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Dolores Franchino v. Lyndhurst Residential Communities Two

June 10, 2011

DOLORES FRANCHINO, PLAINTIFF-APPELLANT,
v.
LYNDHURST RESIDENTIAL COMMUNITIES TWO, LLC., BERGEN COUNTY, STATE OF NEW JERSEY, HIGH POINT INSURANCE COMPANY, GEMINI DEVELOPMENT, LLC., KEVIN LUCAS AND AKR CONTRACTING, INC. AND GARDEN STATE SITE WORK ENTERPRISES, INC., DEFENDANTS, AND LYNDHURST TOWNSHIP, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8047-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 5, 2011

Before Judges Carchman, Messano and St. John.

Plaintiff Dolores Franchino appeals from an order dated June 29, 2010, which granted summary judgment in favor of the Township of Lyndhurst (Township). We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, plaintiff's summary judgment motion, viewed in a light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On October 23, 2007, plaintiff suffered a slip and fall resulting from stepping into a leaf-covered pothole or depression, as she stepped off the curb to enter her vehicle located at or near 441 Valley Brook Avenue, in the Township. Plaintiff claimed that she sustained injuries to her right foot and ankle, which were permanent in nature, and causally related to the accident.

Plaintiff filed a complaint, naming as defendant the Township, as well as several other defendants.*fn1 She sought compensatory damages for the injuries resulting from her October 2007 fall.

The Township filed a motion for summary judgment. Following oral argument, Judge Robert C. Wilson entered an order granting that motion, from which plaintiff now appeals.

On appeal, plaintiff contends that the declivity constitutes a dangerous condition, of which the Township had constructive notice, and that the Township's inaction was palpably unreasonable. In addition, plaintiff asserts that she sustained a permanent loss of a bodily function that is substantial. We disagree.

The standard for summary judgment is well established. Judgment must be granted "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." R. 4:46-2(c); see also Brill, supra, 142 N.J. at 523. "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." R. 4:46-2(c). The court must determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 533 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

We apply the same standard as the trial court in reviewing the grant of a motion for summary judgment. We first decide whether there is a genuine issue as to a material fact. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). If there was none, we will decide whether the trial court's ruling on the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104 (2006).

Here, plaintiff contended that she was injured as a result of a dangerous condition on public property. In order to establish liability under the New Jersey Tort Claims Act (the Tort Claims Act or the Act), N.J.S.A. 59:1-1 to 12-3, for conditions on public entity property, a plaintiff must demonstrate the following:

[T]hat the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of ...


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