LEWIS et al. v. BOROUGH OF WILDWOOD CREST

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6630-05T16630-05T1

LEWIS and FRANCES MOREY,

Plaintiffs-Appellants,

v.

BOROUGH OF WILDWOOD CREST,

Defendant-Respondent.

_____________________________________________

 

Argued September 25, 2007 - Decided

Before Judges Skillman and Winkelstein.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-7051-05.

John C. Eastlack, Jr., argued the cause for appellants (Holston, MacDonald, Uzdavinis, Eastlack, Ziegler & Lodge, attorneys; Mr. Eastlack, Jr., of counsel and on the brief).

James P. Savio argued the cause for respondent.

PER CURIAM

On June 19, 2002, plaintiff Lewis Morey was watching his son play baseball at the Little League field in the Borough of Wildwood Crest. During the game, plaintiff walked outside the field to smoke a cigarette. On his way back, plaintiff fell on a sidewalk owned and maintained by defendant Borough of Wildwood Crest. As a result, he suffered a ball and joint displacement of his artificial hip that had been implanted two months before the accident.

Plaintiff alleged that the fall was caused by his tripping over a "lip" in the sidewalk that was between 3/8 and 1 inch higher than the adjoining concrete slab. Plaintiff claimed that this lip was a "dangerous condition of public property," which subjected Wildwood Crest to liability under the Tort Claims Act, N.J.S.A. 59:1-1 to -12.3.

According to plaintiff, the accident occurred after he heard his son hit a home run and was returning to the ball field to give him a "high five" as he rounded third base. Plaintiff alleged that he walked back to the field at a "normal" pace and that he had nothing in his hands. As plaintiff approached a gate in the fence surrounding the field, he tripped over the lip in the sidewalk and fell.

Four eyewitnesses to the accident in addition to plaintiff testified at trial. Several of those eyewitnesses testified to versions of the accident that were significantly different than plaintiff's version. Their testimony is discussed later in this opinion.

In response to interrogatories, the jury found that the raised lip in the sidewalk outside the Little League field constituted a dangerous condition of public property, but that this condition was not a proximate cause of plaintiff's injuries. Based on this verdict, the trial court entered final judgment in Wildwood Crest's favor. The trial court subsequently denied plaintiff's motion for a new trial. Plaintiff appeals, arguing that the verdict constituted a miscarriage of justice.

In order to prove a tort claim against a public entity for personal injuries caused by a dangerous condition of public property, a plaintiff must establish that: (1) a dangerous condition existed on the property at the time of the injury; (2) the dangerous condition was the proximate cause of the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; (4) either (a) a negligent or wrongful act or omission of an employee of the public entity created the condition or (b) the public entity had actual or constructive notice of the condition a sufficient time before the accident to have protected against it; and (5) the action or inaction of the public entity in respect to its effort to protect against the condition was palpably unreasonable. N.J.S.A. 59:4-2.

Because the judgment dismissing plaintiff's complaint was based solely on the jury's finding that the lip in the sidewalk outside the Little League field was not a proximate cause of plaintiff's injuries, this appeal turns on the sufficiency of the evidence to support the jury's finding that plaintiff failed to establish this element of a cause of action under N.J.S.A. 59:4-2.

The requirement of a showing of a proximate causal relationship between a dangerous condition of public property and an injury allegedly caused by that condition is essentially the same as in a common law negligence action. Garrison v. Township of Middletown, 154 N.J. 282, 307 (1998). Proximate cause has been defined as "'any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred.'" Ibid. (quoting Polyard v. Terry, 160 N.J. Super. 497, 511 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979)). To establish proximate cause, a plaintiff must show that the defendant's negligence was a "substantial factor" in causing his or her injuries. Rappaport v. Nichols, 31 N.J. 188, 203 (1959).

The threshold issue in determining proximate cause is whether the alleged dangerous condition of public property "constituted a cause in fact of plaintiff's loss." Daniel v. Dep't of Transp., 239 N.J. Super. 563, 594 (App. Div.) (quoting Kulas v. Pub. Serv. Elec. & Gas Co., 41 N.J. 311, 317 (1964)), certif. denied, 122 N.J. 325 (1990). "An act or omission 'is not regarded as a cause of an event if the particular event would have occurred without it.'" Id. at 595 (quoting Kulas, supra, 41 N.J. at 317).

Although plaintiff testified that the accident occurred when he tripped over the lip in the sidewalk as he was walking back to the ball field at a normal pace, wearing regular shoes and holding nothing in his hands, his cousin, Karen Morey, testified to a significantly different version. She stated that plaintiff was holding a soda can in his hand and wearing flip flops when he fell. Ms. Morey also testified that plaintiff was not using crutches at the time, but that someone retrieved crutches from his son's dugout, where plaintiff had been sitting, after the accident. In addition, plaintiff's orthopedic surgeon testified that plaintiff was "on a cane" at the time of the accident. The jury could have reasonably inferred from this testimony that plaintiff was using either crutches or a cane on the day of the accident but failed to take this physical support with him when he left the ball field to smoke. In addition, the jury could have reasonably inferred from plaintiff's own testimony that he was walking at a very fast pace when the accident occurred in order to be able to give his son a "high five" as he rounded third base after hitting a home run.

Additionally, although plaintiff's expert testified that a person who tripped over a lip in a sidewalk would fall face first and lurch forward, one of the eyewitnesses to the accident testified that plaintiff "just collapsed." This witness, Frederick Palmer, gave the following testimony concerning the occurrence of the accident:

Q. What did you see happen at the point of his fall?

A. Phew. Well, I - he just kind of collapsed. I - kind - I - just - you know, he kind of was just walking and I mean bam, down he went.

. . . .

Q. And can you see where Lew wound up after he fell? In other words, let me ask it a different way. Where did Lew wind up after he fell?

A. He went straight down. He was like a house of cards. I mean just blam (phonetic), like right down[.]

. . . .

Q. - you said he went down - I think the words that you used were like a house of cards?

A. Yeah.

Q. That means that he went straight down when he fell?

A. Just looked like he collapsed.

Based on this testimony, the jury reasonably could have found that plaintiff was walking too fast on a recently implanted artificial hip, without the support of his crutches or cane, while wearing flip flops on his feet and holding a cigarette and soda in his hands, and that he simply collapsed from the displacement of his hip rather than tripping over the lip of the sidewalk. Therefore, there was a sufficient evidential foundation for the jury to find that the raised lip was not a proximate cause of plaintiff's injuries.

Plaintiff also argues that a new trial is required because Wildwood Crest's expert was allowed to suggest to the jury that there was a question as to the location of plaintiff's fall. On plaintiff's cross-examination, Wildwood Crest's expert, George Widas, testified:

Q. Did the area where Mr. Morey fell, was that a tripping hazard in your opinion, Mr. Widas?

A. The control joint was, but if that's not where he fell, then the answer is no.

Based on its pretrial ruling that Widas could not testify that he was unable to form an opinion as to the location of plaintiff's fall, the trial court granted plaintiff's motion to strike the last part of this answer and instructed the jury to "disregard the last half of that answer." Plaintiff did not seek any additional curative instruction or move for a mistrial. Even assuming that the limitation the trial court placed on Widas' testimony was correct (an issue it is unnecessary for us to address), Widas' oblique suggestion that there was some question concerning the location of the accident, which the court instructed the jury to disregard, was not sufficiently prejudicial to warrant a new trial.

For these reasons, it does not "clearly appear[]" that the trial court's denial of plaintiff's motion for a new trial constituted a "miscarriage of justice." R. 2:10-1.

Affirmed.

(continued)

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A-6630-05T1

October 12, 2007