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Viana v. Township of Bloomfield

February 28, 2008

EMERSON VIANA AND ELKA SANCHEZ VIANA, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF BLOOMFIELD, DEFENDANT-RESPONDENT, AND COUNTY OF ESSEX, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7598-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 4, 2008

Before Judges Stern and C.S. Fisher.

Plaintiff and his wife filed a complaint in which it is claimed, among other things, that defendant Township of Bloomfield was negligent in placing a tree planter on a sidewalk, which interfered with his line of sight when struck by a vehicle while crossing that street. After carefully reviewing the record in light of the arguments raised, we reverse in part the summary judgment entered in favor of Bloomfield.

I.

Plaintiff claims he was crossing Dodd Street in Bloomfield at approximately 1:00 a.m. on September 12, 2003, when, as he reached the middle of the roadway, he saw an oncoming vehicle, attempted to turn back, and was struck by the vehicle at or near the roadway's center line. The vehicle stopped, and the driver stepped out, but then quickly re-entered the vehicle and drove off. The impact caused severe injuries and resulted in the amputation of plaintiff's left leg.

Plaintiff originally asserted Bloomfield's negligence with regard to the design of the area, where multiple roads intersect, and with regard to the maintenance of a pedestrian signaling device, which allegedly was not operating at the time of the accident. Later, plaintiff claimed that a planter blocked or hampered his line of sight toward the path traversed by the vehicle that struck him.

Bloomfield moved for summary judgment, arguing that the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, immunized it from the various theories of liability asserted by plaintiff. Bloomfield also argued that notwithstanding these purported tort claim defenses, the location of the planter could have had no effect on plaintiff's line of sight and, therefore, did not constitute a proximate cause of the accident.

The trial judge granted Bloomfield's motion for summary judgment. She first determined that plaintiff's negligent design allegation was without merit because Bloomfield did not design the intersection. In addition, the judge found that even if the pedestrian signaling device was inoperable at the time of the accident, there was no evidence to suggest that Bloomfield was actually aware or had constructive knowledge that it was not then operating. Plaintiff does not now contest these determinations.

The judge also found that it was unnecessary to consider the impact of the Tort Claims Act on the allegation that the planter was negligently placed. Instead, the judge examined the photographs of the intersection, the expert reports, and plaintiff's sworn statements as to how the accident occurred, and concluded that the planter could not have interfered with plaintiff's ability to see oncoming traffic. Plaintiff later unsuccessfully moved for reconsideration.

In his notice of appeal, plaintiff expressly requested our review of the order of June 23, 2006, which granted Bloomfield's motion for summary judgment, and the order of August 4, 2006, which denied plaintiff's motion for reconsideration. In his brief on the merits, plaintiff has also argued that the trial judge abused her discretion by permitting further discovery --by way of orders entered on April 12, 2006 and June 9, 2006 --after the discovery end date. We find no merit in plaintiff's arguments regarding these discovery orders, but we reverse in part the summary judgment and remand for further proceedings.

II.

We first consider plaintiff's arguments regarding the discovery orders. Bloomfield contends that they are not subject to review because plaintiff failed to reference them in his notice of appeal as required by R. 2:5-1(f)(3)(A). Although there is merit to this procedural argument, see, e.g., Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994), we need not give it further thought ...


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