SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0757-16T1

BRIAN SHORT,

Plaintiff-Appellant,

v.

CITY OF TRENTON,

Defendant-Respondent.

_____________________________

Submitted May 15, 2018 – Decided June 20, 2018

Before Judges Yannotti and DeAlmeida.

On appeal from Superior Court of New Jersey, 

Law Division, Mercer County, Docket No. L2568-14.

Martin J. Hillman, attorney for appellant.

Walter D. Denson, Law Director, City of 

Trenton Legal Department, attorneys for 

respondent (John Morelli, Assistant City 

Attorney, on the brief).

PER CURIAM

Plaintiff Brian Short appeals from an order entered by the 

Law Division on June 27, 2016, which granted summary judgment in 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-0757-16T1

favor of defendant, City of Trenton (the City), and an order 

entered by the court on September 15, 2016, denying his motion for 

reconsideration. We affirm.

I.

On November 5, 2014, plaintiff filed a complaint in the trial 

court alleging that on November 25, 2013, at around 4:00 p.m., he 

was on East State Street in the City. He alleged he was injured 

because the City's property was "negligently owned, controlled, 

supervised, operated, managed, inspected, repaired and 

maintained." Plaintiff claimed he sustained severe external and 

internal injuries, suffered great pain, could not attend to his 

business, and incurred medical expenses. He sought damages and the 

costs of suit. The City filed an answer denying liability. 

After discovery, the City filed a motion for summary judgment, 

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

to 12-3, arguing that plaintiff failed to present sufficient 

evidence to establish a cause of action against the City based on 

an alleged dangerous condition of public property. The City also 

argued that plaintiff's injuries did not meet the threshold under 

the TCA for the award of pain and suffering damages.

Plaintiff opposed the motion and filed a certification.

Plaintiff stated that on November 25, 2013, he was walking to 

board a bus on East State Street and noticed the bus he wanted to 
3 A-0757-16T1

board had stopped in the middle of the block due to heavy traffic. 

According to plaintiff, the driver of the bus was letting 

passengers on, so he crossed the street to board the bus. Plaintiff 

stated that water was coming up into the street from under the 

ground and ice had formed on the street. Plaintiff slipped and 

fell on the ice. He stated that marks had been spray-painted on 

the roadway, which indicated that "repairs or some type[] of work 

[was] going to be done on that area." 

In his deposition, plaintiff testified that at the relevant 

time, there was traffic on East State Street and buses were backed 

up. He crossed the street, "slipped on black ice," twisted his 

ankle, and "broke it on the sidewalk." Plaintiff acknowledged he

did not cross the street in the crosswalk. Plaintiff said water 

"was coming up from the area where the black ice was." There was 

no sewer hole at that location, and he guessed "a water pipe had 

burst." 

Plaintiff also stated that someone had "marked the road where 

they're supposed to dig and fix the problem, I guess." He admitted, 

however, that he did not know what those marks were. Plaintiff 

testified that he did not see anyone put the marks on the street, 

and he did not know how long the marks had been there. 

Plaintiff further testified that he did not know if the City 

had been notified of water bubbling up in the street. He admitted 
4 A-0757-16T1

he did not give notice to the City of that condition. Plaintiff 

said he had never before seen water bubbling up in the area where 

he fell. Plaintiff said he took a photo of the scene before he was 

taken by ambulance for medical treatment. The record includes a 

photo which shows some ice in the street near the curb.

Plaintiff also submitted a report by Randy S. Tartacoff, M.D. 

Dr. Tartacoff stated that on November 25, 2013, plaintiff slipped 

and fell on an "icy street." Plaintiff immediately complained of 

severe right ankle pain and was subsequently evaluated at a medical 

center. It was determined that plaintiff had sustained a 

trimalleolar fracture of the right ankle. 

On November 26, 2013, plaintiff had surgery, specifically,

open reduction and internal fixation of the ankle fracture. 

According to Dr. Tartacoff, plaintiff followed up with an 

orthopedic clinic on three dates in December 2013, January 2014, 

and February 2014. Plaintiff also was placed in a physical therapy 

rehabilitative program, but could not attend the program because 

he lacked medical insurance. 

Dr. Tartacoff opined that plaintiff had suffered a 

"consequential limitation of use of his right ankle joint," and 

the injury was permanent. Based on plaintiff's subjective 

complaints and the doctor's objective findings, Dr. Tartacoff 

concluded plaintiff has a permanent limitation of motion and 
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function to the right ankle joint, and he will never return to his 

"pre-morbid state." The doctor wrote that he expected plaintiff 

"will have a much lower threshold for repeated injury and a more 

rapid progression of traumatic degenerative disease." 

On June 27, 2016, the motion judge placed an oral decision 

on the record. The judge found that there was no genuine issue of 

material fact, and the City was entitled to judgment as a matter 

of law.

The judge rejected the City's contention that plaintiff had 

not been using the property with due care because he crossed in 

the middle of the street, rather than at the crosswalk. The judge 

therefore found that plaintiff had presented sufficient evidence 

to show that the condition in the City's street was a "dangerous 

condition" under the TCA. Nevertheless, the judge determined that 

plaintiff failed to show the City had either actual or constructive 

notice of the dangerous condition. 

The judge also found that plaintiff had not presented 

sufficient evidence to show that the City's action with regard to 

the alleged dangerous condition was palpably unreasonable. In 

addition, plaintiff failed to show that he met the threshold for 

the award of pain and suffering damages under the TCA. The judge 

memorialized her decision in an order filed June 27, 2016.
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Plaintiff filed a motion for reconsideration. He argued that 

the question of whether the City's actions regarding the alleged 

dangerous condition were palpably unreasonable is an issue that 

should be decided by a jury. Plaintiff further argued that he 

presented sufficient evidence to satisfy the threshold for pain 

and suffering damages under the TCA. 

On September 15, 2016, the judge placed an oral decision on 

the record, concluding that there was no basis for reconsideration 

of the June 27, 2016 order granting the City's motion for summary 

judgment. The judge entered an order dated September 15, 2016, 

denying the motion for reconsideration. This appeal followed.

II.

On appeal, plaintiff argues that the trial court erred by 

granting summary judgment to the City. He contends that he 

presented sufficient evidence to raise a genuine issue of material 

fact as to whether the City had notice of the alleged dangerous 

condition in the street where he fell, and whether the City's 

failure to address that condition before his fall was palpably 

unreasonable. 

Summary judgment must be granted when there is no genuine 

issue of material fact and the moving party is entitled to judgment 

as a matter of law. R. 4:46-2(c). "An issue of fact is genuine 

only if, considering the burden of persuasion at trial, the 
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evidence submitted by the parties on the motion, together with all 

legitimate inferences therefrom favoring the non-moving party, 

would require submission of the issue to the trier of fact." Ibid.

The non-moving party may not defeat a motion for summary 

judgment "merely by pointing to any fact in dispute." Brill v. 

Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995) (emphasis 

in original). "If there exists a single, unavoidable resolution 

of the alleged disputed issue of fact, that issue should be 

considered insufficient to constitute a 'genuine' issue of 

material fact for purposes of Rule 4:46-2." Id. at 540 (citing 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). 

"On appeal, we accord no special deference to a trial judge's 

assessment of the documentary record, and instead review the 

summary judgment ruling de novo as a question of law." Davidovich 

v. Israel Ice Skating Fed'n, 446 N.J. Super. 127, 159 (App. Div. 

2016) (citations omitted). In determining whether the trial court 

erred by granting summary judgment, we apply the same standard 

that the trial court must apply in ruling on the motion. Conley

v. Guerrero, 228 N.J. 339, 346 (2017) (citing Templo Fuente De 

Vida Corp. v. Nat'l Union Fire Ins. Co. of Pitt., 224 N.J. 189, 

199 (2016)). 
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To establish liability against a public entity under the TCA 

for an injury allegedly caused by a dangerous condition of public

property, the plaintiff must show:

that 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 

[N.J.S.A.] 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.]

These elements are "accretive," which means that "if one or more

of the elements is not satisfied, a plaintiff's claim against a 

public entity alleging that such entity is liable due to the 

condition of public property must fail." Polzo v. Cty. of Essex, 

196 N.J. 569, 585 (2008).
9 A-0757-16T1

Plaintiff argues he presented sufficient evidence to show the 

icy condition of the street constituted a dangerous condition 

under N.J.S.A. 59:4-2 and the City had actual notice of that 

condition. Plaintiff maintains the photo of the street where he

fell shows markings painted in the roadway at the spot where "the 

problem was occurring." In his certification, plaintiff asserts 

that sometime after the accident, he noticed the City's employees 

digging up the street in the spot where the water and ice allegedly 

caused him to fall. 

The City argues that plaintiff has not shown that the icy 

condition where plaintiff fell was a dangerous condition under the 

TCA. The term "dangerous condition" is defined in N.J.S.A. 59:4-

1(a) as "a condition of property 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." The City 

contends plaintiff was not using the property with due care because 

he failed to cross the street at the crosswalk. The City notes 

that plaintiff crossed in the middle of the street in an effort 

to board a bus. 

We need not address this issue because plaintiff failed to 

present sufficient evidence to show the City had actual or 

constructive notice of the alleged dangerous condition. Here, 

plaintiff relies upon the markings in the street as evidence that 
10 A-0757-16T1

the City had actual notice of the condition. He did not, however,

identify the person or entity who painted the marks in the street, 

or the reason for the marks. Plaintiff asserts that sometime after 

the accident, he observed City workers digging in the spot where 

he fell, but there is no evidence that the marks or the excavation 

had anything to do with the water flowing in the street or the 

resulting icy condition.

Moreover, plaintiff failed to show that the City had 

constructive notice of the alleged dangerous condition. The mere 

"[e]xistence of an alleged dangerous condition is not constructive 

notice of [that condition]." Polzo, 196 N.J. at 581 (quoting Sims 

v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)). 

To establish constructive notice of an alleged dangerous 

condition, the plaintiff must show 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." Polzo v. 

Cty. of Essex, 209 N.J. 51, 67 (2012) (quoting N.J.S.A. 59:4-3).

Here, there is no evidence that the alleged dangerous 

condition existed before plaintiff fell. Indeed, at his 

deposition, plaintiff testified that before the accident, he had 

never seen water bubbling up in the street at the location. Thus, 

plaintiff failed to show that the alleged dangerous condition 
11 A-0757-16T1

existed for such a period of time and was of such obvious nature 

that the City, through the exercise of due care, should have 

discovered its dangerous character. N.J.S.A. 59:4-3(b). 

In addition, plaintiff failed to present sufficient evidence 

to raise a genuine issue of material fact as to whether the City's 

failure to take action regarding the alleged dangerous condition 

was palpably unreasonable. "Palpably unreasonable" means "behavior 

that is patently unacceptable under any given circumstance." 

Muhammad v. N.J. Transit, 176 N.J. 185, 195 (2003) (quoting Kolitch 

v. Lindedahl, 100 N.J. 485, 493 (1985)). When a public entity acts 

in a palpably unreasonable manner, it should be "obvious that no 

prudent person would approve of its course of action or inaction."

Id. at 196 (quoting Kolitch, 100 N.J. at 493). 

In this case, plaintiff presented no evidence showing that 

the City had received complaints regarding the alleged dangerous 

condition in the street. There also was no evidence of how long 

the condition existed before plaintiff fell. Thus, plaintiff 

failed to present sufficient evidence to raise a genuine issue of 

material fact as to whether the City's failure to address the 

alleged dangerous condition was palpably unreasonable.

III. 

Plaintiff further argues that he presented sufficient 

evidence to raise a genuine issue of material fact as to whether 
12 A-0757-16T1

he met the threshold for the award of pain and suffering damages 

under N.J.S.A. 59:9-2(d). The statute provides that in an action

under the TCA against a public entity or public employee, a 

plaintiff may not be awarded damages for pain and suffering 

resulting from any injury unless the plaintiff presents evidence 

of a "permanent loss of a bodily function, permanent disfigurement 

or dismemberment where the medical treatment expenses are in excess 

of $3,600.00." Ibid.

The City concedes that in this matter, plaintiff's medical 

expenses exceeded $3600. The City argues, however, that plaintiff 

failed to present sufficient evidence to show he suffered a 

permanent dismemberment or permanent loss of a bodily function. 

The City notes that in his deposition testimony, plaintiff 

indicated that he still engages in his normal activities and only 

has minor inconvenience.

Plaintiff argues that he sustained a permanent loss of a 

bodily function. He fractured his right ankle, which required open 

reduction and internal fixation of the ankle. He states that the 

hardware remains in his ankle and causes him significant pain. 

Plaintiff claims he cannot stand or walk for prolonged periods of 

time. He also claims he has pain when he walks and tries to sleep 

at night. He alleges that due to his injury, his daily activities 

are limited. 
13 A-0757-16T1

In view of our determination that summary judgment was 

properly granted to the City because plaintiff failed to present 

sufficient evidence to support a claim under N.J.S.A. 59:4-2 for 

the alleged dangerous condition of public property, we need not 

address the question of whether plaintiff satisfied the threshold

for pain and suffering damages under N.J.S.A. 59:9-2(d).

Affirmed.