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Judy Corrigan v. James Mogan

October 7, 2011

JUDY CORRIGAN, PLAINTIFF-APPELLANT,
v.
JAMES MOGAN, MARIE MOGAN, AND CITY OF BRIGANTINE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1175-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 19, 2011

Before Judges Sabatino and Fasciale.

This case arises out of injuries that plaintiff Judy Corrigan sustained on August 14, 2008, when she tripped on the raised edge of a sidewalk in front of a house in Brigantine. Plaintiff appeals the trial court's May 15, 2009 order denying her motion to serve a late tort claims notice upon the City of Brigantine ("the City"). She also appeals a subsequent order dated September 16, 2010 granting summary judgment to the home owners, defendants James and Marie Mogan ("the Mogans"). For the reasons that follow, we affirm both orders.

I.

On the morning of the accident, plaintiff, then sixty-seven years old, was walking her dog. She wore sneakers, and the weather was clear. Although the Mogans live near her, plaintiff had not previously walked her dog on the sidewalk in front of their home. Plaintiff held the leash in her right hand, and she contends that her dog did not pull at her as they passed by the Mogans' home.

According to plaintiff, she tripped when the front of her left foot caught on the sidewalk cement where the sidewalk meets a driveway. She fell forward, and the front of her body struck the surface. A passing motorist saw her lying on the sidewalk, and he called an ambulance. Paramedics responded to the scene and brought plaintiff to a local emergency room. Her left wrist was fractured, and she also injured her shoulders.

A surgeon at the hospital operated on plaintiff's wrist, and he installed plates and four rods into her left hand and arm. Plaintiff was discharged from the hospital the following day. Plaintiff also received treatment for her shoulders, including pain injections and physical therapy. She ultimately had arthroscopic surgery in December 2009 to repair a torn rotator cuff in her right shoulder.

Before the accident, plaintiff had cared for an elderly woman with whom she resided. Because of her injuries, plaintiff was unable to continue to care for the woman. The woman's relatives placed her in a nursing home, and plaintiff remained in the residence she and the woman had shared.

The Mogans have lived at their house since 1973. Mr. Mogan stated at his deposition that he "probably" had noticed the raised section of the sidewalk at some point before plaintiff's accident. The damaged area of the sidewalk crossed the Mogans' driveway. The Mogans rarely use the driveway, often parking their cars on the street.

Three months after plaintiff's accident, on November 18, 2008, the Mogans received a letter from the City's Bureau of Fire Prevention ("the Bureau"), instructing them to repair the sidewalk in front of their home. The Bureau's letter asserted that the condition of the sidewalk was in violation of the BOCA National Property Maintenance Code, as adopted by the City. After receiving the letter, Mr. Mogan contacted a City inspector to discuss the areas to be repaired. The Mogans thereafter hired a contractor, which made the repairs. The City apparently found the repairs to be satisfactory and did not fine the Mogans.

According to the Mogans' deposition testimony, prior to receiving the Bureau's November 2008 letter, they had never made any improvements or alterations to the sidewalk. The sidewalk was built before they purchased the house in 1973.

Plaintiff alleges that she contacted the City Clerk's office about her accident within two weeks after it occurred. She asserts that the Clerk told her "that the city had a law that said they [the City and its employees] were not responsible," and therefore declined to provide her with any assistance. However, according to affidavits filed with the trial court by the City Clerk and her assistant, the Clerk's office has no record of a telephone call, letter, or other contact by plaintiff during that time frame.

Plaintiff further alleges that the Clerk's office failed to inform her that she needed to submit a notice of tort claim in order to pursue her action against the City. The Clerk disputed that allegation, noting in her affidavit that her office policy prescribes that "anyone who came to [the City Clerk's] office with regard to a claim would have been duly informed that the City has adopted an official form for the filing of claims against the City of Brigantine. That form would have been provided to anyone making such a claim."

Following her accident, plaintiff contacted a local attorney (plaintiff's "initial attorney"). Plaintiff met with him on August 27, 2008, thirteen days after the accident. The initial attorney took photographs of the sidewalk where she fell, and he gave her prints of the photographs. According to plaintiff, the initial attorney told her that she "had a good case," and that he would take it. He apparently did not inform her, ...


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