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Ogborne v. Mercer Cemetery Corp.

June 6, 2007

SUZANNE K. OGBORNE, PLAINTIFF-RESPONDENT,
v.
MERCER CEMETERY CORPORATION, DEFENDANT, AND CITY OF TRENTON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. 1371-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2007

Before Judges Axelrad, Coleman and Gilroy.

Defendant City of Trenton (City) appeals from the grant of partial summary judgment, determining that it was negligent and that plaintiff had met the threshold for pain and suffering damages under the New Jersey Tort Claims Act*fn1 (Act), N.J.S.A. 59:9-2d, and from the denial of its motion for reconsideration. The City also appeals from the order of October 19, 2005, entering judgment following a jury verdict in the amount of $1,640,000. We affirm in part; reverse in part; and remand the matter to the trial court for further proceedings consistent with this opinion.

Plaintiff is employed by the State Department of Personnel (DOP) in Trenton. On November 26, 2001, the Monday after the Thanksgiving holiday, plaintiff took a thirty-minute lunchtime walk through the Mercer Cemetery Park (the Park).*fn2 The Park is approximately five acres and contains walking paths and benches, providing individuals with places to picnic and relax. The Park is located on South Clinton Avenue, near the intersection with Raoul Wallenberg Boulevard, approximately 150 feet from the Trenton train station. It is surrounded by numerous government office buildings, including the DOP and State Department of Environmental Protection (DEP). In addition, there are bus stops near the Park's front gate, along South Clinton Avenue. Accordingly, there is consistently a fair amount of pedestrian and motor vehicle traffic around the Park.

The Park is maintained and operated by the City's Department of Recreation, Natural Resources and Culture. The hours of operation of the Park are from 7:30 a.m. to 4:30 p.m., Monday through Friday. Its perimeter is entirely enclosed, at parts by a wrought iron picket fence approximately five or six feet in height, and at other parts by a brick wall, ranging in height between two and seven feet. The Park has two wrought iron gates that are used as public entrances, one on South Clinton Avenue and one across from the DEP building. When the Park is not in operation, the two gates are secured with chains and padlocks. The padlocks can only be opened by a key made for a limited number of padlocks specially purchased by the City, and only certain City employees have possession of the keys. When the gates are unlocked in the morning, the chain is secured to one side of the gate and locked in place with the padlock, preventing removal of the chain during the day while the Park is open. In order to close the gates, a City employee has to unlock the padlocks, close the gates, secure them with the chains, and relock the padlocks.

Approximately thirty minutes after plaintiff entered the Park, she attempted to leave, only to discover that both gates had been closed, chained, and padlocked. Plaintiff walked around the inside perimeter of the Park in search of help, or an alternate means of egress, but her search proved fruitless. Even though plaintiff did not possess a cell phone, she did not feel comfortable yelling for help because she believed she was in a vulnerable position and did not want to draw attention to herself.

In a bid to exit the Park, plaintiff, who was thirty-five years old at the time, climbed the brick wall at its lowest point inside the Park, approximately two to three feet in height. She then jumped from a seated position on top of the wall down to a grassy area on the exterior side of the wall, a drop of between six and seven feet. In her fall, plaintiff suffered a comminuted segmental fracture of her right tibia which involved two fracture lines, breaking her tibia into three pieces. A pedestrian, having observed plaintiff lying on the ground, asked if she needed assistance and summoned help from a police officer at the train station.

First aid arrived, transporting plaintiff to the emergency room at St. Francis Medical Center where her leg was x-rayed and splinted, and she received medication for her pain. Three days later, plaintiff underwent a closed intramedullary rodding of the tibia at Monmouth Medical Center.*fn3 After surgery, plaintiff remained in the hospital for five days. Post-operatively, plaintiff remained out of work for three months, during which time she required physical therapy. She also took medication for pain and for treatment of a pulmonary embolism that had developed from either the injury, or the treatment of the injury, or both. During those three months, plaintiff was unable to move about without the assistance of a wheelchair, walker, crutches, or a cane.

Ultimately, plaintiff returned to work and performed her daily activities with the use of a cane through the spring of 2003. Plaintiff complains of a loss of strength in her right leg; weather-related aches, pains, and swelling; fatigue with extended physical activity; and an inability to participate in certain physical activities that she formerly enjoyed, such as yoga and swimming. Plaintiff's medical expert opined that these complaints are permanent. It was also Dr. Lessing's opinion that although the fractures had healed, the hardware would remain in plaintiff's leg for the rest of her life because "there's significant risk to taking it out . . . . Any surgery from the pelvis on down is high risk for her in terms of another clot and another embolus. There's no reason to take the rod out and there's good reason not to." Although defendant's medical expert opined that plaintiff could have the rod and screws removed because the factures had healed, possibly alleviating some of her present complaints, he did not recommend that course of action. Plaintiff's life expectancy was forty-one years from the date of the accident.

On May 16, 2003, plaintiff filed her complaint against Mercer Cemetery Corporation*fn4 and the City, alleging that defendants were negligent in their maintenance and control of the Park, causing her to fall and suffer permanent injuries. On or about March 16, 2005, plaintiff moved for partial summary judgment on the issues of the City's negligence, proximate cause, and whether she had met the threshold for the recovery of pain and suffering damages under the Act. On May 2, 2005, the motion judge granted partial summary judgment, determining that the City was negligent and that plaintiff's injuries were sufficient to recover pain and suffering damages under N.J.S.A. 59:9-2d. However, the judge denied plaintiff's motion to strike defendants' comparative negligence defense, determining that the issues of plaintiff's comparative negligence and proximate causation as to both parties were jury questions. The City moved for reconsideration, and the motion was denied by order of August 19, 2005. Following a jury trial before a different judge, the jury returned a verdict in favor of plaintiff on all remaining issues and awarded her damages in the amount of $1,640,000. An order confirming the jury's verdict was entered on August 19, 2005.

On appeal, the City argues:

POINT I.

THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR RECONSIDERATION IN FINDING THAT THE CITY OF TRENTON WAS NEGLIGENT AS A MATTER OF LAW AND THAT THE PLAINTIFF MET THE TITLE 59 INJURY THRESHOLD AS A MATTER OF LAW.

POINT II.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION IN LIMINE THAT IT APPLY THE TORT CLAIMS ACT REQUIREMENTS FOR DANGEROUS CONDITIONS OF PUBLIC PROPERTY UNDER THE GOVERNING STANDARD, N.J.S.A. 59:4-1, ET SEQ.

POINT III.

THE TRIAL COURT IMPROPERLY BARRED THE TESTIMONY OF A CRITICAL DEFENSE WITNESS, THEREBY EXCLUDING EVIDENCE THAT WAS MATERIAL AND NECESSARY FOR THE PRESENTATION OF LIABILITY DEFENSES AT TRIAL.

POINT IV.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S CASE AT THE CLOSE OF THE EVIDENCE BASED UPON THE PLAINT[I]FF'S FAILURE TO PROVE LIABIL[IT]Y AGAINST THE DEFENDANT UNDER N.J.S.A. 59:4-1 ET SEQ. AND HER FAILURE TO MEET THE REQUIREMENTS FOR PAIN AND SUFFERING DAMAGES UNDER N.J.S.A. 59:9-2[d].

POINT V.

THE JURY'S VERDICT ON LIABILITY AND DAM[A]GES WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VI.

THE APPELLATE COURT SHOULD REVERSE THE JUDGMENT OF THE TRIAL COURT AND RULE ON THE MERITS ...


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