United States District Court, D. New Jersey
September 21, 2005.
DIANE L. REESE and DONALD REESE, Plaintiffs,
ROBERT FINLEY and CITY OF OCEAN CITY, Defendants.
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
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 boardwalk was a dangerous condition, as that term is defined
under the New Jersey Tort Claims Act, Defendant's Motion for
Summary Judgment is granted.
B. Dangerous Condition
Defendant first argues that Plaintiff cannot establish that the
Ocean City boardwalk in the area of Plaintiff's accident is a
"dangerous condition of public property." In § 59:4-1(a) a
dangerous condition is defined as a "condition of property that
creates a substantial risk of injury when such property is used
with due care in a manner in which it is reasonably foreseeable
that it will be used." (emphasis added). Arguing principally that
Plaintiff's claims cannot be sustained because her injuries were
caused by the "reasonably foreseeable negligent acts of a third
party" Defendant asks this Court for summary judgment.
In response, Plaintiff contends that "[w]hether a condition of
public property is `dangerous' within the meaning of the New
Jersey Tort Claims Act is a factual issue, unless reasonable men
could not differ as to whether the condition was dangerous."
(Pl's. Br. in Opp. to Def. Ocean City's Mot. for Summ. J. at 14,
Citing Cordy v. Sherwin Williams, 975 F. Supp. 639, 643
(D.N.J., 1997)). Citing the report and opinion of her expert, Dr.
Lucenko, Plaintiff argues that the boardwalk was simply "too
narrow for all of the activities permitted on the boardwalk, including bicycling, jogging, walking, using baby strollers and
carriages and wheelchairs." (Id. at 15).
In certain cases, the question of "dangerous condition" must be
resolved by the court as a matter of law, in order to ensure that
the "legislatively-decreed restrictive approach to liability"
under New Jersey law is enforced. Polyard v. Torry,
160 N.J. Super. 497, 508, 390 A.2d 653 (App. Div. 1978), aff'd o.b.,
79 N.J. 547, 401 A.2d 532 (1979). In addressing this summary
judgment motion, the Court asks if reasonable minds could differ
about whether the condition was indeed "dangerous" as defined by
the Act. Polyard at 510.
Even accepting the opinion of Plaintiff's expert for the
purposes of deciding this motion, the Court holds that the
"narrow" nature of the boardwalk cannot be, as a matter of law, a
dangerous condition. Common sense, the plain meaning of the
statutory definition of "dangerous condition", and New Jersey
cases interpreting that provision all confirm that a boardwalk
being too narrow for its allowed uses cannot be a dangerous
Beginning with the statutory language itself § 59:4-1(a)
defines a "dangerous condition" as a "condition of property". The
meaning of "condition" can be found in Black's Law Dictionary,
which defines it as "a state of being; an essential quality or
status." BLACK'S LAW DICTIONARY 314 (8th ed. 2004). Relatedly, Black's defines a "dangerous condition" as a
"property defect creating a substantial risk of injury when the
property is used in a reasonably foreseeable manner." Id.
These definitions illuminate two ideas. First, the "condition"
of the property relates to the state the property is in. Second,
for the property to be in a dangerous condition it must be
defective. For example, a sidewalk which is cracked or uneven
would be in a cracked or uneven state, and, consequently,
defective and dangerous.*fn3 Similarly, a boardwalk could be
in a dangerous condition if nails protruded several inches from
the wood such that a pedestrian might trip and fall over the
nails. See e.g. Mendelsohn v. City of Ocean City, 2004 U.S.
Dist. LEXIS 20467 (D.N.J. 2004) (discussed infra)
This contrasts with Plaintiff's use and understanding of
dangerous condition in this case. Here Plaintiff claims the
boardwalk was in a dangerous condition because it was too narrow for all the permitted uses to occur simultaneously. Unlike a
cracked sidewalk, a potholed road, or a boardwalk with protruding
nails the Ocean City boardwalk was not in a defective state. On
the contrary, the Ocean City boardwalk was the width it was
designed to be, fourteen feet, easily wide enough for multiple
users to pass one another unless a user is negligent.
Indeed, it is uncontroverted that there was sufficient width
for Finley to pass Mrs. Reese and her walking companion without
crossing the center dividing line. (Finley Dep. at 49-50.) Also,
at the time and place of the accident, the boardwalk was not
unduly congested. Mr. Finley saw, at most, seven persons in a
forty-foot span, including Mrs. Reese, her companion and the five
individuals proceeding south. (Finley Dep. at 37:7-14.)
Besides the plain meaning of the statutory language and the
facts of the case, the structure of the New Jersey Tort Claims
Act supports this Court's understanding of the word "condition".
In order to establish the liability of a public entity arising
from the existence of a dangerous condition, the statute requires
the Plaintiff to show either that the public entity had notice of
the dangerous condition or that an employee of the public entity
created the dangerous condition. N.J. STAT. ANN. § 49-4-2(a) and
Applying this statutory requirement to cases involving
differentials in pavement, as the Atalese court did, makes
sense. (discussed supra at n. 3) In Atalese, the pavement settled
after the Public Works department laid down a sewer extension.
365 N.J. Super. at 3-4. Under the Atalese facts, therefore, the
court could easily find that employees of the municipality's
public works department "created the dangerous condition by
negligently installing the storm sewer extension in question".
Id. The pavement literally changed states. Before the employees
laid the sewer extension there was no pavement differential,
after the extension there was a differential.
Comparing Atalese to this case underscores how the boardwalk
was not in a dangerous condition. In Atalese, the defining
physical characteristic of the property was the sunken pavement;
in this case the salient physical feature of the boardwalk was
its 14.5 foot width. The differences in these characteristics
exemplify how the width of the boardwalk is not a condition at
Instead of pavement becoming uneven, which implies a danger by
itself, the width of the boardwalk can only be characterized as
defective if other facts are considered. In contrast to
Atalese, therefore, it would not be enough to say that the
boardwalk was 14.5 feet wide and ask whether a public employee
negligently created the boardwalk that wide; nor would it suffice
to ask if Ocean City had notice that the boardwalk was 14.5 feet
wide. These inquiries do not lead to any insights about Ocean City's liability.
Instead, the § 49-4-2 inquiry only makes sense if the physical
width of the boardwalk is judged "too narrow." Only then could
the Court apply § 49-4-2 by asking whether Ocean City knew that
the boardwalk was too narrow, or, by asking whether employees of
Ocean City negligently acted or failed to act in keeping the
boardwalk too narrow. For this reason the structure of the Act
underscores how the narrowness of the boardwalk was not a
Case law supports and clarifies this analysis. In particular,
New Jersey case law highlights two ways in which the Ocean City
boardwalk cannot meet the statutory requirements of a "dangerous
condition". First, being too narrow is not a physical defect; and
relatedly, the danger in this case arose from the activities
conducted on the boardwalk and not the condition of the property
In Levin v. County of Salem, 133 N.J. 35 (1993), one of the
plaintiffs suffered a paralyzing injury when he dove off a county
bridge and hit a submerged sandbar. The New Jersey Supreme Court
held that even though the county had known from a previous
lawsuit about the dangerousness of the sandbar, the bridge was
not a dangerous condition. In reaching its holding, the court
specifically rejected plaintiff's argument that "the use of the
property as a recreational facility, when the public body knew of the use, created a dangerous condition of property." Id. at 43.
Citing a series of cases, the Levin court considered the
meaning of "dangerous condition" in the Act. It held that
"heretofore courts have understood a `dangerous condition' as
defined in N.J.S.A. 59:4-1a to refer to the `physical condition
of the property itself and not to activities on the property.'"
Id. at 44 (quoting Sharra v. City of Atlantic City,
199 N.J. Super. 535, 540, 489 A.2d 1252 (App. Div. 1985)).
Turning to California cases for guidance in deciding when a
"dangerous condition" exists, the court noted that most
California cases draw an important distinction: "that a physical
defect in the property must exist as a precondition to
public-entity liability." Id. at 47. Building on this, the
Supreme Court concluded that:
In this case, there was no missing plate, no broken
bolt, no defect in the bridge itself that caused or
contributed to cause the tragic accident. The danger
arose because the bridge was where the shallow water
133 N.J. at 49. By emphasizing the physical defect and physical
condition of the property, the Levin case necessarily informs
this Court's conclusion that the "narrowness" of the boardwalk
cannot be considered a dangerous condition.
The New Jersey Supreme Court has more recently summarized the
Levin holding in Posey v. Bordentown Sewerage Auth.,
171 N.J. 172 (2002), that "[a] dangerous condition under the TCA relates to the physical condition of the property itself and not to
activities on the property." Id. at 188 (citing Levin).
This case shares similarities with other cases which have found
no dangerous conditions. Consider Mendelsohn v. City of Ocean
City. 2004 U.S. Dist. LEXIS 20467 (D.N.J. 2004). In
Mendelsohn, plaintiffs brought suit against the City of Ocean
City for compensatory damages after Mrs. Mendelsohn stumbled on a
nail that protruded from the Ocean City boardwalk. The court
granted the defendant's Motion for Summary Judgment on the
grounds that plaintiffs could neither prove that a dangerous
condition existed nor prove that Ocean City acted "palpably
unreasonably". The Judge held that a "nail protruding one quarter
of an inch is not within the category of defects encompassed by
the liability provisions" of the New Jersey Tort Claims Act.
Id. at 16. To support this conclusion the court assessed the
dangerousness of the boardwalk "in light of the legislative
purpose to restrict municipal liability." Id.
Mendelsohn relates to this case in two ways. First, it
highlights a classic defect in property that would create
liability if the defect rose to the level of a "dangerous
condition". Second, its conclusion that the one quarter inch nail
protrusion was a minor defect emphasizes that the mere existence
of a defect is not enough under the statute. Id. at 17. If the raised nails in Mendolsohn were not dangerous
conditions then the narrowness of the boardwalk certainly is not
one either. Mendelsohn at least involved a change in the state
or condition of the boardwalk. As discussed above, the boardwalk
did not change conditions or states in this case. In fact, the
boardwalk existed at its designed width. Moreover, any pedestrian
walking on the boardwalk could have tripped and been injured on
the nail. In the instant action, however, walking on the
boardwalk did not subject Plaintiff to the risk of injury by
itself. Only the added risks of the "hot doggers" and Defendant
Finley placed Plaintiff in jeopardy of injury.
Comparing cases where New Jersey courts have found a dangerous
conditions to exist with those cases where the courts have found
dangerous conditions not to exist confirms that this case falls
into the latter category, just like Mendelsohn. Compare Cordy v.
Sherwin Williams Co., 975 F. Supp. 639 (D.N.J. 1997) (rail
raised between 5/8 and 7/8 of an inch over the roadway was a
dangerous condition when it stopped the tire of plaintiff's
bicycle); Grzanka v. Pfeifer, 301 N.J. Super. 563, 570 (App.
Div. 1997) (an inoperable traffic light was a possible dangerous
condition); Roe v. New Jersey Transit Rail Operations, Inc.,
317 N.J. Super. 72 (App. Div. 1998) (N.J. Transit may have
created a dangerous condition by bolting open a gate and thereby
inviting the public to use it); and Atalese v. Long Beach Twp., 365 N.J. Super. 1, 5 (App. Div. 2003) (a three-quarters of an
inch differential in the pavement caused by the settling of a
storm drain was a dangerous condition); with Rodriguez v. N.J.
Sports & Exposition Authority, 193 N.J. Super. 39 (App. Div.
1983) (attack by persons in sports complex is not a dangerous
condition); Cogsville v. Trenton, 159 N.J. Super. 71 (App. Div.
1978) (bites from a "dangerous" dog owned by tenant in a dwelling
not a dangerous condition); Setrin v. Glassboro State College,
136 N.J. Super. 329 (App. Div. 1975) (attack on campus of State
College not a dangerous condition). In other words, the activity
conducted on the public property does not make the condition
Unlike every other example this Court discovered in its
research and cited by counsel, finding the property to be in a
dangerous condition in this case would require more than
analyzing a "defect" in the property. It would necessitate a
comparison of the property as it was intended to exist to a
hypothetical form in which the property could have existed if
Ocean City had acted differently. Where, as in this case, the
boardwalk was in its intended condition, this approach strains
the plain meaning of the text. It also contrasts with the other
examples where dangerous conditions have been found in case law.
In conclusion, the Court holds that even if the boardwalk were
too narrow this does not constitute a dangerous condition under § 59:4-2. It was the bike riding mingled with pedestrians
and not a condition of the boardwalk itself which led to
Plaintiff's unfortunate accident and injuries.
C. Palpably Unreasonable
Although not necessary to this decision, the Court holds that
Plaintiff cannot prove that Ocean City's actions or omissions
were "palpably unreasonable" as required by N.J. Stat. Ann. §
59:4-2.*fn4 Generally, the term "palpably unreasonable" has
been construed as implying "behavior that is patently
unacceptable under any given circumstance." Kolitch v.
Lindedahl, 100 N.J. 485, 493 (1985) Id. at 493. In other
words, a public entity's actions or omissions may be deemed
palpably unreasonable if no prudent person would approve of the
entity's actions or omissions. Id.
Nonetheless, as Plaintiff urges, palpably unreasonable does
"not necessarily mean very negligent or grossly negligent or
extraordinarily negligent conduct." Schwartz v. Jordan,
337 N.J. Super. 550, 555 (App. Div. 2001) Applying Kolitch's
"patently unacceptable" test requires courts look to "not only
what was done, but what the Township's motivating concerns were."
Id. at 563. Consequently, the New Jersey Supreme Court has held
that the "the action or inaction of the public entity" relates to the
entity's exercise of "discretion in determining what action
should or should not have been taken." Brown v. Brown,
86 N.J. 565, 575 (1981). See also Muhammad v. N.J. Transit,
176 N.J. 185, 196 (2003). The Court therefore considers the actions
Plaintiff alleges Ocean City should have and should not have
Plaintiff argues that Dr. Lucenko's report provides sufficient
evidence for a reasonable juror to conclude that Ocean City acted
in a palpably unreasonable manner. Dr. Lucenko lists four
omissions of Ocean City in support of his claim that Ocean City
acted palpably unreasonably: (1) failing to establish effective
policies and procedures to keep the public safe; (2) failing to
effect the supervision of the boardwalk; (3) failing to provide
signs in the area of the accident; and (4) failing to provide
funds to expand the boardwalk. Plaintiff concludes:
In essence, the Defendant, while aware that the
narrow width of the boardwalk created a dangerous
condition to the public, did nothing to protect
against this hazardous condition. . . . Based on the
evidence presented . . . a reasonable jury could
conclude that the city's complete failure to Lake any
steps to address the hazardous condition on the
boardwalk in the area where the accident occurred was
unacceptable under any circumstances . . .
Pl's Br. in Opp. to Def. Ocean City's Mot. For S.J. at 23.
As a matter of law, the Court holds that neither Ocean City's
actions nor its omissions were palpably unreasonable. All of Plaintiff's allegations about Ocean City's failures ignore the
fact that Ocean City need not do "everything that might be done".
Mendolsohn at 23. Ocean City endeavored to minimize the risk of
accident by enacting ordinances limiting the time bicycles are
allowed on the boardwalk during the summer. These actions were
consistent with its Boardwalk Master Plan, wherein Ocean City
wanted to allow bicycles on the boardwalk. These actions provide
the context in which Ocean City's "inaction" must be judged.
Neither Dr. Lucenko's four enumerated "failures" nor anything
else in his report are sufficient to meet the "patently
unacceptable" standard. Each might have made the boardwalk safer
during the hours that bicycles were allowed on the boardwalk.
Nonetheless, each of the four "failures" suffer from the same
problem as Plaintiff's arguments about the dangerous condition.
In short, Ocean City need not enact policies, supervise the
boardwalk, place signs, or obtain money in order to protect
Plaintiff from the "dangerous condition" of the land. As
discussed fully above, Plaintiff needed protection from the
combined activities and negligence of Defendant Finley and the
"hot doggers" traveling towards him on the morning of July
Because the Court finds that the narrowness of the boardwalk
cannot be proven to be a dangerous condition Ocean City is
entitled to summary judgment. As binding New Jersey Supreme Court precedent teaches, linguistically and practically, courts
look to physical defects in property in order to find that
dangerous conditions exist. The plain meaning of § 59:4-1(a), the
structure of the New Jersey Tort Claims Act, and case law all
support this Court's holding that Plaintiff cannot sustain her
claims based on the boardwalk being too narrow for its allowable
uses. For these reasons, and those discussed above, Defendant
Ocean City's Motion for Summary Judgment is GRANTED.
Alternatively, the Court also holds that no reasonable fact
finder could conclude that Ocean City's actions and inactions
were "palpably unreasonable" as that requirement is defined under
the New Jersey Tort Claims Act. For this reason too, Defendant
Ocean City's Motion for Summary Judgment is GRANTED.
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