ANTOINETTE LUCIANO v. CITY OF ATLANTIC CITY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5251-08T3
ANTOINETTE LUCIANO and
HECTOR LUCIANO (wife
and husband),
Plaintiffs-Appellants,
v.
CITY OF ATLANTIC CITY,
Defendant-Respondent.
_______________________________________
Argued March 1, 2010 Decided March 25, 2010
Before Judges Reisner and Yannotti.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Docket No. L-2191-07.
David I. Sinderbrand argued the cause for
appellants (Law Offices of David I.
Sinderbrand, L.L.C., attorneys; Mr.
Sinderbrand, on the brief).
Grace K. Henry argued the cause for
respondent (Zarwin Baum DeVito Kaplan Schaer
Toddy, P.C., attorneys; Ms. Henry and
Timothy P. Mullin, on the brief).
PER CURIAM
Plaintiffs Antoinette Luciano (Antoinette) and Hector
Luciano (Hector) appeal from an order entered by the trial court
on April 17, 2009, granting summary judgment in favor of
defendant City of Atlantic City (City), and an order entered on
May 15, 2009, denying their motion for reconsideration. We
affirm.
Plaintiffs filed a complaint in the Law Division in which
they alleged that on January 3, 2007, Antoinette tripped on a
raised, rusted and bent over nail that was protruding upward
from the City's boardwalk. Plaintiffs alleged that the nail got
stuck in Antoinette's shoe and, as a result, she fell to the
boardwalk. Plaintiffs further claimed that the City's employees
had created the dangerous condition on its property. They
alleged that the City, through its agents, servants and
employees, had acted in a negligent, careless and reckless
manner by failing to inspect, find, repair and warn of the
dangerous condition.
They also claimed that the City, through its agents,
servants and employees, had actual and/or constructive notice of
the dangerous condition within a sufficient time prior to
Antoinette's fall "to have taken measures to protect against the
dangerous condition[,]" in accordance with N.J.S.A. 59:4-2(b).
In addition, plaintiffs asserted that the City's failure to
correct the dangerous condition was "palpably unreasonable."
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Antoinette alleged that, in the fall, she sustained
serious, permanent and disabling injuries. Hector claimed that,
as a result of the City's negligence and/or carelessness, he had
been deprived of his spouse's services and consortium.
Plaintiffs sought compensatory damages, interest and costs of
suit. At her deposition, Antoinette testified that, after she
fell, she looked at the nail. Antoinette said that the nail was
old, big and bent and "looked like it had a little rust on
it[.]" She stated that it looked as if someone had "hammered it
down."
Salvatore Catanese, Jr. (Catanese), is a Public Works
Investigator for the City's Department of Public Works, and he
is assigned to the Beach and Boardwalk Division. Catanese
testified at a deposition that sometime in the 1980's, the City
stopped using nails to secure the boards on the boardwalk and
began to use screws instead. Catanese also testified that he
inspects the boardwalk every day. He said that on January 2,
2007, he walked past the spot where Antoinette fell. He did not
observe the nail.
Catanese stated that the nails used on the boardwalk were
basically silver in color. He was shown a photograph of the
nail, which was said to depict the nail that Antoinette fell on.
Caatanese stated it looked "kind of dark." He said that, if he
A-5251-08T3
3
saw a nail in that condition, he might call a carpenter to
remove it. Catanese also said that it would be unacceptable for
a City carpenter to hammer down a raised nail in the boardwalk
unevenly, the way the nail was depicted in the picture.
On March 13, 2009, the City filed a motion for summary
judgment. In support of its motion, the City submitted an
affidavit by Catanese, in which he stated that the City's Beach
and Boardwalk Division has twenty nine full-time employees.
Eight of those employees are assigned to inspect and maintain
the boardwalk. According to Catanese, one employee "has the sole
function of inspecting the boardwalk on a daily basis." Catanese
also said that less than one percent of the City's annual budget
is devoted to the Beach and Boardwalk Division, and only about
twenty-five percent of that amount is allocated to the repair
and inspection of the beach and boardwalk.
The trial court considered the motion on April 17, 2009.
The court filed a memorandum of decision on that date, in which
it concluded that there was no genuine issue of material fact
and the City was entitled to judgment as a matter of law. The
court entered an order dated April 17, 2009, memorializing its
decision. Plaintiffs filed a motion for reconsideration, which
the court denied by order entered on May 15, 2009. This appeal
followed.
A-5251-08T3
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Plaintiffs argue that the trial court "improperly assumed"
the role of the finder of fact by granting the City's motion for
summary judgment. We disagree.
Summary judgment may 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 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
We apply these standards in reviewing a trial
fact." Ibid.
court's ruling on a summary judgment motion. Liberty Surplus
Ins. Co. v. Nowell Amoroso, P.A.,
189 N.J. 436, 445-46 (2007).
The New Jersey Tort Claims Act provides that a public
entity may be liable for an injury caused by a condition of its
property
if the plaintiff establishes 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
A-5251-08T3
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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.
[N.J.S.A. 59:4-2.]
A public entity is deemed to have "actual notice of a
dangerous condition" when it had "actual knowledge of the
existence of the condition and knew or should have known of its
dangerous character." N.J.S.A. 59:4-3(a). In addition, a public
entity is deemed to have "constructive notice" of a dangerous
condition
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(b).]
However, a public entity will not be liable 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.
In its memorandum of decision dated April 17, 2009, the
trial court noted that plaintiffs had not presented any evidence
showing that the City had actual notice of the raised and bent-
over nail on the boardwalk. The court additionally noted that
A-5251-08T3
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plaintiffs' claim that the City had constructive notice of the
nail was based on photographs of the nail that show evidence of
rust, along with the presence of an adjacent screw.
The court stated that plaintiffs had not presented evidence
showing that a City employee placed the screw on the boardwalk
or "presented evidence that establishes that the presence of
rust on the nail must mean that the nail has been exposed to the
elements for a significant period of time sufficient to give
rise to an inference of constructive notice." The court
additionally stated that plaintiffs had not presented sufficient
proof to show that the City's "failure to find and repair [the]
nail in the course of its established maintenance routine was
'palpably unreasonable.'"
Plaintiffs contend that, under N.J.S.A. 59:4-2, they are
not required to prove notice of a dangerous condition if an
employee of a public entity created the dangerous condition by
"a negligent or wrongful act or omission[.]" Plaintiffs'
argument fails, however, because they did not submit sufficient
evidence to show that a City worker created the alleged
dangerous condition.
Although it might be reasonable to infer that a City
employee placed the screw in the boardwalk, the record does not
indicate when that might have happened. Moreover, there is no
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basis for assuming that the placement of the screw caused the
nail to protrude from the board, and no basis for any inference
that the failure to remove the nail was "a negligent or wrongful
act or omission[.]"
Thus, plaintiffs were required to show that the City had
actual or constructive notice of the alleged dangerous
condition. As stated previously, plaintiffs did not present any
evidence showing that the City had actual notice of the raised
nail. They argue, however, that there was sufficient evidence
from which a reasonable fact finder could infer that the City
had constructive notice of the condition.
Again, we disagree. Plaintiff failed to present sufficient
evidence to establish that the condition on the boardwalk
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
59:4-3(b). As we stated previously,
character." N.J.S.A.
Catanese testified that he did his daily walk-through in the
area where Antoinette fell on the day before the accident. He
did not observe the nail. The City's workers were several blocks
away on the same day. It is highly improbable that they observed
a nail from that distance. The nail apparently showed signs of
rust, but the record did not indicate when the rust formed.
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Plaintiff did not present sufficient evidence to allow a
reasonable jury to draw an inference as to the length of time
the alleged dangerous condition existed.
Furthermore, even were we to assume that plaintiffs had
presented sufficient evidence to raise an issue of fact as to
whether a City employee created the alleged dangerous condition
and whether the City had constructive notice of that condition,
plaintiffs failed to present sufficient proof to show that the
City's action to protect against the alleged dangerous
condition, or its failure to take such action, was palpably
unreasonable. As the trial court observed in a letter dated
April 21, 2009, responding to a letter by plaintiffs' attorney
citing additional legal authority, "one nail on a [four and one-
half] mile [b]oardwalk is not even a scintilla of proof that the
City of Atlantic City was palpably unreasonable with regard to
maintenance of this public promenade."
Affirmed.
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