On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2345-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Payne.
Plaintiff, Barbara Akili-Obika, appeals from orders of summary judgment that, successively, dismissed her claim against the City of Trenton for pain and suffering arising from displaced fractures of her tibia and fibula, allegedly sustained in a fall on an uneven Trenton sidewalk, and then her claim against Trenton in toto.
The record discloses that, on December 5, 2003, while walking on a sidewalk that bordered 311 West Hanover Street in Trenton, plaintiff tripped and fell breaking her left distal tibia and fibula. She underwent a closed reduction under general anesthesia on December 6. Plaintiff's leg was then placed in a full-leg cast for two months and then in shorter casts during a subsequent two-month period. On September 2, 2005, plaintiff filed suit against Trenton alleging a dangerous condition of property and seeking damages pursuant to the Tort Claims Act, N.J.S.A. 59:1-1 through 59:12-3, including damages for pain and suffering.
On June 20, 2008, Trenton moved for partial summary judgment on plaintiff's claim of pain and suffering. Following oral argument, the motion was granted and, on July 18, 2008, an order of partial summary judgment was entered. Following a further motion, on March 20, 2009, plaintiff's remaining claims against Trenton were dismissed. The motion judge found that plaintiff had failed to demonstrate that the allegedly dangerous condition of the sidewalk had been created by Trenton, or that the city had either actual or constructive notice of the condition. Additionally, the judge found that plaintiff had failed to offer evidence that the failure of Trenton to take action to repair the allegedly dangerous condition was palpably unreasonable. As a consequence, the judge found that plaintiff had failed to establish liability on Trenton's part pursuant to N.J.S.A. 59:4-2.
Plaintiff has appealed, contesting both rulings against her. We focus on the second, which we regard as dispositive. In doing so, we are mindful of the fact that the same standard applies to our review of this matter as applied initially to its consideration by the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). As set forth in Rule 4:46-2(c), "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law," summary judgment must be entered. In Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), the Court stated:
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. [Id. at 540.]
The record reflects that, at the time of plaintiff's accident, she was proceeding along a public walkway that consisted of a herringbone patterned brick sidewalk, followed by one made of concrete. The level of the concrete sidewalk was higher than that of the brick. Plaintiff alleges that she tripped on the edge of the concrete at the join between the two surfaces. Plaintiff testified at her deposition that she had walked in the same area previously and had not noticed the hazard, she had never reported the hazard to Trenton, and she was not aware of anyone else who had done so.
Trenton acquired the property by foreclosure on September 17, 1997. In connection with the present litigation, Leonard Pucciatti, the Director of Trenton's Department of Inspections and its Construction Official, gave his deposition regarding the property. Pucciatti testified that at the time of the sale of the property to Trenton, no one from his department had inspected it. Pucciatti testified further that the Division of Property Maintenance was responsible for city-owned properties. If that Division became aware of a dangerous condition of property, it would notify the Department of Inspections and request that the property be inspected and any necessary repairs be made. Pucciatti testified that no one from his Division had inspected 311 West Hanover Street prior to December 5, 2003, nor had any one been asked to do so.
Pucciatti acknowledged that, at some point, a city crew had boarded up the building located at 311 West Hanover Street adjoining the sidewalk. However, he did not know whether the condition of the sidewalk depicted in plaintiff's photographs existed at the time that the work was performed, and he did not know immediately the identity of the workers or whether they examined the sidewalk.
Pucciatti estimated that the brick sidewalk had been in place for at least fifty years. He acknowledged that a different location within the brick sidewalk had been patched with asphalt, and he surmised that the repair had occurred after curb cocks or gas valves had been removed. However, he also testified that the service removals could have been accomplished by Public Service, the city water utility, the city sewer utility, or Verizon. Pucciatti could not tell which utility had done the work or installed the patch, and he stated that utility company records would have to be searched to determine the answer.
Pucciatti testified that Trenton had thousands of linear feet of sidewalk. When asked what was the procedure or policy for inspecting ...