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Tucker v. City of Newark

April 22, 2010


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8458-06.

Per curiam.


Argued March 24, 2010

Before Judges Stern, J. N. Harris, and Newman.

We consider septuagenarian-plaintiff Gloria Tucker's appeal of the dismissal of her claims for compensatory damages against the City of Newark, a neighboring landowner, and a dumpster leasing company resulting from her fall on South 11th Street in Newark, the street where she had lived for more than half a century. We affirm in part and reverse in part.


"Because summary judgment was granted in favor of defendants and on their motion, we present the facts, as we must, in the light most favorable to plaintiff, who was the non-moving party." Senna v. Florimont, 196 N.J. 469, 474 n. 1 (2008). On October 23, 2004, around 7:00 p.m., plaintiff was walking home along South 11th Street--only a few steps away from her home--when she encountered a ribbon of yellow caution tape stretched across the public sidewalk, blocking the right of way.*fn1

The yellow caution tape was "tied to the house [owned by a pair of defendants on South 11th Street], a railing, or something" at one end, and affixed to a dumpster owned by another defendant located in the street. The dumpster itself was not blocking the public sidewalk, but rather was entirely in the road. Seeing the yellow caution tape from afar, and deciding that she could not easily go under it, plaintiff stepped off the public sidewalk and entered the street. As she performed this maneuver, which required her to walk between two parked cars, she fell in what was later described as a depression and could not readily get up. In her deposition, plaintiff testified that she did not observe the condition of the street where she fell, and only learned about it from her daughter who "went down and looked where I fell." Nevertheless, plaintiff was able to identify the area of the incident from several photographs of the sidewalk and street that were produced at her deposition.

Paramedics were dispatched to the scene, who lifted plaintiff onto a stretcher and transported her by ambulance to a hospital in nearby East Orange. After a doctor's examination, it was determined that plaintiff had suffered a trimalleolar fracture dislocation of the left ankle. Plaintiff underwent open reduction surgery that resulted in the insertion of a plate and a cannulated screw in her ankle. She remained hospitalized for approximately four days, after which she was discharged and sent to a nursing home for a one-month stint of necessary physical therapy. After plaintiff was allowed to return home, she continued with similar physical therapy for several months.

The yellow caution tape that had impeded plaintiff's use of the public sidewalk was located in front of a building along South 11th Street. At the time, the property was used as a three-family dwelling, owned by defendants Michael Mwangi and Serah Mugambi (collectively, Mwangi). Mwangi did not reside at the premises, choosing instead to rent all of the units to third parties.

In October 2004, Mwangi contracted with defendant Equatorial Construction*fn2 to repair the roof at the property. An "Application for Street and/or Sidewalk Opening, Occupancy, and Sidewalk Construction" was filed with the Department of Engineering of the City of Newark on October 4, 2004. This application indicated that it was connected to "roofing," where the nature of the work related to "roofing debris (wood); slates, shingles." The proposed work site consisted of an area twelve feet long and six feet wide; the duration of the work was listed as fourteen days, beginning on October 6, 2004 and ending on October 20, 2004. A construction permit was ultimately issued by the City of Newark for this particular location on October 15, 2004. The construction permit made no mention of the use, obstruction, or closure of the public sidewalk in front of the house.

Defendant Giordano Co., Inc. (Giordano) is in the business of, among other things, leasing dumpsters for temporary use at places such as construction sites. Giordano was named as a defendant because the words "Giordano" appeared on the dumpster that was located in front of Mwangi's property when plaintiff fell. The record is sparse concerning details as to who actually leased the dumpster and how it came to be placed in the street. Additionally, the record does not reflect who actually strung the yellow caution tape to block off the public sidewalk, and Michael Mwangi's deposition testimony clearly indicated that he was not present during any point that the roofing work was being performed.

Plaintiff sued a multitude of allegedly negligent defendants who she claimed contributed to her harm. She pursues this appeal, however, only against the City of Newark, Mwangi, and Giordano as a result of Judge Claude M. Coleman's series of orders granting summary judgment in favor of those defendants. Although plaintiff repeats and reemphasizes the positions she advanced in the Law Division, for the first time on appeal, she argues that Judge Coleman had the duty to sua sponte disqualify himself as the motion judge because of his former long-term employment by the City of Newark. We reject plaintiff's recusal arguments, as well as many of her other positions. However, we are persuaded that summary judgment against defendant Mwangi was improvident, and as to that defendant only, we reverse. In all other respects, the determinations of the Law Division are affirmed.



Plaintiff asserts that information she gleaned from publicly available sources only after the summary judgment proceedings reveal that Judge Coleman "had served the City of Newark in multiple capacities from the 1960s until taking the bench in 2002, including as a Newark police officer, legal advisor to the Newark Legal Department, Chief and Director of the Newark Fire Department, and Chief and Director of the Newark Police Department." Moreover, "[a]fter serving as a judge of the Newark Municipal Court, Judge Coleman was nominated and confirmed to his current Superior Court appointment." Based upon this limited information, plaintiff argues that there are "serious questions regarding the judge's impartiality towards defendant City of Newark, and also raises an issue concerning the financial interest the judge may have with respect to any pensions received from the City of Newark." According to plaintiff, "Judge Coleman should have recognized this appearance of impropriety considering his long prior association with the City of Newark and in consideration of the allegations against the City of Newark in this action." We note that plaintiff does ...

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