KAREN WALTER v. CALIFORNIA AVENUE VENTURES LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05235-13T3

KAREN WALTER,

Plaintiff-Appellant,

v.

CALIFORNIA AVENUE VENTURES LLC, B&B PARKING INC., and ATLANTIC CITY SEWERAGE COMPANY,

Defendants-Respondents.

_____________________________________________________

September 9, 2015

Submitted August 25, 2015 Decided

Before Judges Messano and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4439-13.

Jeffrey M. Sheppard, attorney for appellant.

Stephen G. Sobocinski, attorney for respondents California Avenue Ventures LLC and B&B Parking Inc.

Charles A. Little, Jr., attorney for respondent Atlantic City Sewerage Company, joins in the brief of respondents California Avenue Ventures LLC and B&B Parking Inc.

PER CURIAM

After falling from her bicycle on an Atlantic City sidewalk, plaintiff Karen Walter filed a negligence complaint against defendants B&B Parking Inc., California Avenue Ventures LLC, and Atlantic City Sewerage Company. The trial court granted defendants' motion for summary judgment.1 Applying summary judgment standards, see Rule 4:46-2, plaintiff offered sufficient evidence that her fall was caused by a condition of the sidewalk. We reverse.

I.

During the afternoon of August 14, 2012, plaintiff was riding her bicycle on the Boardwalk in Atlantic City with her boyfriend. Bicycles were prohibited after 12:00 p.m., so a police officer ordered them off the Boardwalk. Complying with the order, plaintiff rode her bike down an adjacent ramp and onto a nearby sidewalk owned by defendants. Plaintiff continued down the sidewalk when she "hit something underneath the wheel" and fell over her handlebars, suffering injuries to her hip and wrist.

During her deposition, plaintiff said the object she hit "felt really hard" and may have been "a metal thing." Later in her testimony, plaintiff admitted she did not know precisely what caused her bike to lose control. She noted that she "fell in between two things" and that the accident occurred "[v]ery, very quickly." In a subsequent affidavit, plaintiff clarified her deposition testimony, stating, "[w]hat [she] meant [was] that [she] did not know the mechanics of what caused her to fall." She claimed further that "she was injured as a result of the front tire coming in contact with [a] metal cover."

Plaintiff's boyfriend, who was riding in the street, did not see what caused plaintiff to fall because his view of the sidewalk was obstructed by parked cars. He testified that he saw "her head over the hood of the car and all of a sudden . . . lost sight of her."

On September 27, 2012, William Swiderski, an engineer hired by plaintiff, visited the site of the fall. Swiderski observed two obstructions on the sidewalk, "an abandoned water service box and . . . a sewer cleanout box[,] which was also abandoned." Swiderski noted that the boxes were six-and-one-half inches apart. He also noted that the "top of the water service was depressed below the level of the sidewalk" and "that the lid of the water box was depressed" by approximately one-and-one-quarter inches on one side and one-and-one-eighth inches on another. Swiderski observed further that "[t]he concrete over the sewer cleanout box protruded above the adjacent sidewalk approximately [three quarters to one inch]." Swiderski concluded, "[t]he depression and protrusion of the two utility boxes located within the sidewalk area are clearly the cause of the accident and injuries suffered by [plaintiff]."

After plaintiff brought suit, defendants moved for summary judgment. At the motion hearing, defendants argued plaintiff could not "even say what the defect [was] with[] any specificity." Defendants reasoned that in order to proceed to trial, "plaintiff herself ha[d] to say what caused her to fall, either before she noticed it or after." The trial court agreed. In a written opinion, the judge concluded, "[p]laintiff had absolutely no idea what caused her to fall. She was asked on numerous occasions as to the alleged condition, and yet . . . could not identify any condition." The court was dismissive of Swiderski's report, commenting that "[t]he job of an expert is not to go to a site and determine that there is a dangerous condition somewhere in the area and determine that, therefore, the plaintiff must have fallen over that alleged defect." The judge entered an order granting defendants' summary judgment.

Plaintiff now appeals.

II.

We first set forth well-established principles regarding summary judgment. A grant of summary judgment is reviewed using the same standards as the trial court. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine if the moving party has demonstrated that no genuine dispute as to material facts exists; we then consider whether the motion judge applied the law correctly. Id. at 230-31. We consider the facts in a light most favorable to the non-moving party. Peguero v. Tau Kappa Epsilon Local Chapter, 439 N.J. Super. 77, 87 (App. Div. 2015). We owe no deference to the trial court's conclusions of law. Hand v. Philadelphia Ins. Co., 408 N.J. Super. 124, 134 (App. Div.), certif. denied, 200 N.J. 506 (2009).

We agree with plaintiff that the record establishes a triable issue of fact on whether the condition of the sidewalk caused her injury. During her deposition, plaintiff said she fell immediately after hitting a "hard" object that may have been "metal" and that she fell between "two things." Plaintiff's expert later observed a sewer and water box in the middle of the sidewalk at the accident site. A rational factfinder could infer that the hard object plaintiff rode over was one of these two obstructions. See Kulas v. Pub. Serv. Elec. & Gas Co., 41 N.J. 311, 319 (1964) ("Of course, the plaintiffs have the burden of proving causation but they are not obliged to establish it by direct, indisputable evidence. The matter may rest upon legitimate inference, so long as the proof will justify a reasonable and logical inference as distinguished from mere speculation." (internal quotation marks omitted)).

Further, we reject defendants' argument that plaintiff has attempted to "create a [triable] question of fact by signing a 'sham' affidavit" that purportedly contradicts her deposition testimony. The affidavit is actually consistent with plaintiff's deposition testimony that she fell after hitting a hard metal object. A factfinder could fairly conclude that plaintiff was merely unsure of the mechanics of her fall when she later answered that she did not know "what caused [her] bike to lose control." At trial, defendants may attempt to impeach plaintiff with any purported inconsistencies, and plaintiff is free to explain them.

Reversed.

1 Plaintiff's complaint alleged that the sidewalk was "owned and maintained" by all defendants, including Atlantic City Sewerage Company. At the trial court and before us, Atlantic City Sewerage Company relied entirely on the arguments presented by counsel for the remaining defendants.