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McMorrow v. State

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 11, 2008

KERRY MCMORROW, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, COUNTY OF MIDDLESEX, DEFENDANTS, AND BOROUGH OF CARTERET, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. L-5777-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 11, 2008

Before Judges Wefing and Collester.

Plaintiff appeals from trial court orders granting summary judgment to defendant and later denying reconsideration to plaintiff. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff lives on Coolidge Avenue in Carteret, close to the intersection of Coolidge and Leber Avenues. In the winter of 2005 an employee of the Carteret Sewer Department noticed that a hole had developed in the pavement at a catch basin at that intersection and, in accordance with the municipality's regular practice, put a steel plate over the hole to prevent anyone from tripping. The plate was approximately three feet long and extended into the crosswalk at the intersection but did not entirely occupy it. The plate itself did not have a completely smooth surface; it is described in discovery as a diamond plate.

On May 1, 2005, plaintiff left his house and walked across the street to borrow some sugar from a neighbor. As he returned, he speeded up because it was drizzling. When he stepped on the plate, his foot slipped and he fell, breaking his leg and ankle. He then commenced this suit, seeking damages for his injuries.

The trial court granted summary judgment to the Borough of Carteret. Plaintiff then moved for reconsideration, but was unsuccessful. This appeal followed.

Plaintiff contends that a jury question existed whether the metal plate was a dangerous condition as that term is used in the Tort Claims Act, N.J.S.A. 59:4-1. The statute defines a dangerous condition in the following manner:

"Dangerous condition" means 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.

Plaintiff contends that the steel plate constituted a dangerous condition because it became slippery when it was wet. We agree with defendant that plaintiff, who had no expert, was unable to establish that the presence of this plate created a "substantial risk of injury." Without such expert testimony, the jury would have no basis to conclude whether this particular plate, which as we have noted was not completely smooth, was not of the proper kind or whether the manner in which it was placed was improper; that is, the jury would have no basis to determine whether the plate "create[d] a substantial risk of injury."

N.J.S.A. 59:4-2 sets forth the elements a plaintiff must establish in order to establish liability on the part of a public entity on a claim of a dangerous condition. A plaintiff must establish the existence of a dangerous condition, that the dangerous condition existed at the time of the injury, that the dangerous condition proximately caused the injury, and that the "dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred." Plaintiff stresses that the determination whether the property at issue constitutes a dangerous condition within the meaning of N.J.S.A. 59:4-1 is ordinarily a question of fact for the jury. Plaintiff argues that the trial court erred in taking this question away from the jury.

We do not agree. As then-Chief Justice Zazzali noted in Vincitore v. Sports & Expo Auth., 169 N.J. 119, 124 (2001), "Like any other fact question before a jury, [that determination] is subject to the court's assessment whether it can reasonably be made under the evidence presented." (quoting Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)).

Defendant correctly stresses that plaintiff knew of the presence of this plate. He lived close to the intersection and was aware that it had been placed there some months earlier. In addition, he successfully crossed it on his way to his neighbor's. In this situation, the presence or absence of a warning cone is immaterial.

Affirmed.

20080811

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