ORNELLA RODOLICO VS. TOTOWA BOARD OF EDUCATION,WASHINGTON PARK SCHOOL(L-542-14, PASSAIC COUNTY AND STATEWIDE)
A-4140-15T1
| N.J. Super. Ct. App. Div. | Aug 31, 2017Background
- On Feb. 21, 2012 Ornella Rodolico tripped on allegedly raised floor tiles in the lobby of Washington Park School, dislocating her right shoulder; she underwent surgery and rounds of physical therapy.
- Plaintiffs sued the Totowa Board of Education and the school under the New Jersey Tort Claims Act (TCA) alleging the raised tile was a dangerous condition that the BOE knew or should have known about.
- Plaintiffs produced an engineering report concluding a half-inch vertical tile edge created a hazardous trip condition and violated safety codes.
- Defendants’ witnesses (maintenance supervisor and school nurse) testified they had not observed raised tiles, had no complaints or prior accidents reported at the location, and that floors were regularly inspected.
- Trial court granted summary judgment for defendants, finding no evidence of actual or constructive notice or palpably unreasonable conduct, and that Ornella failed to meet the TCA "verbal threshold" for substantial permanent loss of bodily function.
- Appellate division affirmed, applying TCA standards for dangerous condition, notice, palpably unreasonable conduct, and the verbal threshold.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the raised tile constituted a "dangerous condition" of public property | The tile created a substantial risk of injury (engineer’s report, photos) | No evidence the condition posed substantial risk; floor was inspected and maintained | Court assumed arguendo a dangerous condition but found plaintiffs failed other elements; no genuine issue of material fact supporting liability |
| Whether defendants had actual or constructive notice of the condition | Condition was obvious/longstanding and the BOE should have discovered it (constructive notice) | No complaints, prior incidents, or maintenance records showing notice | No evidence of actual or constructive notice; summary judgment affirmed because notice element was unmet |
| Whether defendants’ failure to remediate was "palpably unreasonable" | BOE conduct in failing to repair was unreasonable given the hazard | Absent notice, failure to act cannot be palpably unreasonable; inspections occurred | Because notice was not established, plaintiffs cannot show palpably unreasonable conduct; summary judgment proper |
| Whether Ornella met the TCA verbal threshold (permanent substantial loss of bodily function) | Surgery, limited range of motion, therapy, ongoing pain and medical opinions show permanent substantial loss | Plaintiff can still work, perform household tasks, and travel; limitations are not substantial loss | Not met: record shows ongoing ability to perform daily activities and the impairment is not a "substantial" permanent loss under controlling precedent |
Key Cases Cited
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (standards for summary judgment)
- Polzo v. County of Essex, 209 N.J. 51 (TCA liability framework)
- Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119 (elements for imposing TCA liability)
- Atalese v. Long Beach Township, 365 N.J. Super. 1 (pavement differential found dangerous)
- Kahrar v. Borough of Wallington, 171 N.J. 3 (rotator cuff injury met verbal threshold)
- Gilhooley v. County of Union, 164 N.J. 533 (verbal threshold explained)
- Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324 (continuum for substantial loss analysis)
- Brooks v. Odom, 150 N.J. 395 (painful but non-substantial limitations do not meet threshold)
- Gaskill v. Active Environmental Technologies, Inc., 360 N.J. Super. 530 (no notice, summary judgment affirmed for township)
- Maslo v. City of Jersey City, 346 N.J. Super. 346 (absence of proof of notice defeats claim)
- Ponte v. Overeem, 171 N.J. 46 (limitations that are not permanent substantial loss fail verbal threshold)