On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-715-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and LeWinn.
Eighty-one-year-old plaintiff Reza Amirkalali was injured on April 24, 2005, when he fell on the boardwalk in the Borough of Bradley Beach. He appeals from a March 7, 2007 summary judgment that dismissed his complaint with prejudice. We affirm.
At his deposition on September 7, 2006, plaintiff testified that on April 24, 2005, between 11:30 a.m. and 12:00 noon, he was walking on the Bradley Beach boardwalk when he fell. When asked how he fell, he responded, "I was walking on the wood planks and all of a sudden I noticed my foot got stuck in something, and immediately I just fell. With all of my body I fell." He did not remember which foot got stuck, but he fell forward, striking his chest, nose and head. When he got up, he noticed that "part of the wood was raised" about two inches.
Plaintiff was taken to the hospital where he received stitches in his nose. He later learned that his nose had been broken.
The Borough's Director of Public Works, Richard Bianchi, Jr., testified that he and his employees spend a considerable period of time at the boardwalk every day, but he does not designate a specific employee to inspect the boardwalk. He testified that he was unaware of any previous incident at the location where plaintiff fell.
Bianchi inspected the boardwalk after plaintiff's fall. He observed that two boards, which were ten feet long, were bowed in the middle, creating a bridge-like effect. He testified that the boards were nailed on the ends, but about a foot of the ten- foot-long boards had "popped up" about two inches in the middle. He had never seen boards bowed in a similar manner.
In support of his claim, plaintiff submitted the report of William Poznak, an engineer. Poznak indicated that the Borough's failure to repair "the buckled planks" was contrary to general safety practices and rules prevailing in the industry. Poznak expressed no opinion, however, as to how long the buckling had been there prior to plaintiff's fall.
On substantially these facts, the trial judge concluded that plaintiff had not demonstrated that the Borough had either actual or constructive notice of the buckled boards before plaintiff fell. Accordingly, the trial judge entered summary judgment in favor of defendant.
For plaintiff to be successful in his personal injury claim against defendant, he must prove that a dangerous condition existed on the boardwalk when he fell; the dangerous condition proximately caused his injury; the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; and that either a negligent or wrongful act or omission of a public employee, acting within the scope of his or her employment, created the dangerous condition, or that the Borough had either actual or constructive notice of the dangerous condition in sufficient time before plaintiff fell to have protected him against the condition. Posey ex. rel. Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 182 (2002) (citing N.J.S.A. 59:4-2). Here, the trial court dismissed the complaint on the grounds that the Borough did not have either actual or constructive notice of the bowed boards before plaintiff fell. We agree.
The record is devoid of evidence that shows how long the boards had been bowed before plaintiff fell. They may have bowed immediately before plaintiff stepped on them. Indeed, the boards may have "popped up" as plaintiff stepped on them. That the boards were bowed two inches after plaintiff's fall is insufficient to show how long, if at all, they were bowed before his fall.
Accordingly, we affirm the order dismissing plaintiff's complaint substantially for the reasons expressed by Judge Jamie Perri ...