GERTRUDE MOODY et al. v. CITY OF WILDWOOD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2977-04T12977-04T1

GERTRUDE MOODY and

JAMES MOODY,

Plaintiffs-Appellants,

v.

CITY OF WILDWOOD,

Defendant-Respondent,

and

BOROUGH OF WILDWOOD CREST,

MOREY'S PIERS, and CAPE MAY COUNTY

Defendants.

 
 

Submitted December 7, 2005 - Decided January 24, 2006

Before Judges Conley and Weissbard.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, L-3378-03.

Shebell & Shebell, attorneys for appellants

(Danielle S. Chandonnet, on the brief).

Marcus H. Karavan, attorney for respondent

(Dorothy Incarvito-Garrabrant, on the brief).

PER CURIAM

Plaintiffs Gertrude Moody and James Moody appeal from a summary judgment dismissing their personal injury lawsuit against defendant, City of Wildwood. We affirm.

On June 23, 2003, plaintiffs filed suit, naming the City of Wildwood, Borough of Wildwood Crest, Morey's Piers, and Cape May County as defendants. Thereafter, a stipulation of dismissal was entered as to Cape May County. On December 19, 2003, summary judgment was granted in favor of the Borough of Wildwood Crest on the ground that the Borough does not have a boardwalk within its boundaries. Subsequently, a stipulation of dismissal was entered as to Morey's Piers.

On December 10, 2004, defendant moved for summary judgment. On January 7, 2005, Judge William E. Nugent granted defendant's motion, supported by a Memorandum of Decision.

On appeal plaintiff argues that the evidence, viewed in the light most favorable to her, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), was sufficient to demonstrate that defendant permitted a dangerous condition to exist on its property and that its failure to remedy that condition was palpably unreasonable. She also contends that her injuries were sufficiently serious to overcome the Tort Claims Act threshold. N.J.S.A. 59:9-2. We disagree with plaintiff's first argument and, therefore, find no need to address the second.

A brief review of the facts is necessary to assess plaintiff's contention. On July 18, 2002, plaintiff, who was sixty-six years old at the time, traveled to Wildwood with her husband, daughter, and two grandsons. When they arrived at the boardwalk, plaintiff and her family ate lunch and then took the children to ride the go-carts and enjoy various games and rides on the boardwalk. At approximately 4:00 or 4:30 p.m., plaintiff, her daughter, and her two grandsons took a walk along the boardwalk because her daughter was looking for a restroom. Plaintiff was "walking with a sense of urgency" so that her daughter could find the ladies' room and plaintiff could sit down and wait for her.

As plaintiff was walking near the 26th Street end of the boardwalk area, her foot suddenly "got hooked on one of the boards," causing her to fall forward onto the ground. Although she put her left arm out in an attempt to break her fall, her whole body struck the boardwalk. A passer-by called the police, and plaintiff was soon transported to the hospital. At the hospital, x-rays revealed that her left arm was broken; the arm was put in a cast. Plaintiff also suffered numerous bruises on her elbows and knees. As a result of our disposition, we see no need to set forth further detail concerning plaintiff's injuries.

The relevant provision of the Tort Claims Act, N.J.S.A. 59:4-2, reads as follows:

A public entity is liable for 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

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 subsection 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. 59:4-3, the provision governing notice of a dangerous condition, provides:

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.

A "dangerous condition" within the meaning of N.J.S.A. 59:4-2 is "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." N.J.S.A. 59:4-1. The mere existence of a defect is insufficient to demonstrate a dangerous condition. Only those defects that create a "substantial risk of injury" are actionable under the Tort Claims Act. Polyard v. Terry, 160 N.J. Super. 497, 508 (App. Div. 1978), aff'd, 79 N.J. 547 (1979). A "substantial risk" is one that is "not minor, trivial, or insignificant." Id. at 509.

Plaintiff's expert stated, in pertinent part, in his report of January 8, 2004:

On December 17, 2003, an inspection was made of the boardwalk area at easterly end of 26th Avenue in Wildwood, New Jersey.

Said boardwalk from westerly edge, has a wooden planked area, concrete section for trams, and thence wooden planked section. Particular attention had been directed within the center wooden planked area. Approximately one and one-half (1-1/2) feet south of the northerly edge, one of the wooden sections has evidently began to deteriorate, with surface of same having broken away, creating a void. It is so located, that persons proceeding thereon could be easily caused to trip and fall.

. . . .

The deteriorated boardwalk condition took quite sometime to develop. With proper periodic inspection of this structure, it could easily have been observed, with the board in question thence being removed and replaced.

Said surface void, or depression, within this boardwalk area, certainly presented a hazardous impediment, or obstruction, within one's path of travel. Persons proceeding over same could be easily caused to trip and fall.

This boardwalk is swept, cleared of surface debris, and evidently, periodic inspections were conducted. Certainly, said surface depression had been observed during these procedures.

The expert concluded that the condition of the boardwalk violated applicable standards and was "palpably unreasonable" and "a nuisance in the public way," the correction of which "would require very little time, effort and cost." The expert took a number of photos of an area of the boardwalk, one of which depicts a somewhat rough area of one board. However, during her deposition, plaintiff was shown those pictures as well as other pictures which apparently were taken by plaintiff's daughter in her presence "maybe two weeks after the fall." While plaintiff did mark one or more pictures as representing the area where she fell, she was, for the most part, vague and, most importantly, never identified the allegedly defective board, the "void" or "depression" referred to in the expert's report, as the condition that caused her to fall on July 18, 2002, seventeen months before the photos were taken.

As Judge Nugent pointed out in his written decision, the expert never stated that plaintiff was present when he conducted his examination nor, of course, that she pointed out to him the condition that caused her to fall. Further, in response to the summary judgment motion, plaintiff did not submit a certification pinpointing the place of her fall and the allegedly defective condition in the boardwalk shown in any of the photos. Thus, we agree with the motion judge that plaintiff failed to present evidence of a dangerous condition sufficient to overcome the summary judgment hurdle, as low as it may be.

Moreover, we also agree with the judge that plaintiff failed to produce evidence sufficient to establish that defendant's actions in maintaining the Boardwalk were "palpably unreasonable." N.J.S.A. 59:4-2. In Schwartz v. Jordan, 337 N.J. Super. 550, 555 (App. Div.), certif. denied, sub nom., Schwartz v. Plainsboro Twp., 168 N.J. 293 (2001), we explained the meaning of "palpably unreasonable" governmental behavior as follows:

We conclude that the legislative intention was to allow sufficient latitude for resourceful and imaginative management of public resources while affording relief to those injured because of capricious, arbitrary, whimsical or outrageous decisions of public servants. We have no doubt that ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff.

[quoting Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979).]

In essence, the determination of whether a public entity's conduct was palpably unreasonable turns on "whether no prudent person could approve of the governmental entity's action or inaction." Ibid. (citing State v. Holloway, 125 N.J. 386, 403-404 (1991)).

Here, it cannot be said that the City's system of inspecting, repairing, and replacing the boardwalk planks was palpably unreasonable in light of the above standard. Joseph Bartolomeo, the Supervisor of Construction and Maintenance Repair for defendant, testified that the construction department inspects the boardwalk daily for wood that is in need of maintenance and that carpenters immediately perform any necessary repairs. Additionally, the police patrol the boardwalk during the night and notify Public Works of any problems. If any boards become cracked during the night, Mr. Bartolomeo calls workers to repair the wood that same night. Bartolomeo confirmed that the daily boardwalk inspections did in fact occur in July 2002.

Furthermore, when shown the photograph of the boardwalk taken by plaintiff's expert at the alleged location of plaintiff's fall, Bartolomeo indicated that the allegedly defective board shown was not atypical for treated lumber and that it was not in "bad enough" condition to warrant replacement. He explained:

Basically, you're going to get that in any treated lumber. Anytime they're all -- it's not that it's broken or anything, but there's little knots there and they wear a little bit. That's common. With all treated lumber, you'll find that. . . . There's no reason to replace it. If it's not trippable or sticking up or anything like that, it's not really that bad. . . . It would have to be more -- real bad, rocky, soft, or stuff like that. . . . It's not that it's going to be very smooth, not like you're going to find trim in a house. There's traffic over it, you're going to have a little wear like that on all the wood . . . . If it's real bad, it's going to be replaced.

Thus, according to Bartolomeo, the wood in question displayed signs of ordinary wear from boardwalk traffic, and the type of treated wood that comprises the boardwalk is not, by its nature, completely smooth. Clearly, in order for the wood to be completely smooth and free of knots, the boards would need constant sanding and/or replacement, which is not feasible for a well-used, public walkway. The City's system of inspecting the boardwalk daily and replacing boards that are rocky, soft, or protruding is not a method that "no prudent person could approve of," and thus does not rise to the level of "palpably unreasonable action or inaction." Schwartz, supra, 337 N.J. Super. at 555.

Having concluded that Judge Nugent was correct in his decision that a violation of N.J.S.A. 59:4-2 was not sufficiently established to defeat summary judgment, we have no need to address his further conclusion that plaintiff did not meet the injury threshold established by N.J.S.A. 59:9-2(d).

 
Affirmed.

James Moody sued per quod. For convenience sake we will refer to Gertrude Moody, the injured party, as plaintiff.

(continued)

(continued)

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A-2977-04T1

January 24, 2006