DIANA CHAMBERLAIN v. CITY OF WILDWOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3424-12T1

DIANA CHAMBERLAIN and

FRANK CHAMBERLAIN,

Plaintiffs-Appellants,

v.

CITY OF WILDWOOD,

Defendant-Respondent.

_______________________________

October 28, 2013

Argued September 18, 2013 - Decided

Before Judges Lihotz and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-662-11.

Thomas P. Lutz argued the cause for appellants.

Erin R. Thompson argued the cause for respondent (Powell, Birchmeier & Powell, attorneys; Ms. Thompson, on the brief).

PER CURIAM

Plaintiff Diana Chamberlain1 appeals from the grant of summary judgment dismissing her complaint against defendant City of Wildwood, seeking damages for injuries she suffered in a fall on the Wildwood boardwalk. Plaintiff maintains the judge erred in determining there were insufficient facts in evidence to show defendant had constructive notice of a dangerous condition. We disagree and affirm.

These facts are taken from the summary judgment record and viewed "in the light most favorable to the non-moving party." Murray v. Plainfield Rescue Squad, 210 N.J.581, 584 (2012) (citations omitted). See alsoR.4:46-2(c).

While strolling on the Wildwood boardwalk with her family on the afternoon of May 8, 2010, plaintiff tripped and fell, injuring her knee and shoulder. Responding to interrogatories, plaintiff stated she caught her foot on a board not safely fastened down. She acknowledged she was looking forward as she walked and not looking at the ground. During depositions, plaintiff also revealed she purchased flip flops, which she wore instead of the wedged sandals she was previously wearing.

During her deposition, plaintiff was asked to describe her fall and stated she was "just walking along and all of a sudden, I just went down." Asked whether something caused her to stumble, she responded: "All I know is I just went down[.]" When helped to her feet, plaintiff did not look around to see what caused her fall and acknowledged she could not "point to the board or where on the boardwalk it was that [she] fell." Following her fall, plaintiff never returned to the Wildwood boardwalk.

Plaintiff's adult grandson Ryan Gallagher was walking in front of her when she fell. Gallagher testified in his deposition that plaintiff pointed to the area she believed caused her fall. He described the boards in that area as uneven and there was a gap so that "one was higher than the other." Gallagher stated the planks he viewed were "rickety, like dilapidated, old." He further described a board as "faded and it was uneven. There were cracks throughout it." Gallagher was certain only one board was raised and he guessed plaintiff "caught the tip of her foot on it and she fell." When asked to state the distance discrepancy between the identified board, he explained, "[i]t wasn't that much" estimating it to be "an inch-and-a half, two inches."

On the evening of plaintiff's fall, her husband Frank Chamberlain attempted to file an incident report with the Wildwood police department. Mr. Chamberlain asserts the police told him no report was necessary because they knew "the boardwalk [wa]s in bad shape."

Two days after plaintiff's fall, Gallagher and Mr. Chamberlain returned to the boardwalk. Gallagher believed he recognized the area of the accident, but could not locate the raised board that allegedly caused plaintiff's fall. He photographed various areas of the boardwalk in the approximate location of plaintiff's fall. When shown these photographs, plaintiff could not identify the site as the spot where she fell.

After the accident, plaintiff went home and noticed her left knee was swollen and black and blue. Her daughter drove her to Shore Memorial Hospital's emergency room for treatment. Hospital records show treatment was rendered to plaintiff's right knee. Thereafter, plaintiff saw her family doctor and a specialist, who performed outpatient, arthroscopic surgery on her left knee, which was followed by three sessions of physical therapy. Plaintiff's physician believed the injury was permanent and recommended plaintiff undergo knee replacement surgery.

Plaintiff also engaged a construction expert, Mark Koochembere, who stated the boardwalk surface was defective as nails failed to properly secure the planks, which loosened and lifted. He recommended the planks should have been secured using wood screws.

Plaintiff filed her tort claims action. At the close of discovery, defendant moved for summary judgment. Defendant argued plaintiff failed to prove her fall was caused by a dangerous condition on public property and even if a dangerous condition existed, plaintiff did not show defendant had actual or constructive notice of the alleged dangerous condition or that its actions in addressing conditions on its property were palpably unreasonable. On February 12, 2013, the judge granted the motion and dismissed plaintiff's complaint. This appeal ensued.

Our review of the trial court's decision is governed by well-established principles. In our review of a grant or denial of summary judgment, we employ the same standard used by the trial court. Murray, supra, 210 N.J.at 584. Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R.4:46-2(c).

"[A] determination whether there exists a 'genuine issue' of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The moving party must demonstrate there is no issue of material fact and the non-moving party will not succeed by merely pointing to any disputed fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Defendant is a public entity, requiring the claimed liability be judged against the immunity provisions of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :12-3, which serves as "the statutory mechanism through which our Legislature effected a waiver of sovereign immunity." D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 133 (2013). We recognize "the 'guiding principle' of the [TCA] is 'that immunity from tort liability is the general rule and liability is the exception.'" Id. at 134 (quoting Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 488 (2005) (internal quotation marks and citations omitted)). Accordingly, "a public entity is 'immune from tort liability unless there is a specific statutory provision' that makes it answerable for a negligent act or omission." Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002)).

A public entity may be liable for injury caused by the dangerous 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

. . . .

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.]

The TCA defines "public property" as property that is "owned or controlled by the public entity." N.J.S.A. 59:4-1(c). Further, a "'"[d]angerous condition" means 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.'" Roman v. City of Plainfield, 388 N.J. Super. 527, 534 (App. Div. 2006) (quoting N.J.S.A. 59:4-1(a)).

[T]o be considered a "substantial risk of injury" a condition of property cannot be minor, trivial, or insignificant. However, the defect cannot be viewed in a vacuum. Instead, it must be considered together with the anticipated use of the property to determine whether the condition creates a substantial risk of injury and, therefore, qualifies under the statute as dangerous.

[Atalese v. Long Beach Twp., 365 N.J. Super. 1, 5 (App. Div. 2003).]

"Thus, 'when a public entity creates or suffers a dangerous condition on public property that leads ineluctably and foreseeably to injury, it is not insulated from liability under N.J.S.A. 59:4-2. . . .'" Seals v. Cnty. of Morris, 210 N.J. 157, 179 (2012) (quoting Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 217 (2004)).

"Public-entity liability may also be based on the entity's actual or constructive notice of a dangerous condition if its failure to protect against the danger is palpably unreasonable." Polzo, supra, 209 N.J. at 67. "The term 'palpably unreasonable'--as used in N.J.S.A. 59:4-2--'implies behavior that is patently unacceptable under any given circumstance.'" Id. at 75-76 (quoting Muhammad v. N.J. Transit, 176 N.J. 185, 195-96 (2003)). "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 76 (quoting Muhammad, supra, 176 N.J. at 195-96).

On appeal, plaintiff argues, as she did before the motion judge, the evidence presented was sufficient to withstand summary judgment dismissal of her complaint and allow the question of whether defendant had notice of a dangerous condition to be determined by a jury. To prevail, plaintiff must show the boardwalk was left in a "dangerous condition" creating "a reasonably foreseeable risk" of a fall by a pedestrian. N.J.S.A. 59:4-2. "Only if plaintiff can prove these elements do we turn to the next step: whether the public entity . . . 'had actual or constructive notice of the dangerous condition' within 'a sufficient time' before the accident that it could 'have taken measures to protect against [it.]'" Polzo supra, 209 N.J. at 66 (quoting N.J.S.A. 59:4-2(b)). Further, "if plaintiff has met all of these elements, the public entity still will not be liable unless the public entity's failure to protect against the dangerous condition can be deemed 'palpably unreasonable.'" Ibid. (quoting N.J.S.A. 59:4-2). When viewed in the light most favorable to plaintiff, we cannot conclude the summary judgment record presents sufficient evidence to satisfy the statutory requirements to allow imposition of liability upon defendant.

As a rule, "[w]hether property is in a 'dangerous condition' is generally a question for the finder of fact." Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 123 (2001). Courts analyzing whether conditions of walkways or road surfaces are "dangerous" within the meaning of the TCA typically review measurements of the gap, crack or other surface defect said to have caused the plaintiff's injury. See, e.g., Charney v. City of Wildwood, 732 F. Supp. 2d 448, 456 (D.N.J. 2010) (finding a one and one-half inch deep, one and one-quarter inch wide triangular hole in boardwalk was not a dangerous condition). Such an analysis cannot be made in this matter as plaintiff offers only a general notion the boardwalk's condition, stating it was "obviously defective." We conclude this is insufficient to prove a dangerous condition existed.

Plaintiff identified only a general area of her fall, unable to precisely show the location. Further, she admitted she never looked at the boards after her fall and cannot point to a declivity or raised board as the cause of her fall. Although plaintiff does not remember doing so, Gallagher remembered plaintiff pointing to an area where he observed a single elevated board, raised more than an inch higher that those abutting it, assuming it was the cause of his aunt's fall. Reviewing this evidence we determine plaintiff's assertions that a loose or raised board existed on the boardwalk and caused her fall are mere speculation. Neither plaintiff nor her accompanying family saw the condition causing the fall. Although Gallagher believed the board he viewed must have caused plaintiff's fall, his testimony was equivocal and his later attempts to find the board proved unsuccessful.

Assuming Gallagher's testimony sufficiently created a factual dispute regarding whether a deviation in the height among the boardwalk's planks constituted a harmful tripping hazard to allow a jury to conclude the differential created a substantial risk of injury to a pedestrian like plaintiff, we consider whether evidence of actual or constructive notice to defendant was demonstrated. We agree with the judge this motion record is insufficient to create a genuine issue of material fact as to whether defendant had actual or constructive notice of the dangerous condition prior to plaintiff's injury.

Plaintiff relies on photographs of the boardwalk's unevenness to impute defendant's constructive notice of the existence of what she calls "an ignored, obvious dangerous condition." We reject this notion, as the photographs merely depict the kind of minor imperfections expected in an outdoor wooded walkway. See, e.g., Charney, supra, 732 F. Supp. 2d at 456 (stating "pedestrians must expect some areas of imperfection on walkway surfaces, and not every defect in a walkway surface is actionable"). Equally unpersuasive is plaintiff's reliance on a comment attributed to an unidentified Wildwood police officer that the boardwalk was "in bad shape." Also, plaintiff's expert evidence does not establish defendant replaced the identified defective board, which would suggest notice of the defect.

The mere "[e]xistence of an alleged dangerous condition is not constructive notice of it." Sims v. City of Newark, 244 N.J. Super. 32, 44 (Law Div. 1990). In the absence of evidence defendant had notice--actual or constructive--of the nature of the defect identified by plaintiff, the unavoidable conclusion is plaintiff cannot meet her burden under the TCA. Absent defendant's constructive notice of the dangerous condition of its boardwalk, which "created a reasonably foreseeable risk" of injury that defendant failed to correct before plaintiff's accident, N.J.S.A. 59:4-2 precludes a basis for recovery. Polzo, supra, 209 N.J. at 66 (citing Vincitore, supra, 169 N.J. at 124-25). Accordingly, the summary judgment dismissal of plaintiff's action was properly ordered.

1 In our opinion we refer to Diana Chamberlain as plaintiff, although we recognize Frank Chamberlain, her husband, also has filed a derivative claim for loss of consortium.