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Piren v. City of Trenton

July 22, 2009

KAREN PIREN, PLAINTIFF-APPELLANT,
v.
CITY OF TRENTON, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-2634-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 14, 2008

Before Judges R. B. Coleman and Sabatino.

Plaintiff Karen Piren appeals from an order dated September 7, 2007, denying her motion for reconsideration of an order dated June 22, 2007, which granted summary judgment in favor of the City of Trenton. We affirm both orders.

On October 8, 2003, plaintiff suffered a slip and fall from stepping into a pothole or depression while crossing the street at the intersection of Willow and Hanover Streets. Both of plaintiff's elbows were fractured in the fall. As a result of the accident, plaintiff missed four weeks of work and an additional two weeks in only a limited capacity, as she could not drive.

Plaintiff was treated by Dr. Elliot Decker on October 13, 2003. Dr. Decker's notes indicated that plaintiff "may require physical therapy," she "may not regain full range of motion," and she "may have some permanent ongoing symptoms." A follow up evaluation one month later revealed that plaintiff had some residual stiffness, but there was no further displacement and there was some evidence of early healing.

On September 29, 2005, just short of two years after the fall, plaintiff filed a complaint naming as defendants the City of Trenton, John Does 1-10, and ABC Corporations 1-10 in Mercer County Superior Court, Law Division. She sought compensatory damages for the injuries resulting from her October 2003 fall. At the request of plaintiff's attorneys, she was examined on December 15, 2005, by Dr. Jon W. Ark of Princeton Orthopedic Associates. In his report, Dr. Ark recorded that plaintiff's left elbow "is slightly limited compared to the right in that she has hyperextension of her right arm at fifteen degrees and on the left at only five degrees. She has otherwise full pronation and supination." Plaintiff reported she had very slight discomfort about the radial head.

On November 2, 2006, plaintiff was examined at the request of the City of Trenton. The examining physician, Dr. Barry J. Snyder, reported that plaintiff felt like she had recovered "almost full mobility of both elbows." Dr. Snyder observed that "[w]ith only a five-degree difference of extension and flexion of her elbows, both fall within the normal range of motion defined by the American Medical Association." Further, Dr. Snyder noted that "[s]ubjective complaints of discomfort are reasonable for such injuries, but there are no objective findings of permanent physical impairment resulting from the injury." Dr. Snyder concluded that plaintiff "has reached maximum medical improvement and does not require continued treatment or restricted activities."

On May 25, 2007, the City of Trenton filed a motion for summary judgment. Following oral argument on June 22, 2007, Judge Paul T. Koenig, Jr. granted that motion for summary judgment. Plaintiff's subsequent motion for reconsideration was denied on September 7, 2007. It is from that order that plaintiff appeals.

On appeal, plaintiff makes the following arguments:

POINT I: THE TRIAL COURT COMMITTED AN ERROR IN GRANTING DEFENDANT SUMMARY JUDGMENT AND DENYING THE MOTION FOR RECONSIDERATION BECAUSE THE PLAINTIFF HAS ASSERTED A VIABLE CAUSE OF ACTION PURSUANT TO THE "DANGEROUS CONDITION" PROVISION OF THE NEW JERSEY TORT CLAIMS ACT, N.J.S.A. 59:4-2.

POINT II: THE TRIAL COURT ERRED IN FINDING THAT THE CITY OF TRENTON'S RIGHT TO DETERMINE THE ALLOCATION OF RESOURCES UNDER N.J.S.A 59:2-3 PROHIBITED A FINDING OF PALPABLE UNREASONABLENESS, AS THE DEFENSE FAILED TO ASSERT THE SAME AND MEET ITS BURDEN OF PROOF NECESSARY TO SUCH A FINDING.

We have carefully considered those arguments and conclude they lack sufficient merit to warrant a reversal.

"Reconsideration is a matter within the sound discretion of the Court, to be exercised in the interest of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). "Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either (1) the court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. This is not such a case. The standard for summary judgment is also well established. Judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."

R. 4:46-2(c). In reviewing the record, all inferences are drawn in favor of the opponent to the motion. The court must determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995) (quoting Anderson ...


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