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Atalese v. Long Beach Township

December 15, 2003

GRACE ATALESE AND VINCENT ATALESE, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
v.
LONG BEACH TOWNSHIP AND LONG BEACH TOWNSHIP PUBLIC WORKS DEPARTMENT, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1650-01.

Before Judges King, Lintner and Lisa.

The opinion of the court was delivered by: Lintner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 6, 2003

Plaintiffs, Grace Atalese and her husband Vincent,*fn1 appeal from an order granting summary judgment dismissing Grace's personal injury complaint against defendant Long Beach Township.*fn2 We reverse and remand for further proceedings. Because this appeal arises from the grant of a motion for summary judgment,"we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiff[]." Strawn v. Canuso, 140 N.J. 43, 48 (1995).

On October 12, 1999, at approximately 7:00 a.m., plaintiff tripped and fell injuring herself while on the return leg of a"power walk" in Long Beach Township. At the time, she was proceeding on the east side of Beach Avenue, a one-way residential street, in a southerly direction facing traffic in a designated pedestrian-bicycle lane (bike lane). There were no sidewalks in the area. A sign installed by defendant warns pedestrians to walk facing traffic. As plaintiff watched a vehicle approach, she moved to the left and felt her foot go down on what she described as"a little uneven" portion of the pavement. She fell, hitting her head on the pavement.

Photographs were taken of the area showing a significant rectangular portion of the pavement in the bike lane depressed for a distance of approximately one block as a result of apparent settling of a storm drain serviced by three storm grates. Although plaintiff does not know the exact location of her fall, two of the photographs show blood on the roadway adjacent to the bike lane where her head presumably hit the pavement.

Discovery from defendant revealed that its Department of Public Works installed a sewer extension over a period of two days in the late spring of 1999. The installation consisted of cutting and removing the asphalt, digging a trench, and laying down a sewer extension along Beach Avenue for one block between its intersections with Weldon Place and Nevada Avenue.

According to defendant's maintenance supervisor, when the job was finished they placed tar at the site making the repaired area"slightly higher than the road area." An investigation by the maintenance supervisor one month after plaintiff's fall revealed that the area had"settled in some areas but not all." He ordered and applied additional tar.

In a report submitted to plaintiff by John Toto, a professional engineer, Toto found from his review of plaintiff's pictures that the depression in the area where plaintiff fell was approximately three-quarters of an inch.*fn3 He cited to CABO/ANSI standards, which require edge treatment when changes in level are greater than one-quarter of an inch. He determined that the settlement of the pavement occurred because"the [backfilled] soil was improperly compacted or the bituminous paved surface was not properly rolled." He concluded that defendant's public works department failed to follow proper construction procedures, which created a dangerous condition, specifically a tripping hazard.

Relying upon unspecified case law, the judge found that a three-quarter inch difference in elevation in the pavement did not constitute a substantial risk of harm to qualify as a dangerous condition under the Tort Claims Act. In reaching his determination the judge stated,"as the case law has noted, bumps and dips are common in the roadway and travelers should expect them."

On appeal, defendant argues, as it did before the motion judge, that there is no proof in the record that it had actual or constructive knowledge of the condition. It maintains that no one reported the condition and it did not learn that the pavement settled until one month after the accident.

Defendant's contention is misplaced. The liability provisions of N.J.S.A. 59:4-2 state:

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 ...


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