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Aguilar v. Essex County Dep't of Parks and Recreation

July 9, 2009

IRSAN AGUILAR, PLAINTIFF-APPELLANT,
v.
ESSEX COUNTY DEPARTMENT OF PARKS AND RECREATION AND ESSEX COUNTY, DEFENDANTS-RESPONDENTS, AND CITY OF NEWARK, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6112-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 12, 2009

Before Judges Wefing, Parker and Yannotti.

Plaintiff Irsan Aguilar appeals from an order entered by the trial court on April 11, 2008, which dismissed plaintiff's claims against defendants Essex County and Essex County Department of Parks and Recreation (hereinafter, collectively "the County"). Plaintiff also appeals from an order entered on June 20, 2008, which denied his motions for reconsideration of the April 11, 2008 order and leave to amend the complaint to add additional defendants. For the reasons that follow, we affirm.

I.

In his complaint, plaintiff alleged that on September 11, 2005, at approximately 2:30 p.m., he injured his right leg while walking across a lawn in Weequahic Park in Newark, New Jersey (the "Park"). Plaintiff apparently was in the Park with his son and girlfriend. He was going to participate in a soccer game and he was waiting for the game to begin. The soccer coach suggested that plaintiff go to a nearby store to purchase some supplies and plaintiff agreed.

Plaintiff alleged that, as he walked across the lawn towards an exit near the main entrance to the Park, his right leg went into a hole or depression in the lawn. Plaintiff said that he fell backward onto his buttocks. With the assistance of his girlfriend and the coach, plaintiff returned to his home in New York City.

Plaintiff did not immediately seek treatment; however, several days later, plaintiff's friend drove him to a hospital in New York City. Plaintiff was diagnosed with a displaced fracture of the right tibia that extended into the pilon and articular surface. Plaintiff underwent two surgeries to stabilize and repair the fracture. He was unable to work for several months.

Plaintiff retained counsel on October 7, 2005. Counsel provided the County with notices of his claim pursuant to the Tort Claims Act (the "TCA"), N.J.S.A. 59:1-1 to 12-3. The County received the notices on November 18, 2005. The notices stated that plaintiff was seeking damages for injuries he had sustained on September 11, 2005, at approximately 2:30 p.m., when he fell to the ground after stepping in a hole while walking across a field in the Park.

The notices also stated that the injury occurred "in the area of the main exit from the soccer field approximately [nine feet] west of [the] macadam path and [sixty feet] east of a set of short metal benches and [twenty feet] south of a certain sewer/water vent." A drawing was attached to the notices identifying the specific location of the hole. Also attached to the notices were copies of twelve photographs that depicted the location of the hole.

Ronald Romano (Romano), an investigator for the County, responded to the notices by letter dated December 1, 2005. Romano stated that "there is no liability on the part of Essex County personnel[.]" Plaintiff thereafter filed his complaint on July 21, 2006.

Plaintiff provided the County with certified answers to interrogatories, dated October 18, 2006. In his answers, plaintiff again described the location of the fall as "approximately [nine feet] west of a macadam path and [sixty feet] east of a set of short metal benches and [twenty feet] south of a certain sewer/water vent." This was the same location that had been included in the notices of claim and shown on the attached diagrams.

In addition, plaintiff provided with his answers to interrogatories copies of twenty-four photographs of the site of the alleged accident, which included the photos submitted with the notices of claim. Plaintiff also described the hole in which he allegedly fell as being approximately one and one-half to two inches deep. He said that, at the time of the accident, the hole was "obscured by leaves and grass."

Plaintiff was deposed on April 18, 2007. He was shown several of the photographs that had been attached to the notices of claim and answers to interrogatories. Plaintiff testified that the photos did not appear to depict the hole in which he fell.

The attorneys present at plaintiff's deposition apparently realized that the photographs submitted with the notices of claim and the answers to interrogatories did not depict the place where plaintiff fell. On May 16, 2007, plaintiff furnished the County with copies of photographs, which showed a different hole in a different location of the Park.

Plaintiff thereafter served a report dated July 25, 2007, from his expert, Wayne F. Nolte (Nolte), Ph.D., P.E. Nolte attached to his report copies of photographs showing a large hole. In the report, Nolte stated that some of the photos had been taken "on the day of [the] accident" and some depicted the site as of July 9, 2007.

Nolte estimated that the hole shown in the photos was two feet in diameter and ten to twelve inches deep. He wrote that the photographs "show that the hole is a formed hole as if purposely dug either by hand or machine." He added that, "[t]he sides of the hole are rounded and worn and show that it was not freshly dug but had been there for some time."

Nolte additionally wrote that the hole was "directly over" the City's water main and a twelve inch pipe for the lawn basin. Nolte said that it appeared that the hole had been purposefully made as part of the repair and maintenance of one of the utilities. He added that:

[t]he fact that this hole contained what appears to be assembled bricks, rocks and stones as filler suggests that its presence was known and that an attempted repair was made but not made to the extent where it was a safe or reasonably safe repair. It is also evident from the photographs that vegetation and dried leaves blew into the hole indicating that it was not something that developed only seconds before [plaintiff's] accident.

After receiving Nolte's report, Carmen Raimo (Raimo), the County's Superintendent of Parks, compared the photos that were submitted with plaintiff's notices of claim and the photos attached to Nolte's report. Raimo concluded that the location shown in the photos provided with the notices of claim was different from the location shown in the photos attached to ...


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