On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5070-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Alvarez.
Plaintiff Hope Wright appeals the January 22, 2010 grant of summary judgment to defendants Pritchard Industries (PI) and the City of Englewood (the City), resulting in the dismissal of her complaint. For the reasons that follow, we affirm.
Plaintiff, a computer technician employed by the Englewood Board of Education (the Board), was injured in a bathroom stall, located in the basement of a building owned by the City, while she was at work on July 26, 2006. The injuries were inflicted when a heavy, old-fashioned metal stall door came loose and struck her left hand. The premises where the accident occurred are leased by the City to the Board and maintained by PI.
The trial court granted summary judgment to the City after discovery was completed because plaintiff did not produce evidence of any dangerous condition causing the stall door to fall, or any evidence that the City had actual or constructive notice of such a condition. Therefore, plaintiff could not make out a prima facie case under the Tort Claims Act (TCA), N.J.S.A. 59:4-2.
The trial judge also concluded plaintiff had no proof establishing PI had been negligent in its maintenance or inspection of the bathroom. Hence PI's motion for summary judgment was also granted. In fact, plaintiff did not know the reason the stall door fell, nor did she present proof anyone noticed a problem with the hinges or the door itself. Until the accident, plaintiff herself did not experience difficulties with the door, even though she used that bathroom regularly.
Now, for the first time on appeal, plaintiff contends her cause of action should have survived summary judgment by virtue of the doctrine of res ipsa loquitur. Additionally, she asserts, as she did in defense of the summary judgment application, that the City had a non-delegable duty of care to render the premises reasonably safe, that PI failed to properly maintain and inspect the premises, and that whether the City's conduct was palpably unreasonable and whether it had constructive notice of problems with the door, are jury questions. In sum, plaintiff contends she presented a prima facie case establishing a dangerous condition, constructive notice, and palpably unreasonable acts or omissions on the part of defendants.
On review of an order granting summary judgment, this court applies the same standards as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment will be granted where the moving party can prove "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."
R. 4:46-2(c). On appeal, we decide, based on the record provided, whether a genuine issue of material fact exists. Prudential Prop. & Cas. Ins. Co., supra, 307 N.J. Super. at 167.
An issue of material fact is genuine when "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party . . . , are sufficient to permit a rational fact[-]finder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Consequently, if it is possible that a fact-finder would decide in favor of the non-moving party, granting summary judgment is improper. Ibid. "'Bare conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment[,]'" Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 87 (App. Div. 2001) (quoting U.S. Pipe & Foundry Co. v. Am. Arbit. Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961)); see also Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999), nor will "'conclusory and self-serving assertions' in certifications without explanatory or supporting facts[.]" Hoffman v. Asseenontv.com, Inc., 404 N.J. Super. ...