On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2665-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2009
Before Judges Winkelstein and Gilroy.
Plaintiffs Nancy Martinez and Ulrico Martinez,*fn1 her husband, appeal from the March 14, 2008 order of the Law Division that granted summary judgment to defendant New Jersey Transit Corporation (NJT). We affirm.
Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. NJT owns and operates a train station in Trenton, New Jersey. The train station contains a stairway that descends from street level to Tracks 1 and 2. The stairway consists of thirty-two steps with a six-foot-wide landing at midpoint. The landing and steps are constructed of embossed steel plates.
On October 19, 2003, plaintiff, while wearing thin high heels, two to four-inches in height, descended the left-hand side of the stairway, holding onto the left handrail, when her right foot caught the edge of a raised floor plate on the landing. Plaintiff fell down the remaining sixteen stairs and suffered serious injuries.
On October 5, 2005, plaintiff filed her complaint, alleging that as an invitee of NJT, NJT negligently failed to "maintain the premises in a safe and reasonable fashion, so as to provide a safe place upon which pedestrians might walk."
In November 2007, NJT moved for summary judgment, contending that plaintiff could not prove that it had received actual or constructive notice of the alleged dangerous condition as required by N.J.S.A. 59:4-2 and -3. In opposition to the motion, plaintiff submitted a copy of a March 20, 2007 report of Ervin Leshner, a professional engineer.
Leshner inspected the stairway on March 13, 2007, and noted the following condition in the area where plaintiff fell:
The stairway consists of approximately 32 steps with a landing about 6 ft wide at [halfway] down. The floor and steps were embossed steel plates. On the landing and approximately 18 inches in front of the second tier of descending steps there was a separation between the plates. The gap between the plates measured at 10 inches from the left edge was .41 inches wide. There was a vertical separation at adjoining floor plates where the edge of the plate toward the next step down was .52 inches high.
Leshner supported his report with several photographs depicting the area that had been taken two and one-half years after the accident.
At oral argument on March 14, 2008, when asked by the trial court whether it was fair for the court "to assume that there ha[ve] been no prior accidents or incidents" with respect to the condition complained of, plaintiff's counsel responded that "[t]here's nothing in the record to suggest that there [were] any prior incidents . . . before [plaintiff's] fall." After the court stated that it would be speculative to determine when the platform fell into disrepair, plaintiff's counsel stated "[p]ossibly that when [NJT] installed these plates they weren't installed properly." The court then inquired of counsel whether plaintiff had any proof that the stairs had ...