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September 21, 2005.


The opinion of the court was delivered by: JEROME SIMANDLE, District Judge


Presently pending before the Court is Defendant Ocean City's Motion for Summary Judgment in this case involving a bicycle and pedestrian accident on the boardwalk. (Pl.'s Compl. at ¶ 7.) Because Plaintiff cannot prove that the Ocean City boardwalk was a "dangerous condition" as defined in N.J. STAT. ANN § 59:4-1 (a), Defendant's motion is granted. I. FACTUAL AND PROCEDURAL BACKGROUND

The accident giving rise to this lawsuit occurred on the Ocean City boardwalk at approximately 7:30 a.m. on Friday July 19, 2002. On that morning, Plaintiff Diane L. Reese ("Plaintiff" or "Reese") was walking on the boardwalk near 18th Street in the City of Ocean City ("Ocean City"). That same morning Defendant Robert Finley ("Finley") rode his bike in the direction Plaintiff Reese was walking.

  Defendant Finley observed Plaintiff Reese and her companion and moved to pass them on their left. After moving to the left, Finley noticed other bicycle riders headed straight at him. The accident occurred as Finley swerved into Diane Reese while attempting to avoid the group of bikers, whom Finley described as "hot doggers." (Finley Dep. 377-14, and 49-50.) The force of the impact knocked Plaintiff Reese to the ground and caused her to hit her head on the boardwalk. Plaintiff was rendered unconscious, suffered brain injuries, and fractured her left wrist as a result of the accident.

  Plaintiff Reese initiated suit on August 25, 2003, naming Finley and Ocean City as defendants.*fn1 (Pl's Compl. at ¶ 17). In Count II of the Complaint, Plaintiff alleged that Ocean City was negligent by failing to "design, construct, control and maintain its boardwalk in reasonably safe condition, because the boardwalk was too narrow at the location of the accident." (Id.) In particular, Plaintiff claimed that the boardwalk was too narrow to permit simultaneous walking, jogging, and cycling uses. (Id.) The parties have agreed that the boardwalk is fourteen feet wide between 15th and 20th streets in Ocean City, which includes the area of the accident.*fn2 At the time of the accident, however, there were no baby strollers, roller bladers, baby carriages, wheel chairs, surreys or non-powered scooters in the area.

  Defendant Ocean City filed its Motion for Summary Judgment attacking Plaintiff's case on three grounds. First, Ocean City argues that Plaintiff cannot establish that the boardwalk was a "dangerous condition." Second, Ocean City contends that it is entitled to immunity for its decisions to allow bicycles on the boardwalk. Third, Ocean City also seeks summary judgment on the grounds that its actions and/or omissions were not "palpably unreasonable." After summarizing the applicable standard of review, the Court will discuss these arguments, as well as Plaintiff's counter arguments, in greater detail. II. THE LEGAL STANDARD

  This Court has subject matter jurisdiction under 28 U.S.C. § 1332 due to diversity of citizenship, and New Jersey law applies to this claim and the municipality's defenses. Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when the evidence contained in the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Serbin v. Bora Corp., 96 F.3d 66, 69 n. 2 (3d Cir. 1996) and Fed.R.Civ.P. 56. Judicial consideration of summary judgment motions requires that all reasonable inferences from facts placed before the court must be drawn in favor of the non-moving party. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990).

  Once the moving party has met its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Several Supreme Court cases have held that a summary judgment motion should be granted unless the party opposing the motion "provides evidence `such that a reasonable jury could return a verdict in favor of the nonmoving party.'" See, e.g., Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, the non-moving party, here the Plaintiff, must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Serbin, 96 F.3d at 69 n. 2 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).


  Plaintiff Reese's claims against Ocean City arise under the New Jersey Tort Claims Act ("the Act"). See N.J. STAT. ANN. §§ 59:4-1 to:4-9. The Act defines the limits of public entities' liability for personal injuries arising from the condition of public property. In order to hold a public entity liable for a an "injury caused by a condition of the property," the statutory language of N.J. STAT. ANN. § 59:4-2 ("§ 59:4-2") requires a plaintiff to establish five elements.

  A. The Statutory Framework

  First, a plaintiff must establish that "the property was in dangerous condition at the time of the injury." N.J. STAT. ANN. § 59:4-2. Second, a plaintiff must show that "the injury was proximately caused by the dangerous condition." Id. Third, a claimant must demonstrate that "the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred." Id. To establish the fourth element, a plaintiff seeking to hold a public entity liable can prove one of two things. Specifically, the plaintiff must show 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.
N.J. STAT. ANN. § 59:4-2. If the plaintiff can prove either (a) or (b) then this fourth proof is satisfied.
  Assuming that the plaintiff proves each of the first four requirements, § 59:4-2 adds one final provision. Referred to as the "palpably unreasonable" provision, the last paragraph of § 59:4-2 specifies that:
Nothing in this section 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. STAT. ANN. § 59:4-2.

  These five elements can be synthesized and simplified as follows. Plaintiff must demonstrate that: (1) the property was in a dangerous condition; (2) the dangerous condition was the proximate cause of Plaintiff's injury; (3) the dangerous condition created a foreseeable risk of the injury Plaintiff sustained; (4) the public entity either knew of the dangerous condition or created it through an action or omission; and (5) the action or inaction the public entity took or failed to take was "palpably unreasonable." Because Plaintiff cannot prove that the ...

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