LATONIA BOBBITT v. NEW JERSEY TRANSIT et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2471-04T22471-04T2

LATONIA BOBBITT,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT and

THE CITY OF NEWARK,

Defendants-Respondents.

__________________________________________________________

 

Submitted November 1, 2005 - Decided

Before Judges Coburn and Lisa

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, L-10562-02.

Ronald L. Washington, attorney for appellant.

Peter C. Harvey, Attorney General, attorney for

respondent New Jersey Transit (Patrick DeAlmeida,

Assistant Attorney General, of counsel; Karen L.

Jordan, Deputy Attorney General, on the brief).

Joanne Y. Watson, Corporation Counsel, attorney for respondent City of Newark (Alice T. Mireles, Assistant

Corporation Counsel, on the brief).

PER CURIAM

Plaintiff sued defendants alleging that they were responsible for the personal injuries she sustained on

January 18, 2001, when she fell over a defect in a sidewalk located in Newark. Both defendants moved for summary judgment on the grounds that they did not own the sidewalk in question and that plaintiff had failed to present evidence of actual or constructive notice. The trial judge granted the motions because of the lack of evidence showing either form of notice, and denied plaintiff's subsequent motion for reconsideration. Plaintiff appeals.

After carefully considering the record and briefs, we are satisfied that all of plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E). Nonetheless, we add the following comments.

The only evidence bearing on the subject of notice was the color photographs of the sidewalk. Plaintiff argued that a jury could infer from those photographs that the dangerous condition had existed long enough so that both defendants had constructive notice of the condition. The judge disagreed and made these findings:

THE COURT: All right, this matter comes before me on a motion for reconsideration. For purposes of this, I will assume that it's properly brought before me. Although the original submissions were extremely sketchy by the plaintiff's attorney, obviously expanded somewhat.

The case still turns on the issue, which was the primary issue for the motion of the defendants being granted last time. The fact that absent some type of testimony, looking at a crack in a photograph does not provide this court with any particular knowledge as to the length of time that that crack exists. I'm assuming that the picture is for purposes of this application fairly and accurately depict the condition of the property, at or about the time of the accident, but I still don't know whether that crack was caused by construction work done in that area five minutes, fifteen minutes, five years before the incident in question. I have no way of looking at that picture and saying the length of time of the crack. It's a little different -- I'm not saying that all conditions require expert opinion, but in this particular case without any lay testimony that the condition of the sidewalk was like that for any period of time, you might be in a situation where you might may only be able to present that through an expert saying specifically that that condition could not have been created, other than by wear and tear or erosion over a long period of time. I can't tell whether that was traumatically induced by some incident or construction, or something that took place within a short period of time of the accident, or whether it was over years of time. I have no way of doing that.

I think for a jur -- ask a jury to speculate would be exactly that, speculation as to the length of time, without some information or inference as to the length of time that condition has been there. I find that there can be no showing of constructive notice under the circumstances. . . .

 
Our review of the judge's decision is impeded by the plaintiff's failure to provide us with the color photographs submitted to the motion judge. All we have been given are unclear black and white copies of the originals. We can tell nothing from them, and therefore have no basis for disagreeing with the judge's determination. Affirmed.

(continued)

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A-2471-04T2

November 15, 2005