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Cascone v. Borough of Belmar

December 29, 2009

SALVATORE CASCONE AND CELIA SORIANO CASCONE, H/W, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF BELMAR, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3581-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 7, 2009

Before Judges Yannotti and Chambers.

Plaintiff Salvatore Cascone has brought this action against defendant Borough of Belmar (the Borough) for injuries he sustained when he tripped and fell on a raised nail and board while jogging on the boardwalk in Belmar on June 17, 2005.*fn1 The trial judge granted the Borough's motion for summary judgment and dismissed the complaint, finding that plaintiff was unable to meet the requirements of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. Plaintiff appeals that decision to this court. We affirm.

The record indicates that on June 17, 2005, plaintiff was jogging on a wooden portion of the boardwalk in the Borough when he tripped and fell because of a raised nail and board, sustaining personal injuries. While plaintiff had jogged on the boardwalk many times before, he had no prior problems with the boardwalk until his accident. Indeed, earlier on the day of the accident, he had jogged on the opposite side of the portion of the boardwalk where the fall occurred, but he did not notice the raised nail and board. Plaintiff testified that when he later observed the portion of the boardwalk where he had fallen, "I saw how bad it was all over the place. It was rotten." He testified that after his fall, a Borough police officer told him that the "north end is in real rough shape."

The report of plaintiff's expert, a professional engineer who observed a photograph of the area where plaintiff fell, concluded that "one of the wooden planks near [the] restroom building was cracked, with one edge raised above abutting surface. Said projection was so located, that persons proceeding over same could easily be caused to stumble and fall." He opined that the boardwalk condition was "1. palpably unreasonable; 2. [a] nuisance in the public way; [and] 3. [t]he repair of same would have required very little time, effort and cost." Notably, he expressed no opinion on how long the dangerous condition had existed.

The record indicates that the Borough's Department of Public Works is responsible for the maintenance of the boardwalk. Over a period of years, the Borough has been replacing portions of the wooden boardwalk with a composite known as TREX, but by the time of plaintiff's fall, the portion of the boardwalk where plaintiff fell had not yet been replaced. At his deposition, the superintendent of the Borough's Department of Public Works, Andy Meuerle, testified that "during the summer months, we try to walk the boardwalk once a week, manpower provided and weather permitting. In the warmer months, we walk the boardwalk on a Monday in the beginning of the week and inspect it from benches to railings to boards to nails to everything." Meuerle also testified that the Department of Public Works does not keep records of complaints made about the boardwalk nor does it keep records of the maintenance and repairs done to the boardwalk.

In order to sustain a personal injury action against the Borough, plaintiff must meet the requirements of N.J.S.A. 59:4-2 of the Tort Claims Act. Under the provisions of that section, in order for a public entity to be liable for an injury caused by the condition of its property, a plaintiff must meet the following five requirements:

(1) that a dangerous condition existed on the property at the time of the injury,

(2) that the dangerous condition proximately caused the injury,

(3) that the dangerous condition created a foreseeable risk of the kind of injury incurred,

(4) that either (a) a negligent or wrongful act or omission of a public employee within the scope of his employment created the dangerous condition, or (b) that a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have protected against the condition and

(5) the action or inaction of the public entity in respect of its effort to protect against the ...


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