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Morey v. Borough of Wildwood Crest

October 12, 2007

LEWIS AND FRANCES MOREY, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF WILDWOOD CREST, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-7051-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 25, 2007

Before Judges Skillman and Winkelstein.

On June 19, 2002, plaintiff Lewis Morey was watching his son play baseball at the Little League field in the Borough of Wildwood Crest. During the game, plaintiff walked outside the field to smoke a cigarette. On his way back, plaintiff fell on a sidewalk owned and maintained by defendant Borough of Wildwood Crest. As a result, he suffered a ball and joint displacement of his artificial hip that had been implanted two months before the accident.

Plaintiff alleged that the fall was caused by his tripping over a "lip" in the sidewalk that was between 3/8 and 1 inch higher than the adjoining concrete slab. Plaintiff claimed that this lip was a "dangerous condition of public property," which subjected Wildwood Crest to liability under the Tort Claims Act, N.J.S.A. 59:1-1 to -12.3.

According to plaintiff, the accident occurred after he heard his son hit a home run and was returning to the ball field to give him a "high five" as he rounded third base. Plaintiff alleged that he walked back to the field at a "normal" pace and that he had nothing in his hands. As plaintiff approached a gate in the fence surrounding the field, he tripped over the lip in the sidewalk and fell.

Four eyewitnesses to the accident in addition to plaintiff testified at trial. Several of those eyewitnesses testified to versions of the accident that were significantly different than plaintiff's version. Their testimony is discussed later in this opinion.

In response to interrogatories, the jury found that the raised lip in the sidewalk outside the Little League field constituted a dangerous condition of public property, but that this condition was not a proximate cause of plaintiff's injuries. Based on this verdict, the trial court entered final judgment in Wildwood Crest's favor. The trial court subsequently denied plaintiff's motion for a new trial. Plaintiff appeals, arguing that the verdict constituted a miscarriage of justice.

In order to prove a tort claim against a public entity for personal injuries caused by a dangerous condition of public property, a plaintiff must establish that: (1) a dangerous condition existed on the property at the time of the injury; (2) the dangerous condition was the proximate cause of the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; (4) either (a) a negligent or wrongful act or omission of an employee of the public entity created the condition or (b) the public entity had actual or constructive notice of the condition a sufficient time before the accident to have protected against it; and (5) the action or inaction of the public entity in respect to its effort to protect against the condition was palpably unreasonable.

N.J.S.A. 59:4-2.

Because the judgment dismissing plaintiff's complaint was based solely on the jury's finding that the lip in the sidewalk outside the Little League field was not a proximate cause of plaintiff's injuries, this appeal turns on the sufficiency of the evidence to support the jury's finding that plaintiff failed to establish this element of a cause of action under N.J.S.A. 59:4-2.

The requirement of a showing of a proximate causal relationship between a dangerous condition of public property and an injury allegedly caused by that condition is essentially the same as in a common law negligence action. Garrison v. Township of Middletown, 154 N.J. 282, 307 (1998). Proximate cause has been defined as "'any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred.'" Ibid. (quoting Polyard v. Terry, 160 N.J. Super. 497, 511 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979)). To establish proximate cause, a plaintiff must show that the defendant's negligence was a "substantial factor" in causing his or her injuries. Rappaport v. Nichols, 31 N.J. 188, 203 (1959).

The threshold issue in determining proximate cause is whether the alleged dangerous condition of public property "constituted a cause in fact of plaintiff's loss." Daniel v. Dep't of Transp., 239 N.J. Super. 563, 594 (App. Div.) (quoting Kulas v. Pub. Serv. Elec. & Gas Co., 41 N.J. 311, 317 (1964)), certif. denied, 122 N.J. 325 (1990). "An act or omission 'is not regarded as a cause of an event if ...


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