CONSTANCE CHILDS-ABDULLAH and MIKAL ABDULLAH, Plaintiffs-Appellants,
CITY OF SOMERS POINT, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 26, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4872-09.
Goldenberg, Mackler, Sayegh, Mintz, Pfeffer, Bonchi & Gill, attorneys for appellants (Mark Pfeffer, on the brief).
Law Offices of Neil Stackhouse, attorneys for respondent (Thomas G. Smith, of counsel and on the brief).
Before Judges Messano and Ostrer.
Plaintiffs Constance Childs-Abdullah and her husband Mikal Abdullah appeal from the trial court's grant of summary judgment to defendant, the City of Somers Point, dismissing with prejudice their complaint seeking damages arising out of physical injuries Childs-Abdullah suffered when she stepped into a sinkhole in the parking lot of the municipal complex. Plaintiffs argue they presented sufficient evidence for a jury to determine that the City was on notice of the sinkhole and its actions in response were palpably unreasonable. Having considered plaintiffs' arguments in light of the facts and applicable law, we reverse.
We discern the following facts from the record, viewed in a light most favorable to plaintiffs as the non-moving parties. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiffs arrived at the municipal complex at around 9:00 p.m. on New Year's Day, 2008. They were there to post bail for their grandson. Abdullah was driving their Toyota Highlander, an SUV-type vehicle. Childs-Abdullah sat in the front passenger seat. Abdullah pulled, front end first, into a stall in the parking lot.
Childs-Abdullah's exit from the vehicle was uneventful. She stepped out, walked toward the front of the vehicle, and to her left, accompanying her husband into the building.
When plaintiffs returned, they walked around the rear of the vehicle, from the driver's side to the passenger's side. Abdullah walked ahead and opened the door for his wife. As she attempted to enter the vehicle, she stepped into a depression in the pavement. She did not fall because she "grabbed hold of the top of the car and [Abdullah] grabbed hold of me." Childs-Abdullah suffered a fractured left foot and a spinal injury.
Photographs that Abdullah took the next day reflect that the pavement depression was equal in diameter to the length of a passenger car door. Abdullah testified the indentation was "maybe four inches or more" deep. It was the same color asphalt as the surrounding pavement.
A supervisor of the City's public works department, Guy Martin, described the indentation as a "sinkhole." He testified that the sinkhole Childs-Abdullah stepped into had been repaired at least once previously by public works employees. He testified that sometime before January 1, 2008, the deputy city clerk had informed him there was a sinkhole in the municipal complex parking lot. In response, "A couple of our guys went down there, saw it was a sinkhole, cut the sinkhole out, filled it in with some dirt ...