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Lessa v. Township of Pemberton

Superior Court of New Jersey, Appellate Division

June 19, 2013

MASON LESSA, a minor, by his natural parent and guardian ad litem, DONNA LESSA, Plaintiff-Appellant,
v.
TOWNSHIP OF PEMBERTON, Defendant-Respondent, and ANNEMARIE WEWER AND SCOTT HAROLD NATZEL, Defendants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 26, 2012

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2760-09.

Richard DiTomaso argued the cause for appellant (DiTomaso Law, attorneys; Mr. DiTomaso, on the brief).

David A. Clark argued the cause for respondent (Gluck Walrath, LLP, attorneys; Mr. Clark, of counsel and on the brief; Jaclyn Baker, on the brief).

Before Judges Graves and Espinosa.

PER CURIAM.

Plaintiff, Mason Lessa, a minor represented in this action by his mother and guardian ad litem, appeals from an order that granted summary judgment to the Township of Pemberton (the Township), dismissing plaintiff's personal injury claim against the Township on the ground that it is immune from liability under the Torts Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We affirm.

This appeal arises from an accident that occurred in the intersection of Dogwood and Rugby Streets between an eleven-year-old cyclist, plaintiff, and a vehicle driven by Harold Natzel in June 2009. Plaintiff was riding his bicycle west on Dogwwod Street through the intersection and Natzel was driving north on Rugby Street. Plaintiff suffered "multiple fractured ribs, forehead and facial abrasions, left leg road rash, exposed tendons, partially removed heel, right shoulder, over 150 stitches with skin down to bone."

There were no traffic controls at the intersection. One of the corner properties, owned by Annemarie Wewer, had hedges.

In addition to suing Natzel, plaintiff sued Wewer for failing to maintain the shrubs located on her property, alleging that this obstructed Natzel's vision, and therefore was a proximate cause of the collision. Plaintiff's claims against Natzel and Wewer have been settled.

Plaintiff also sued the Township for

fail[ing] to properly control the intersection and/or allow[ing] an uncontrolled intersection at Dogwood and Rugby Streets to exist and fail[ing] to maintain the shrubs at the intersection to be a safe height for bicyclists and/or motorists and/or fail[ing] to enforce the maintenance of the shrubs[.]

The Township filed a motion for summary judgment, asserting the following as unrebutted material facts: (1) the accident occurred at the intersection of streets owned and controlled by the Township; (2) there were no traffic lights or signals at the intersection; and (3) the hedges were not on property owned by the Township, but on private property. In his opposition, plaintiff contended that the motion should be denied because the discovery period had not ended. The court granted the Township's summary judgment motion. In this appeal, plaintiff argues that the summary judgment order was premature; that discovery completed thereafter confirmed the existence of multiple issues of material fact, i.e., that the Township controlled the ...


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