SALVATORE CASCONE v. BOROUGH OF BELMAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2444-08T12444-08T1

SALVATORE CASCONE and CELIA

SORIANO CASCONE, H/W,

Plaintiffs-Appellants,

v.

BOROUGH OF BELMAR,

Defendant-Respondent.

_________________________________________________

 

Argued December 7, 2009 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3581-07.

Randall J. Peach argued the cause for appellants (Law Office of Roy D. Curnow, attorneys; Roy D. Curnow, of counsel; Mr. Peach, on the brief).

Jennifer A. Passannante argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys; Christopher J. Killmurray, of counsel; Bridget Riepl, on the brief).

PER CURIAM

Plaintiff Salvatore Cascone has brought this action against defendant Borough of Belmar (the Borough) for injuries he sustained when he tripped and fell on a raised nail and board while jogging on the boardwalk in Belmar on June 17, 2005. The trial judge granted the Borough's motion for summary judgment and dismissed the complaint, finding that plaintiff was unable to meet the requirements of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. Plaintiff appeals that decision to this court. We affirm.

The record indicates that on June 17, 2005, plaintiff was jogging on a wooden portion of the boardwalk in the Borough when he tripped and fell because of a raised nail and board, sustaining personal injuries. While plaintiff had jogged on the boardwalk many times before, he had no prior problems with the boardwalk until his accident. Indeed, earlier on the day of the accident, he had jogged on the opposite side of the portion of the boardwalk where the fall occurred, but he did not notice the raised nail and board. Plaintiff testified that when he later observed the portion of the boardwalk where he had fallen, "I saw how bad it was all over the place. It was rotten." He testified that after his fall, a Borough police officer told him that the "north end is in real rough shape."

The report of plaintiff's expert, a professional engineer who observed a photograph of the area where plaintiff fell, concluded that "one of the wooden planks near [the] restroom building was cracked, with one edge raised above abutting surface. Said projection was so located, that persons proceeding over same could easily be caused to stumble and fall." He opined that the boardwalk condition was "1. palpably unreasonable; 2. [a] nuisance in the public way; [and] 3. [t]he repair of same would have required very little time, effort and cost." Notably, he expressed no opinion on how long the dangerous condition had existed.

The record indicates that the Borough's Department of Public Works is responsible for the maintenance of the boardwalk. Over a period of years, the Borough has been replacing portions of the wooden boardwalk with a composite known as TREX, but by the time of plaintiff's fall, the portion of the boardwalk where plaintiff fell had not yet been replaced. At his deposition, the superintendent of the Borough's Department of Public Works, Andy Meuerle, testified that "during the summer months, we try to walk the boardwalk once a week, manpower provided and weather permitting. In the warmer months, we walk the boardwalk on a Monday in the beginning of the week and inspect it from benches to railings to boards to nails to everything." Meuerle also testified that the Department of Public Works does not keep records of complaints made about the boardwalk nor does it keep records of the maintenance and repairs done to the boardwalk.

In order to sustain a personal injury action against the Borough, plaintiff must meet the requirements of N.J.S.A. 59:4-2 of the Tort Claims Act. Under the provisions of that section, in order for a public entity to be liable for an injury caused by the condition of its property, a plaintiff must meet the following five requirements:

(1) that a dangerous condition existed on the property at the time of the injury,

(2) that the dangerous condition proximately caused the injury,

(3) that the dangerous condition created a foreseeable risk of the kind of injury incurred,

(4) that either (a) a negligent or wrongful act or omission of a public employee within the scope of his employment created the dangerous condition, or (b) that a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have protected against the condition and

(5) the action or inaction of the public entity in respect of its effort to protect against the condition was palpably unreasonable.

[Margolis & Novack, Claims Against Public Entities, comment on N.J.S.A. 59:4-2 (2009).]

At the conclusion of discovery, the Borough moved for summary judgment, contending that plaintiff could not prove the fourth requirement, that the Borough had actual or constructive notice of the condition, nor could plaintiff prove the fifth requirement, that the conduct of the Borough was "palpably unreasonable." In making this argument, the Borough noted that Meuerle had testified that the boardwalk was inspected every Monday during the "warmer" or "summer" months. However, due to the imprecision of the terms "warmer months," or "summer months" the trial judge declined to assume that they included June 17, the day of the accident. He denied summary judgment without prejudice, indicating that the motion could be renewed if the inspection schedule were clarified.

Defendant, thereafter, renewed its motion for summary judgment and included in its motion papers an affidavit from Meuerle who stated that "summer months" meant from Memorial Day through September. Thus, the boardwalk was being inspected on a weekly basis at the time of the accident. With this additional information, the trial judge granted summary judgment to defendant and dismissed the complaint, concluding that plaintiff could not establish that the Borough had constructive notice of the raised nail and board nor could plaintiff show that the Borough's actions were "palpably unreasonable." He set forth his explanation of this ruling in a lengthy oral decision that addressed numerous issues raised by plaintiff.

Plaintiff now appeals, contending that the proofs were sufficient to show that the Borough had constructive notice of the dangerous condition and that the Borough's conduct was "palpably unreasonable" or that the proofs were at least sufficient to create genuine issues of material fact on those questions. Plaintiff also contends that the trial judge erred in relying on Meuerle's affidavit submitted in the second summary judgment motion. He argues that the trial judge's neutrality was grossly compromised when, in denying the Borough's first motion for summary judgment, the judge stated that the Borough could renew its motion if it could clarify the meaning of "warmer months" or "summer months" in Meuerle's testimony. Plaintiff also claims that the trial judge erred in rejecting plaintiff's argument that the Borough's program in replacing portions of the boardwalk with TREX demonstrated that the Borough had constructive knowledge of the condition that caused plaintiff to fall.

Our review of a trial court decision on a motion for summary judgment is de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is granted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). In making this evaluation, we look at the competent evidence "in the light most favorable to the non-moving party" and determine whether it is sufficient to meet this standard. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

After a careful review of the record and arguments of counsel in light of this standard and the Tort Claims Act, we conclude that summary judgment was properly granted to defendant for the reasons ably set forth by the trial judge in his oral decision.

We also conclude that the trial judge did not err in considering the Meuerle affidavit in the second motion for summary judgment. In that affidavit, Meuerle clarified that when he testified to "summer months" at his deposition, he was referring to the time period from Memorial Day through September. This affidavit did not contradict his deposition testimony but rather explained his use of the term "summer months."

These circumstances can best be analyzed by reference to the sham affidavit doctrine. Under that doctrine, when a party submits, in opposition to a motion for summary judgment, an affidavit that contradicts the affiant's prior deposition testimony, the court may disregard the affidavit. Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002). However, the doctrine does not apply "where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement." Id. at 201-02. Here Meuerle's affidavit merely clarifies his earlier deposition testimony by explaining the time period he meant when he said "summer months" at his deposition. The trial judge appropriately took the affidavit into account when deciding the second summary judgment motion.

Nor did the trial judge depart from his role as an impartial adjudicator by indicating, when he denied defendant's first motion for summary judgment, that the motion could be renewed upon clarification of the precise meaning of the terms "warmer months" or "summer months" as used by Meuerle in his deposition. The summary judgment procedure "is designed to provide a prompt, businesslike and inexpensive method" to dispose of cases where there is no "genuine issue of material fact requiring disposition at trial." Brill v. Guardian Life Ins. Co. of Am., supra, 142 N.J. at 530 (quoting Ledley v. William Penn Life Ins. Co., 138 N.J. 627, 641-42 (1995)). These purposes are not served if a trial judge is barred from seeking clarification of the meaning of a term used in the record in order to determine if a case requires a trial.

Affirmed.

 

Plaintiff's wife Celia Soriano Cascone also asserted a per quod claim against the Borough.

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A-2444-08T1

December 29, 2009