The opinion of the court was delivered by: Rodriguez , Senior District Judge
Plaintiff, Natalie J. Charney ("Charney") brought this action against the City of Wildwood ("Wildwood") for injuries allegedly sustained when she tripped and fell on the Wildwood boardwalk in August 2006. Presently before the Court is a motion for summary judgment filed by Wildwood pursuant to Fed. R. Civ. P. 56. The Court has considered the written submissions of the parties and heard oral argument on the motion on July 21, 2010. Summary judgment will be granted because Charney failed to establish that the hole in the boardwalk plank constituted a dangerous condition, or that any action Wildwood took to protect against the hole or the failure to take such action was palpably unreasonable . Accordingly, Defendant's motion [Dkt. Entry No. 29] is granted.
At approximately 8:45 p.m. on August 25, 2006, Natalie Charney,*fn1 on vacation with her family, was walking on a poorly lit section of the Wildwood boardwalk near the Douglass Pavilion.*fn2 (Charney Dep. at 19:3-25, 29:1-13, 31:17-22.) Charney was walking with her daughter, son-in-law, and grandchildren, when she tripped in a hole in the boardwalk. The hole that Charney claims caused her fall was roughly shaped like a right triangle measuring approximately three and three-eighths inches long and one and one-half inch deep. And at its largest point, the hole measured one and one-quarter inch wide.
Charney alleges that as she fell she extended her hand out to brace herself and "smashed" her finger, chest, and knee against the boardwalk. (Charney Dep. at 31:5-12.) Police arrived a few minutes after Charney's fall and radioed for an ambulance. The ambulance took her to Burdette Tomlin Memorial Hospital in Cape May where she was diagnosed with a fractured patella, fractured rib, and fractured finger. (Charney Dep. at 35:4-16, 44:14-25, 45:1-10.) The injuries resulted in a "left partial patellectomy with quadriceps tendon repair," and required the removal of a cyst from her fractured finger. Both procedures caused permanent scarring. (Am. Compl. at ¶ 15; Charney Dep. at 68:11-25, 69:1-25.) Charney has ongoing pain and discomfort as a result of her injuries.
(Charney Dep. at 70:1-18.)
Charney was wearing Reebok sneakers on the night she fell. (Charney Dep. at 22:3-4.) Plaintiff's expert, Ronald J. Cohen,*fn3 observed that the tip of Charney's sneaker fit into the incident boardwalk hole, such that the hole could cause her or any person with small feet to trip. (Expert Rep. of Ronald Cohen at 10 and photograph enclosure 8, Mar. 31, 2007.) The area of the boardwalk where Charney fell consists of both wood decking and a "concrete deck" or path. (Charney Dep. at 30:6-21.) Charney was walking southbound on the wood decking portion of the boardwalk, immediately adjacent to and west of a section of concrete decking, when she fell. (See Charney Dep. at 27:11-18, 30:6-21; Expert Rep. of Ronald Cohen at 1, Mar. 31, 2007.) Cohen examined the incident area on October 4, 2006, approximately five weeks after Charney fell. (Expert Rep. of Ronald Cohen at 2, Mar. 31, 2007.) Photographs and examination of the area in question by Cohen detail a small hole in one of the boardwalk planks where it abutted the concrete deck.*fn4 The hole, in the approximate shape of a "right triangle," measured one and one-quarter inch along the edge of the concrete deck, and extended out three and three-eighths inches, at its largest point. The hole was about one and one-half inch deep to the top of the decking support. (Pl.'s Supplemental Stmt. of Material Facts at ¶¶ 43-44; Expert Rep. of Ronald Cohen at 2-3, Mar. 31, 2007.)
Cohen analyzed the "nailing patterns" of the boards where Charney fell and concluded that generally two "pneumatically"/nail-gun driven nails were used to secure the end of each board to the deck below. (Follow Up Expert Rep. of Ronald Cohen at 4-5, Nov. 4, 2009.) The board in question, however, contained a third, manually-driven nail in the center of the board, between the two pneumatically-driven nails. Cohen contends that when the board in question was originally installed, the southern-most pneumatically-driven nail was driven too close to the edge of the board and at an improper angle, "causing a split to develop or enlarge." (Expert Rep. of Ronald Cohen at 5-6, Mar. 31, 2007.) He further contends that a maintenance worker likely observed the defective board at some later date, installed the center nail as a substitute for the improperly driven pneumatic nail that was no longer an effective fastener, "but allowed the hole to remain."*fn5 (Expert Rep. of Ronald Cohen at 6, Mar. 31, 2007.) He also contends that the boards on either side of the incident board had been replaced prior to the accident. (Expert Rep. of Ronald Cohen at 3, Mar. 31, 2007.)
Defendant's maintenance supervisor, Joseph Bartolomeo, conceded at his deposition that one of boards adjacent to the board with the hole had been replaced. (Bartolomeo Dep. at 38:21-25.) Bartolomeo also explained at his deposition that holes the size of the incident hole are not repaired because he does not consider them a trip hazard, or otherwise dangerous. (Bartolomeo Dep. at 14:10-25, 15:1-9, 25:1-20 (indicating that holes like the one that tripped Charney are not dangerous, and are therefore not repaired.)) Finally, Wildwood claims that the boardwalk is inspected daily, and that any dangerous conditions are immediately repaired.*fn6 (Def.'s Br. in Supp. of Summ. J. at 8-9.)
Charney, a citizen of Pennsylvania, brought this action against the City of Wildwood, a New Jersey municipal corporation, in federal district court under 28 U.S.C. § 1332(a)(1). She filed her initial Complaint with this Court on August 22, 2008. Charney contends that the City of Wildwood breached its duty to her and other pedestrians by allowing the hole in the boardwalk to persist despite having actual and constructive notice of the dangerous condition and sufficient time to take remedial measures. (Am. Compl. at ¶ 10.) Wildwood filed an Answer on September 30, 2008, claiming there was no breach of duty, among other defenses. Subsequently, Plaintiff filed an Amended Complaint and Wildwood filed an Answer to the Amended Complaint. Wildwood filed the instant Motion for Summary Judgment on February 1, 2010, seeking dismissal of plaintiff's claims.
"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter summary judgment only when "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 and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c).
An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 322.
In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determinations are the province of the ...