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Pote v. City of Atlantic City

January 19, 2010

KATHRYN POTE AND DANIEL POTE, H/W, PLAINTIFFS-APPELLANTS,
v.
CITY OF ATLANTIC CITY, ATLANTIC CITY CONVENTION CENTER AUTHORITY, BOARDWALK HALL, ATLANTIC CITY CONVENTION AND VISITORS AUTHORITY, NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, ARA FACILITIES MANAGEMENT, INC., FMG PARTNERS, AND ARAMARK, DEFENDANTS, AND SMG, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-643-07.

The opinion of the court was delivered by: Axelrad, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: October 7, 2009

Before Judges Axelrad, Sapp-Peterson and Espinosa.

Plaintiffs Kathryn and Daniel Pote appeal summary judgment dismissal of Kathryn's premises liability complaint against SMG, the manager of Boardwalk Hall, for injuries allegedly sustained when she slipped and fell on an icy patch of snow on the Atlantic City Boardwalk as she was approaching Boardwalk Hall to attend a show.*fn1 Plaintiffs also appeal denial of their motion for reconsideration. They do not appeal the dismissal of their complaint against Atlantic City based on its immunities under the Tort Claims Act. We affirm.

Viewed most favorably for plaintiff, Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 523 (1995), the motion record reveals the following. The Atlantic City boardwalk is approximately four-and-a-half miles long and varies in width from about twenty feet in the inlet section to more than sixty feet in front of Boardwalk Hall. On one side of the boardwalk is the beach that goes down to the ocean, and on the other side of the boardwalk are buildings, including stores and businesses, casinos and Boardwalk Hall. It is undisputed that Atlantic City not only owns and controls the boardwalk but that it has undertaken responsibility for the removal of snow and ice. Boardwalk Hall, located at 2301 Boardwalk, is owned by the State of New Jersey and is managed and maintained by SMG pursuant to a contract with the New Jersey Sport and Exposition Authority. Boardwalk Hall is adjacent to the boardwalk and its only public entrance is by way of the boardwalk. It has a flat surface or apron of marble, terrazzo or concrete that extends from the doors of the building to a series of columns that abut the boardwalk.

Approximately five inches of snow fell on Thursday, February 24, 2005, in Atlantic City, beginning at about 7:30 a.m. City employees conducted snow removal detail and inspections on the boardwalk on Friday, but did neither on Saturday, February 26. On that Saturday, no one from the public works department was working.

On Saturday, plaintiff came to Atlantic City on a bus that arrived at Trump Casino at around 10:30 a.m. She and several other passengers had tickets for the "Mummers Show of Shows" at the adjacent Boardwalk Hall. There was an expected crowd of about 5,000 people for each of the two shows that day. Plaintiff walked through the Trump building out onto the boardwalk and observed both the wood of the boardwalk and numerous patches of ice and snow covering the wood. Plaintiff described those patches as "piles" and "then they melted." She also observed a plow line of snow along the edge of the boardwalk where the businesses were located, including next to the cement apron of Boardwalk Hall.

According to plaintiff's answers to interrogatories, when she was "about 50 feet back from the doors [of Boardwalk Hall], about 10 feet away from the cement apron,... [she] slipped and fell on the uneven ice that formed on the boardwalk where it had been previously plowed and cleared and had melted and refroze." In depositions, plaintiff further explained that the ice she slipped on was grayish in color; she was five to eight feet from the nearest pile of snow, which was on the plow line; and there was no snow immediately next to the place where she fell. When asked how she thought the ice got onto the boardwalk at the place where she slipped, plaintiff responded that she "believe[d] it froze from the weather." Plaintiff did not witness anyone cleaning snow or ice off the boardwalk or off the cement apron of Boardwalk Hall at that time. Plaintiff was taken to Atlantic City Medical Center and she obtained follow-up medical treatment not relevant to this motion.

Teresa Alicea and Colleen Hight, members of plaintiff's bus theater group, also submitted affidavits on her behalf. Alicea, the group leader, stated that she observed what appeared to be hundreds of people in line on the boardwalk from Trump Casino to Boardwalk Hall waiting to purchase tickets for the noon Mummers Show. She further observed a snow line on the boardwalk in front of Boardwalk Hall and patches of snow, ice and slush on the boardwalk in the area in front of Boardwalk Hall. Alicea also noticed "piles of snow around trash cans and up against the pillars immediately outside Boardwalk Hall." She commented that there was "no evidence of salting or chemical treatment of snow or ice on the boardwalk in front of Boardwalk Hall." Alicea led her group past the line of people waiting to buy tickets and as she began to approach the entrance to Boardwalk Hall, she "slipped on a patch of snow and slushy ice and almost went down" on the boardwalk, "just a short distance from the tile area at the entrance to Boardwalk Hall." Right after that, she heard a noise and saw that plaintiff had fallen on the boardwalk on the patch of snow and slushy ice that she had just slipped on.

Alicea reported the incident to the Boardwalk Hall security staff. When she exited onto the boardwalk after the show two hours later, Alicea noticed that more of the snow and ice patches had been removed, including the patch where plaintiff had fallen, and that some of the ice and snow had been shoveled or swept up against the trash cans that were outside Boardwalk Hall. As she did not observe any city workers present, Alicea therefore assumed the Boardwalk Hall maintenance crew had removed the snow.

Hight's affidavit was similar to that of Alicea's. She observed that the "patch of ice and snow which caused [plaintiff] to slip and fall was fairly close to a pile of melting snow in front of one of the pillars of Boardwalk Hall." Later, she noticed that the tile surface behind the pillars at the Hall's entrance was cleared of snow, although there was some wetness on the tile area. It appeared to her that the snow from the tile area had been pushed onto the boardwalk and also piled on the boardwalk in front of Boardwalk Hall's pillars. Hight noted that she slipped on a patch of snow and slushy ice on the boardwalk in the same vicinity moments before plaintiff.

Salvatore Catanese, Atlantic City's Public Works Investigator, testified in depositions that the City was the entity responsible for maintaining and removing snow and ice from the boardwalk and explained the procedures followed by the department. He stated that when it snowed, before and after the incident, he observed what he assumed to be Boardwalk Hall employees "clearing snow out in front of their building." He was unaware whether the clearing included "taking the snow from the boards themselves." He had no facts or records to indicate ...


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