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Frank Marenbach and Debra Mckibbin v. City of Margate

April 29, 2013


The opinion of the court was delivered by: Hillman, District Judge


This case concerns plaintiffs' claims that they suffered damages as a result of plaintiff Frank Marenbach's fall on the street in Margate City, New Jersey. Presently before the Court is defendant's motion for summary judgment, as well as defendant's request for sanctions against plaintiffs. For the reasons expressed below, defendant's summary judgment motion will be granted, and defendant's request for sanctions shall be denied without prejudice.


On July 4, 2009, plaintiff Frank Marenbach tripped and fell in the street on Ventnor Avenue in Margate City, New Jersey. Plaintiff claims that he severely and permanently injured his left ankle, and that his injury has required surgery. Plaintiff claims that Margate City controls Ventnor Avenue, and is liable for failing to protect him from a dangerous condition. Plaintiff's wife, Debra McKibbin, has filed a claim for loss of consortium.

Defendant Margate City (hereinafter "Margate") has moved for summary judgment in its favor on plaintiffs' claims because plaintiffs failed to properly comply with the New Jersey Tort Claims Act, and because it does not own or control Ventnor Avenue. Margate has also moved for attorney's fees and costs pursuant to New Jersey's Frivolous Litigation statute because plaintiffs know that Atlantic County, and not Margate, owns and controls Ventnor Avenue. Plaintiffs have opposed Margate's motion on all bases.


A. Jurisdiction

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.

B. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).

An issue is "genuine" if it is 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 considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255). 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. 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. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

C. Analysis

1. Margate's Motion for Summary Judgment

As a threshold matter, in order to maintain their suit against Margate, plaintiffs must comply with New Jersey's Tort Claim Act ("NJTCA"). The NJTCA provides, "No action shall be brought against a public entity or public employee under this Act unless the claim upon which it is based shall have been presented in accordance with the procedures set forth in this chapter."

N.J.S.A. 59:8-3. A tort claim notice "must be served upon the public entity within 90 days of the accrual of the claim, and failure to do so will forever bar the claimant from recovering against a public entity or public employee." N.J.S.A. 59:8-8. The accrual date under the NJTCA is generally the date on which the ...

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