SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0305-18T4

JENNIFER S. INGENITO,

Plaintiff-Appellant,

v.

BOROUGH OF ATLANTIC 

HIGHLANDS, 

Defendant-Respondent,

and

COMPASS CONSTRUCTION, 

INC., and BIRDSALL 

ENGINEERING, INC.,

Defendants.

__________________________

Argued October 10, 2019 – Decided July 13, 2020

Before Judges Nugent and Suter.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Docket No. L-2179-11.

NOT FOR PUBLICATION WITHOUT THE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.
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Vincent P. Manning argued the cause for appellant 

(Manning Caliendo & Thomson, PA, attorneys; 

Vincent P. Manning, of counsel and on the briefs).

Jason R. Hawrylak argued the cause for respondent 

(Wisniewski & Associates LLC, attorneys; Jason R. 

Hawrylak, on the brief).

PER CURIAM

Plaintiff, Jennifer Ingenito, appeals the summary judgment dismissal of 

her personal injury complaint, which alleged she fell from her bike and sustained 

serious injuries as she rode off a wooden bridge on public property of defendant,

the Borough of Atlantic Highlands ("Borough"). Because we conclude genuine 

issues of material fact should have precluded summary judgment—mostly 

because the scant record leaves many critical facts disputed and unresolved—

we reverse and remand. 

I.

A.

Plaintiff filed a three-count personal injury complaint in May 2011. She 

alleged she was injured while bicycling through a scenic trail in the Borough. 

Her accident happened when, while "coming off a bridge which connects the 

trail to the Atlantic Highlands Harbor Commission property, . . . she was caused 
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to fall off her bicycle due to a steeply sloped section of asphalt pavement on said 

trail[.]" 

In the complaint's first count, she alleged a cause of action against the 

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

designing, constructing, managing, supervising, and maintaining a dangerous 

condition of public property. In the second count, she alleged defendant 

Compass Construction, Inc. ("Compass") negligently designed, installed, and 

constructed the bridge and area around it. In the third count, she alleged 

defendant Birdsall Engineering, Inc. ("Birdsall") negligently planned and 

designed the portion of the trail and bridge where she fell. 

Defendants filed answers but discovery was delayed when Birdsall filed 

for bankruptcy and the trial court dismissed plaintiff's complaint without 

prejudice pending completion of the bankruptcy proceedings. The court 

reinstated plaintiff's complaint in January 2018. Defendants moved for 

summary judgment. The trial court granted summary judgment to the Borough 

and Compass but denied summary judgment to Birdsall. Plaintiff and Birdsall 

later settled, after which plaintiff appealed the order granting the Borough 

summary judgment. 
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B.

The summary judgment motion record, construed in the light most 

favorable to plaintiff as the non-moving party, Petro-Lubricant Testing Labs., 

Inc. v. Adelman, 233 N.J. 236, 256 (2018), includes the following facts. 

Plaintiff was injured in May 2009 while bicycling on the Bayshore Trail

("Trail") in the Borough. The Trail is over 8000 feet long, is constructed mostly 

of asphalt, and runs in a general east-west direction. A wooden bridge spans a 

section of the Trail. 

The westerly end of the bridge abuts an asphalt portion of the Trail. There, 

"the side flare has a gradient of over twenty-five (25) percent," which according 

to plaintiff's engineering expert, "is quite steep." The expert asserted this steeply 

sloped side flare created a hazardous and unsafe condition to walkers and those 

on bicycles. The expert opined the construction and maintenance of this section 

of the Trail is contrary to specific general safety practices and rules prevailing 

in the industry, which he cited in his report. Although "the trail leading up to 

[the] bridge, with [the] exception of [the] side flare, is protected on one side 

with fencing and on the opposite side, a grassed area[,]" there was "no type of 

guard to prevent persons from riding over" the sloped side flare.
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Plaintiff's expert noted the side flare exceeded the permissible gradient 

and was missing a guardrail. He also noted a dedication ceremony was 

conducted near the site of the accident, so the "steeply pitched surface, as noted, 

was certainly observed and some type of guard could easily have been erected 

to protect persons." He opined that relocation of the Trail or a "field change" 

without re-engineering to account for a different location "violated engineering 

standards and caused this bridge to be located at a place where it created the 

hazard which caused plaintiff's injuries." 

Plaintiff described the accident during her deposition. Riding in a 

westerly direction, as she neared the bridge, she saw "a gentleman and a young 

girl" on the bridge, to her right, straddling their bicycles. She believed they 

were waiting for a young boy, who was approaching them. The young boy was 

approaching from the opposite direction she was riding. The boy appeared to 

be nervous as he saw plaintiff riding over the bridge. She had to make a sharp 

left turn to avoid hitting the young boy. Unaware of the severely pitched side 

flare, she fell from her bike into a ditch and was severely injured. 

The engineer who signed off on the plans for the Trail was Katherine 

Elliott, who worked for Birdsall. She testified during her deposition she 

"inherited" the project from a previous engineering firm when the Borough 
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appointed Birdsall as the Borough engineer. When she inherited the project, the

plans were "construction ready." She made some minor revisions—none in the 

vicinity of plaintiff's accident—and signed off on them. 

Elliott testified in her deposition: "No, [the Trail] was not constructed as 

shown on the plans." She explained the bridge was constructed at a location 

different from that shown on the plans. It was constructed further to the north. 

She did not observe how its construction differed from the plans until after the 

Trail was constructed. 

According to Elliott, the bridge was relocated from its original designed 

site because its final location provided for a more scenic view of the Sandy Hook 

Bay "and also the original design location ran not only the bridge but part of the 

trail to the active drainage site and it would have conflicted with dredging 

operations." The recommendation was made to Elliott by a Borough official at 

a pre-construction meeting that took place in the summer of 2008. She made no 

further plans for the move because there were construction details already on 

the plan. 

Elliott further explained the asphalt placed toward the drainage ditch, 

described as the side flare, was not part of the accessible route. The side flare 

was capped "to prevent the exposed soil from eroding and to provide drainage, 
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basically positive drainage off the ramp itself as the shoulder and as a soil table 

measure." The asphalt section that continued off of what Elliott described as 

the "accessible route" and into the drainage ditch was not part of the original 

design, nor was it a part of the design added by Elliott. Rather, according to 

Elliott, another Birdsall employee, Corey Germano, made the decision to asphalt 

the portion that sloped into the drainage ditch. In fact, according to Elliott, 

Germano made the decision to asphalt the sloped portion into the drainage ditch 

before even consulting with Elliott about the decision. 

Elliot attended a ribbon-cutting ceremony when the Trail was complete. 

She testified the ceremony took place in the vicinity where the accident later 

occurred. Pressed, she testified the accident took place "right where the ribbon 

cutting occurred." According to Elliott, after plaintiff's accident occurred "a 

planter had been placed at the corner by the [B]orough." 

In support of its summary judgment motion, the Borough submitted a 

certification of its Business Administrator. The certification does not appear to 

be based on personal knowledge. The Business Administrator certified that 

when the Borough council approved the plan and design of the Trail prepared 

by Birdsall, "the proposition of moving the [T]rail as shown on the plans a short 

distance north was presented to the Council." The Business Administrator 
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added, "[a]fter reviewing the plans and documents, the Council approved the 

plan and design of the Trail with the knowledge that the Trail would be moved 

further north than was depicted so as to avoid a dredge pit area in the location 

where the [T]rail was original[ly] planned to be built." 

The Business Administrator averred the approval is codified in Resolution 

068-2008. This resolution was adopted on April 9, 2008. Although the Business 

Administrator states in his certification that "Birdsall Engineering informed the 

Borough that no new plans needed to be constructed to show the move further 

north because the plans and construction details already called for what was 

necessary to construct the trail[,]" the Business Administrator does not identify 

the Birdsall employee who made such representations, state when they were 

made, or state where they were made.

The Borough also presented the deposition testimony of Corey Germano, 

Birdsall's "construction observer" and the construction supervisor for the Trail 

project. Germano, by his own testimony, "was not privy to any plans." He 

received plans the day of the pre-construction meeting. He testified construction 

was done in accordance with the plan that was prepared by Elliott and signed by 

her. 
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The trial court granted summary judgment to the Borough. The court 

determined the Borough had established design immunity. The court further 

determined plaintiff had failed to establish a genuinely disputed issue of material 

fact as to whether the Borough's property was in a dangerous condition that 

caused plaintiff's injuries.

II.

On appeal, plaintiff argues the court erred because genuinely disputed 

issues of material fact existed as to both issues. Plaintiff contends the court 

overlooked the requirement that the specific defective condition of public 

property that causes injury must have been encompassed with an approved 

design. Plaintiff also argues the court's determination that the Borough had no 

notice, actual or constructive, of the dangerous condition, was erroneous 

because it was in part created by the Borough. 

The Borough argues the court correctly determined the Borough had 

design immunity because even though the bridge was moved, details of the 

actual bridge's construction were provided in the plans. Acknowledging the 

"'defect' in question . . . is the alleged steep slope of the side flare of the 

bridge[,]" the Borough insists the trial court correctly found "all evidence of 

record indicates that that side flare was designed and constructed in accordance 
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with the approved plans." The Borough also argues plaintiff cannot establish 

the Borough had either actual or constructive notice of the dangerous condition.

III.

We review a trial court's order granting summary judgment under settled 

standards. A trial court's order granting summary judgment is entitled to no 

"special deference" by an appellate court and is subject to de novo 

review. Cypress Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 415 

(2016) (citation omitted). Appellate courts "review the competent evidential 

materials submitted by the parties to identify whether there are genuine issues 

of material fact and, if not, whether the moving party is entitled to summary 

judgment as a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) (citing 

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Here, we 

conclude genuine issues of material fact preclude the grant of summary 

judgment.

A.

We first address design immunity. The TCA provides:

Neither the public entity nor a public employee is liable 

under this chapter for an injury caused by the plan or 

design of public property, either in its original 

construction or any improvement thereto, where such 

plan or design has been approved in advance of the 

construction or improvement by the Legislature or the 
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governing body of a public entity or some other body 

or a public employee exercising discretionary authority 

to give such approval or where such plan or design is 

prepared in conformity with standards previously so 

approved.

[N.J.S.A. 59:4-6(a).]

The Borough was required to establish plan or design immunity. "It is 

well established that the burden is on the public entity both to plead and prove 

its immunity under our Act." Wymbs v. Twp. of Wayne, 163 N.J. 523, 539

(2000) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985)). Moreover, 

plan or design immunity turns on whether "the public entity has approved the 

feature in question so as to immunize it from challenge." Manna v. State, 129 

N.J. 341, 353 (1992). "In other words, 'the public entity must establish that an 

approved feature of the plan sufficiently addressed the condition that is causally 

related to the accident.'" Ibid. (quoting Thompson v. Newark Hous. Auth., 108 

N.J. 525, 536 (1987)). Although a public entity need not show each feature of 

a plan was specifically considered and rejected, it must "offer evidence that it 

had considered the general condition about which a plaintiff complains in 

formulating the original plan or design." Luczak v. Twp. of Evesham, 311 N.J. 

Super. 103, 109 (App. Div. 1998).
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Here, the Borough did not produce the plans Elliott signed. Nor did the 

Borough have someone testify that asphalting the steep slope adjacent to the 

Trail and bridge—and not providing a protective barrier—was specified or 

considered before the plan was approved by the Borough's 2008 resolution. The 

Borough produced no evidence that the bridge in its originally designed location 

was near a drainage ditch, or that such ditch was required to be constructed as 

part of the design plan. And of course, such testimony would have been 

contradicted by Elliott's testimony. Even if the Borough Council had considered 

moving the bridge when it adopted its resolution in April 2008, Elliott was 

unaware the governing body was considering moving the bridge until a preconstruction job meeting later that summer. 

The Business Administrator's certification is incompetent because it does 

not establish it was based on personal knowledge as required by Rule 1:6-6. But

even if it is considered, it at most creates a factual dispute to be resolved by the 

jury. The Business Administrator avers that when the Borough Council 

approved the Birdsall plans, "the proposition of moving the trail as shown on 

the plans a short distance north was presented to the Council." The "presenter's" 

identity is not disclosed, so no one can determine from the certification who 

allegedly made the presentation. 
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Further along in his certification, the Business Administrator identifies 

the actor as "Birdsall Engineering," who also allegedly informed the Borough 

no new plans would be needed to show the move because the plan details 

previously called for what was necessary to construct the Trail. Elliott, who 

signed the plans, testified she did not know about the move until a preconstruction meeting in the summer of 2008. Germano, who oversaw the 

construction, had nothing to do with the plans until he was provided a copy at 

the pre-construction meeting. 

In any event, even if the Business Administrator's certification is given 

any credence, it is contradicted by Elliott and thus, at best, creates a factual 

dispute about whether the Borough Council considered the relocation of the 

bridge when it adopted the 2008 resolution. Furthermore, as previously noted, 

the specific dangerous condition—the steeply sloped, unguarded side flare—had 

never been considered by Elliott by April 2008 when the Borough Council 

adopted the resolution. Paving the slope was a decision allegedly made later by 

Germano. 

In short, based on the proofs on the summary judgment motion record, 

there was at minimum a genuinely disputed issue of material fact concerning 
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design immunity. The Borough was not entitled to design immunity as a matter 

of law.

B.

There were also genuinely disputed issues of material fact as to whether 

the Borough's property was in a dangerous condition when plaintiff fell. To 

establish a public entity's liability for a dangerous condition of property under 

the TCA, a plaintiff must establish:

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 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.]
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The Borough argues plaintiff's proofs were insufficient to create a 

genuinely disputed issue of material fact concerning two elements of this cause 

of action. Specifically, the Borough argues there is no evidence from which a 

fact finder could conclude the Borough had actual or constructive notice of the 

dangerous condition, and there is no evidence from which a fact finder could 

conclude the Borough's inaction was palpably unreasonable. We disagree.

First, a fact finder could conclude it was reasonably foreseeable that an 

unguarded, steeply-sloped side flare to a ditch, adjacent to a recreational trail

and bridge, created a risk to bicyclists and joggers of precisely the type of 

accident that befell plaintiff. Actual and constructive notice are defined in the 

TCA:

a. A public entity shall be deemed to have actual 

notice of a dangerous condition within the meaning of 

subsection b. of section 59:4-2 if it had actual 

knowledge of the existence of the condition and knew 

or should have known of its dangerous character. 

b. A public entity shall be deemed to have 

constructive notice of a dangerous condition within the 

meaning of subsection b. of section 59:4-2 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.]
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The facts plaintiff developed on the motion record create a factual dispute 

as to whether the Borough had actual or constructive notice. Plaintiff 

established through Elliott's testimony that the ribbon-cutting ceremony took 

place at the location where plaintiff fell from her bike. A fact finder could infer 

from that testimony that public officials were present at the site and observed 

the condition. There is a question of fact as to whether the proximity of the 

unguarded slope to the bridge and path created a readily discernible, obvious 

risk of danger, and there is also a question of fact as to whether Borough officials 

knew or should have known of its dangerous character. These issues should be 

decided by the fact finder.

Plaintiff also argues the Borough created the dangerous condition by 

directing the relocation of the bridge to the site where it was constructed. We 

reject this argument. That decision did not create the paved slope to the ditch 

adjacent to the bridge and asphalt path.

The Borough next argues its failure to take action to protect against the 

dangerous condition was not palpably unreasonable. "Palpable 

unreasonableness is a question of fact." Vincitore v. N.J. Sports & Exposition

Auth., 169 N.J. 119, 130 (2001) (citing Furey v. Cty. of Ocean, 273 N.J. Super. 

300, 313 (App. Div. 1994)). Thus, if the fact finder determines the paved slope 
17 A-0305-18T4

was a dangerous condition of the Borough's property, it must also determine 

whether it was palpably unreasonable not to take any action to guard against the 

danger. Ibid. 

Reversed and remanded. We do not retain jurisdiction.