufficient merit to warrant discussion in a written opinion.         See R. 2:11-

3(e)(1)(E).

      Affirmed.




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                                        30

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