MARY LOU RAPP VS. VILLAGE OF RIDGEFIELD PARK(L-5188-14, BERGEN COUNTY AND STATEWIDE)
A-2525-15T1
| N.J. Super. Ct. App. Div. | Jul 13, 2017Background
- Mary Lou Rapp tripped and fell on an upraised public sidewalk in front of the Escarret residence; she sustained a fractured patella requiring open reduction and internal fixation and other knee injuries, with medical expenses > $248,000.
- The Village of Ridgefield Park and its Shade Tree Commission (STC) moved for summary judgment; the Law Division granted summary judgment to both the Village and the STC and dismissed Rapp's complaint; Rapp appealed as to the Village (not the Escarrets; their summary judgment was not appealed).
- Evidence showed trees had caused sidewalk upheaval on that street, the Escarrets complained in 2007 and a tree there was removed, the Village DPW superintendent had long personal knowledge that sidewalks on the street were in poor condition, and some repairs were performed after the tree removal; Mr. Escarret attempted a repair about one year after Rapp's fall.
- Rapp’s expert opined the uneven slab was a tripping hazard; photographs in the record were taken after the fall and after the homeowner’s attempted repair.
- The trial judge granted summary judgment based on lack of actual or constructive notice under the Tort Claims Act (TCA) and on the statutory threshold for aggravated injuries (permanent loss of bodily function).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sidewalk’s condition was a "dangerous condition" under the TCA | Rapp: the uneven/upraised slab was a tripping hazard and create[d] substantial risk when used reasonably | Village: insufficient proof the slab constituted a dangerous condition and photos show minimal differential | Court: fact issue exists — record (testimony, expert) suffices to raise genuine dispute on dangerous condition |
| Whether the public entity had actual or constructive notice of the dangerous condition (N.J.S.A. 59:4-3) | Rapp: Village had actual knowledge from prior tree removal, DPW superintendent’s awareness, and repeated complaints about sidewalks | Village: no adequate notice shown to impose liability | Court: evidence of prior tree removal, DPW knowledge, and complaints sufficed to defeat summary judgment on notice |
| Whether the Village’s conduct was palpably unreasonable (TCA standard) | Rapp: having notice and not adequately remediating or warning could be palpably unreasonable | Village: argued no palpable unreasonableness; moved for summary judgment | Court: whether conduct was palpably unreasonable is generally a jury question here (could not be decided for Village on summary judgment) |
| Whether the injury met the TCA aggravated-injury threshold (permanent loss of bodily function) (N.J.S.A. 59:9-2(d)) | Rapp: injury and surgical hardware constitute permanent loss of bodily function akin to Gilhooley | Village: trial judge held plaintiff failed to satisfy the statutory threshold | Court: reversed the grant on this ground — facts comparable to Gilhooley support finding permanent loss of bodily function |
Key Cases Cited
- Polzo v. Cty. of Essex, 209 N.J. 51 (describing TCA elements and notice requirement)
- Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119 (defining requirements to impose liability under N.J.S.A. 59:4-2)
- Norris v. Borough of Leonia, 160 N.J. 427 (treating public sidewalks as public property under the TCA)
- Gilhooley v. County of Union, 164 N.J. 533 (holding surgical repair with hardware can constitute permanent loss of bodily function for TCA aggravated-injury exception)