On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-345-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2009
Before Judges Cuff and Payne.
Plaintiff, Cindy Bolger, appeals from an order of summary judgment entered against her in her personal injury suit against the City of Bayonne. We reverse.
Plaintiff's claim arises from events occurring on May 12, 2005 in the vicinity of Fitzgerald Park in Bayonne, which is located between 26th and 27th Streets on the east side of Avenue C. City Hall is located immediately adjacent to the park between 27th and 28th Streets, fronting Avenue C. The city's Public Works, Parks and Recreation Department is located in City Hall.
At approximately 6:00 o'clock, plaintiff picked up her two daughters from their grandparents' home and proceeded with them through Fitzgerald Park to their residence. While in the park, the older daughter met friends and requested that the three stop. Plaintiff initially refused, but as they exited the park, she relented. The older daughter returned to her friends in the park; plaintiff and the younger daughter sat on a bench facing Avenue C.
Before plaintiff and the younger daughter sat down, plaintiff recognized that the front slat on the seat of the bench was broken, leaving a bolt exposed. She testified in deposition that the other benches in the vicinity were occupied; plaintiff's sister testified that the remaining benches were in worse condition than the one upon which plaintiff sat. In order to avoid injury to her daughter, plaintiff sat near the break. Her daughter sat on the intact end of the bench, with a Shop-Rite bag between them. Because she wished to keep track of her older daughter, plaintiff turned in her seat to face the park, and she sat in her habitual manner with one leg tucked beneath her.
After approximately ten minutes, plaintiff decided to leave, and she sent the younger daughter to summon the older one. As plaintiff stood up from the bench, the lace from the sneaker on the foot that had been tucked beneath her caught on the protruding bolt. As a consequence, plaintiff fell on her face, sustaining injury.
Following emergency room treatment, plaintiff returned to the park with her husband, who took six photographs of the bench. The next day, they returned, and the husband took additional photographs. Further photographs were taken later in the year. On appeal, we have been supplied with color laser copies of some or all of the photographs. However, they cannot be accurately correlated with deposition testimony and the parties' expert reports and do not clearly depict the condition of the wooden slats and bolt at the time of the accident and thereafter. It appears that Bayonne concedes that the photographs taken several months after plaintiff's accident demonstrate that, in the interim, the bench was painted while in its broken condition. The parties disagree whether the bench had been painted in its broken condition prior to the accident.
On or about January 17, 2007, plaintiff filed suit against the City of Bayonne, claiming that the city had failed "to use reasonable care to inspect and make the premises reasonably safe for the plaintiff" and that it created or maintained a nuisance. An answer was filed on Bayonne's behalf, which asserted thirty-six separate defenses, including discretionary activity immunity pursuant to N.J.S.A. 59:2-3c and -3d, which provide:
c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.
Additionally, Bayonne claimed that no liability could be imposed upon it for failure to protect against a dangerous condition of its property pursuant to N.J.S.A. 59:4-2 because the conditions precedent to the imposition of such liability had not been met.
By motion argued on November 21, 2008, Bayonne sought summary judgment. The motion transcript reveals that, prior to oral argument, the judge planned to deny summary judgment, having determined from the black and white photographs in the record that the bench had been repainted in is broken condition before the accident occurred. However, during oral argument, she was given color laser prints of the bench that she interpreted as depicting a raw, unpainted break in the wood. She therefore reserved decision, authorized further briefing, and in an order dated December 10, 2008, she granted summary judgment to Bayonne. Her succinct findings of fact and conclusions of law were as follows:
The City of Bayonne is immune from suit under NJSA 59:2-3 having exercised judgment and/or discretion in whether to provide resources and manpower to maintain this and other public park benches. Based on photographs, there is no genuine issue of material fact to be resolved at trial. There is indisputable proof by way of color photographs that the bench in question was not repainted in its broken condition before this accident.
A timely appeal from the judge's order ...