March 25, 2010
ANTOINETTE LUCIANO AND HECTOR LUCIANO (WIFE AND HUSBAND), PLAINTIFFS-APPELLANTS,
CITY OF ATLANTIC CITY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2191-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 1, 2010
Before Judges Reisner and Yannotti.
Plaintiffs Antoinette Luciano (Antoinette) and Hector Luciano (Hector) appeal from an order entered by the trial court on April 17, 2009, granting summary judgment in favor of defendant City of Atlantic City (City), and an order entered on May 15, 2009, denying their motion for reconsideration. We affirm.
Plaintiffs filed a complaint in the Law Division in which they alleged that on January 3, 2007, Antoinette tripped on a raised, rusted and bent over nail that was protruding upward from the City's boardwalk. Plaintiffs alleged that the nail got stuck in Antoinette's shoe and, as a result, she fell to the boardwalk. Plaintiffs further claimed that the City's employees had created the dangerous condition on its property. They alleged that the City, through its agents, servants and employees, had acted in a negligent, careless and reckless manner by failing to inspect, find, repair and warn of the dangerous condition.
They also claimed that the City, through its agents, servants and employees, had actual and/or constructive notice of the dangerous condition within a sufficient time prior to Antoinette's fall "to have taken measures to protect against the dangerous condition[,]" in accordance with N.J.S.A. 59:4-2(b). In addition, plaintiffs asserted that the City's failure to correct the dangerous condition was "palpably unreasonable."
Antoinette alleged that, in the fall, she sustained serious, permanent and disabling injuries. Hector claimed that, as a result of the City's negligence and/or carelessness, he had been deprived of his spouse's services and consortium. Plaintiffs sought compensatory damages, interest and costs of suit. At her deposition, Antoinette testified that, after she fell, she looked at the nail. Antoinette said that the nail was old, big and bent and "looked like it had a little rust on it[.]" She stated that it looked as if someone had "hammered it down."
Salvatore Catanese, Jr. (Catanese), is a Public Works Investigator for the City's Department of Public Works, and he is assigned to the Beach and Boardwalk Division. Catanese testified at a deposition that sometime in the 1980's, the City stopped using nails to secure the boards on the boardwalk and began to use screws instead. Catanese also testified that he inspects the boardwalk every day. He said that on January 2, 2007, he walked past the spot where Antoinette fell. He did not observe the nail.
Catanese stated that the nails used on the boardwalk were basically silver in color. He was shown a photograph of the nail, which was said to depict the nail that Antoinette fell on. Caatanese stated it looked "kind of dark." He said that, if he saw a nail in that condition, he might call a carpenter to remove it. Catanese also said that it would be unacceptable for a City carpenter to hammer down a raised nail in the boardwalk unevenly, the way the nail was depicted in the picture.
On March 13, 2009, the City filed a motion for summary judgment. In support of its motion, the City submitted an affidavit by Catanese, in which he stated that the City's Beach and Boardwalk Division has twenty nine full-time employees. Eight of those employees are assigned to inspect and maintain the boardwalk. According to Catanese, one employee "has the sole function of inspecting the boardwalk on a daily basis." Catanese also said that less than one percent of the City's annual budget is devoted to the Beach and Boardwalk Division, and only about twenty-five percent of that amount is allocated to the repair and inspection of the beach and boardwalk.
The trial court considered the motion on April 17, 2009. The court filed a memorandum of decision on that date, in which it concluded that there was no genuine issue of material fact and the City was entitled to judgment as a matter of law. The court entered an order dated April 17, 2009, memorializing its decision. Plaintiffs filed a motion for reconsideration, which the court denied by order entered on May 15, 2009. This appeal followed.
Plaintiffs argue that the trial court "improperly assumed" the role of the finder of fact by granting the City's motion for summary judgment. We disagree.
Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid. We apply these standards in reviewing a trial court's ruling on a summary judgment motion. Liberty Surplus Ins. Co. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).
The New Jersey Tort Claims Act provides that a public entity may be liable for an injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under [N.J.S.A.] 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. [N.J.S.A. 59:4-2.]
A public entity is deemed to have "actual notice of a dangerous condition" when it had "actual knowledge of the existence of the condition and knew or should have known of its dangerous character." N.J.S.A. 59:4-3(a). In addition, a public entity is deemed to have "constructive notice" of a dangerous condition if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. [N.J.S.A. 59:4-3(b).]
However, a public entity will not be liable for "a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." N.J.S.A. 59:4-2.
In its memorandum of decision dated April 17, 2009, the trial court noted that plaintiffs had not presented any evidence showing that the City had actual notice of the raised and bent-over nail on the boardwalk. The court additionally noted that plaintiffs' claim that the City had constructive notice of the nail was based on photographs of the nail that show evidence of rust, along with the presence of an adjacent screw.
The court stated that plaintiffs had not presented evidence showing that a City employee placed the screw on the boardwalk or "presented evidence that establishes that the presence of rust on the nail must mean that the nail has been exposed to the elements for a significant period of time sufficient to give rise to an inference of constructive notice." The court additionally stated that plaintiffs had not presented sufficient proof to show that the City's "failure to find and repair [the] nail in the course of its established maintenance routine was 'palpably unreasonable.'"
Plaintiffs contend that, under N.J.S.A. 59:4-2, they are not required to prove notice of a dangerous condition if an employee of a public entity created the dangerous condition by "a negligent or wrongful act or omission[.]" Plaintiffs' argument fails, however, because they did not submit sufficient evidence to show that a City worker created the alleged dangerous condition.
Although it might be reasonable to infer that a City employee placed the screw in the boardwalk, the record does not indicate when that might have happened. Moreover, there is no basis for assuming that the placement of the screw caused the nail to protrude from the board, and no basis for any inference that the failure to remove the nail was "a negligent or wrongful act or omission[.]"
Thus, plaintiffs were required to show that the City had actual or constructive notice of the alleged dangerous condition. As stated previously, plaintiffs did not present any evidence showing that the City had actual notice of the raised nail. They argue, however, that there was sufficient evidence from which a reasonable fact finder could infer that the City had constructive notice of the condition.
Again, we disagree. Plaintiff failed to present sufficient evidence to establish that the condition on the boardwalk existed "for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3(b). As we stated previously, Catanese testified that he did his daily walk-through in the area where Antoinette fell on the day before the accident. He did not observe the nail. The City's workers were several blocks away on the same day. It is highly improbable that they observed a nail from that distance. The nail apparently showed signs of rust, but the record did not indicate when the rust formed.
Plaintiff did not present sufficient evidence to allow a reasonable jury to draw an inference as to the length of time the alleged dangerous condition existed.
Furthermore, even were we to assume that plaintiffs had presented sufficient evidence to raise an issue of fact as to whether a City employee created the alleged dangerous condition and whether the City had constructive notice of that condition, plaintiffs failed to present sufficient proof to show that the City's action to protect against the alleged dangerous condition, or its failure to take such action, was palpably unreasonable. As the trial court observed in a letter dated April 21, 2009, responding to a letter by plaintiffs' attorney citing additional legal authority, "one nail on a [four and one-half] mile [b]oardwalk is not even a scintilla of proof that the City of Atlantic City was palpably unreasonable with regard to maintenance of this public promenade."
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