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Press v. Borough of Point Pleasant Beach

January 28, 2010

SHIRLEY J. PRESS, PLAINTIFF-APPELLANT,
v.
BOROUGH OF POINT PLEASANT BEACH, AND JERSEY CENTRAL POWER AND LIGHT CO., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2536-05.

The opinion of the court was delivered by: R. B. Coleman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 1, 2008

Before Judges R. B. Coleman, Sabatino and Simonelli.

Plaintiff Shirley Press, who tripped over a misaligned curb stop in a municipal parking lot that she alleges was poorly illuminated, appeals from three orders of the Law Division. One of the orders, dated January 18, 2008, granted reconsideration of a November 2, 2007 order, but denied plaintiff's request to vacate that order, which granted summary judgment in favor of defendant Point Pleasant Beach; the second order, the November 2, 2007 order, granted summary judgment in favor of Point Pleasant Beach; and the third order, dated March 2, 2007, granted summary judgment in favor of defendant Jersey Central Power and Light Company (JCP&L), which owned and maintained the lights installed at the municipal parking lot. Viewing the facts in the light most favorable to plaintiff, and considering the legal arguments raised by plaintiff, we nevertheless affirm each of the orders entered by the Law Division.

The relevant facts established by the record are the following: on August 28, 2003, at approximately 9:00 p.m., Charlotte Kroeger drove herself and plaintiff Shirley Press to see the Point Pleasant Beach public fireworks. That evening, Kroeger parked her car in the same municipal parking lot on Inlet Drive that the two women used each time they attended the fireworks on numerous occasions during the past two years. Plaintiff exited the car's passenger door holding a leash attached to her dog. As she proceeded toward the nearby boardwalk area, plaintiff tripped over a concrete curb stop and, as a result of her fall, plaintiff sustained injuries to her shoulder, arm and foot. She and Kroeger went to the emergency room after taking the dog home, but plaintiff did not report the incident to the Point Pleasant Police Department until September 22, 2003.*fn1

Plaintiff described the curb stop she tripped over as "crooked" and "misplaced." Kroeger also certified that the curb stop was misplaced. Plaintiff's expert, William Poznak, in a report dated November 9, 2007, opined that it is evident from oil drippings depicted in photographs of the parking stall where the "misaligned bumper had been previously located, that the bumper had been in this location for a least a few weeks or more." During such period of time, plaintiff suggests the municipality should have become aware of the danger the misplaced curb stop posed.

Point Pleasant Beach, however, denied having actual or constructive notice of the misplaced curb stop that caused Press's fall. Robert Meany, the Director of Point Pleasant Beach Department of Public Works (Public Works), testified that the concrete curb stops in the parking lot are "each secured by two pieces of rebar" that are driven into the pavement. Public Works does not perform scheduled inspections of the parking lot; however, trash collectors and patrolling police are instructed to inform Public Works if they notice anything that is out of place. According to Meany, in the event there was a report that a curb stop is out of place, one of the supervisors in Public Works would assign an employee to do whatever was needed to remediate the problem.

The lights within the municipal parking lot are owned, controlled and maintained by JCP&L, which asserts that its agreement with the municipality does not guarantee or warrant continuous and uninterrupted illumination of the subject areas. The agreement between Point Pleasant Beach and JCP&L and the Tariff filed with the Board of Public Utilities (BPU) provide, however, that JCP&L will provide service to fixtures and luminaire cleaning on a scheduled basis as well as non-scheduled fixture maintenance and will repair as necessary.

In her answers to interrogatories, plaintiff indicated that she "fell over a cement parking barrier that was mislocated, on an angle of thirty-five to forty degrees, not lined up right that was in the dark as the lot was dork [sic] because [a] street light was not on, not lighted." She further stated in response to supplemental interrogatories that:

JCP&L did not maintain the lights the way they should have. The lights were off when I fell. The bulb had been going out [sic] and then would go on for a short time and then off again, leaving the area dark. While it was out, the area was dark and, as a result, I could not see the mislocated concrete car-bumper curbing in the parking lot.

Plaintiff faults JCP&L for its failure to inspect and its failure to replace failed bulbs that were dark for periods of time during the night.

In ruling on JCP&L's motion for summary judgment, the Law Division judge concluded that "from a public policy point of view, . . . it would be inappropriate to impose this duty on the utility" to be responsible for every failure in the system. The judge observed that power companies are "almost ubiquitous." Hence, it could be overwhelming if they were to be held responsible for every failure in the system. The judge continued, noting that such a duty "would not be minimal; it would [be] massive and would clearly in a negative way impact the public interest." Under the circumstances, the court granted summary judgment in favor of JCP&L.

As for Point Pleasant Beach's separate motion for summary judgment, the judge determined that he was "not satisfied . . . that there's sufficient evidence here from which a jury could reasonably conclude that the [m]unicipality . . . had constructive notice of the alleged dangerous condition here." According to the judge, the opinion of plaintiff's expert, in conjunction with the expert's review of the photographs that had never been adequately authenticated, did not constitute sufficient evidence from which a jury could conclude that the municipality had constructive notice of an alleged dangerous condition within the meaning of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. In addition, the judge was of the opinion that the municipality's conduct was not palpably unreasonable within the meaning of the Tort Claims Act.

Lastly, at the motion for reconsideration, which challenged only the grant of summary judgment in favor of the Borough, the court concluded that it did not "see anything here that would cause me to revisit my earlier determination." The judge reiterated that there was no evidence "from which a jury could reasonably conclude . . . that the Borough had sufficient notice of this condition."

We agree with each of the motion judge's rulings, and affirm the dismissal of plaintiff's complaint against the municipality and the disposition of the motion for reconsideration substantially for the reasons articulated by the motion judge in his ruling from the bench on November 2, 2007 and as reiterated in addressing the motion for reconsideration on January 18, 2008. See also N.J.S.A. 59:4-2 and N.J.S.A. 59:4-3. We base our affirmance of the grant of summary judgment in favor of JCP&L on our agreement with the motion judge that there was no competent evidence from which a jury could conclude that JCP&L had actual or constructive notice of any problem with the light sufficiently in advance of the accident that it could have taken steps to remedy the condition. The motion judge also ...


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