On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3046-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2012 -
Before Judges Reisner and Hoffman.
This is a trip and fall personal injury negligence action under the New Jersey Tort Claims Act (Act).*fn1 Plaintiff Kathy Noble appeals from a June 26, 2012 order granting defendant's motion for summary judgment, resulting in the dismissal of her claims for personal injuries she sustained when she tripped and fell on a sidewalk in the neighborhood near her home. Based on the documentary submissions and photographs of the scene of the accident, the Law Division judge held that plaintiff failed to raise an issue of material fact that defendant "had notice, either actual or constructive, of a dangerous condition" under N.J.S.A. 59:4-2b. On that basis, we affirm.
On December 22, 2008, at approximately 7:15 a.m., plaintiff was walking her dog on the sidewalk of Marion Street in the Borough of Red Bank (the Borough). She had been walking her dog there, on average, about once a week. According to plaintiff, as she was walking, her toe caught on the edge of a crack in the sidewalk, causing her to fall, with resulting injury. At the time, plaintiff lived approximately two blocks away from where she fell.
It is undisputed that the Borough owned and maintained the portion of the sidewalk where plaintiff tripped and fell. On the property adjacent to the sidewalk, the Borough owns a small building formerly used as a well house. The Borough rarely accesses the building and now uses it to store materials. The Borough does attend to snow removal on the sidewalk.
Following plaintiff's fall, Robert Holiday, the Borough supervisor, conducted an investigation. Prior to plaintiff's fall, Holiday had not observed any cracks or declivities in the sidewalk. Nor was he aware of anyone else tripping or falling on the portion of the sidewalk where plaintiff fell.
Plaintiff produced photographs of the cracked sidewalk but did not submit an expert report. The motion judge found the plaintiff's proofs insufficient to create a factual issue on the issue of dangerous condition:
[P]laintiff has offered no statement in the motion record regarding the size or height of the sidewalk defect in question. Although photographs have been produced which appear to indicate a crack or separation in the sidewalk, neither plaintiff nor any expert has sufficiently identified the condition to permit a reasonable fact-finder to determine whether such condition could be considered "dangerous."
Although we disagree with the motion judge's conclusion that the sidewalk where plaintiff fell was not a dangerous condition, we agree with her conclusion that there is no evidence in the record that would support a finding that the Borough had actual or constructive notice of the sidewalk's condition.*fn2 Based upon the absence of actual or constructive notice, defendant's motion was properly granted.
Because this appeal arises from the grant of a motion for summary judgment, "we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to ...