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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...