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Chamberlain v. City of Wildwood

Superior Court of New Jersey, Appellate Division

October 28, 2013

DIANA CHAMBERLAIN and FRANK CHAMBERLAIN, Plaintiffs-Appellants,
v.
CITY OF WILDWOOD, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 18, 2013

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-662-11.

Thomas P. Lutz argued the cause for appellants.

Erin R. Thompson argued the cause for respondent (Powell, Birchmeier & Powell, attorneys; Ms. Thompson, on the brief).

Before Judges Lihotz and Hoffman.

PER CURIAM

Plaintiff Diana Chamberlain[1] appeals from the grant of summary judgment dismissing her complaint against defendant City of Wildwood, seeking damages for injuries she suffered in a fall on the Wildwood boardwalk. Plaintiff maintains the judge erred in determining there were insufficient facts in evidence to show defendant had constructive notice of a dangerous condition. We disagree and affirm.

These facts are taken from the summary judgment record and viewed "in the light most favorable to the non-moving party." Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012) (citations omitted). See also R. 4:46-2(c).

While strolling on the Wildwood boardwalk with her family on the afternoon of May 8, 2010, plaintiff tripped and fell, injuring her knee and shoulder. Responding to interrogatories, plaintiff stated she caught her foot on a board not safely fastened down. She acknowledged she was looking forward as she walked and not looking at the ground. During depositions, plaintiff also revealed she purchased flip flops, which she wore instead of the wedged sandals she was previously wearing.

During her deposition, plaintiff was asked to describe her fall and stated she was "just walking along and all of a sudden, I just went down." Asked whether something caused her to stumble, she responded: "All I know is I just went down[.]" When helped to her feet, plaintiff did not look around to see what caused her fall and acknowledged she could not "point to the board or where on the boardwalk it was that [she] fell." Following her fall, plaintiff never returned to the Wildwood boardwalk.

Plaintiff's adult grandson Ryan Gallagher was walking in front of her when she fell. Gallagher testified in his deposition that plaintiff pointed to the area she believed caused her fall. He described the boards in that area as uneven and there was a gap so that "one was higher than the other." Gallagher stated the planks he viewed were "rickety, like dilapidated, old." He further described a board as "faded and it was uneven. There were cracks throughout it." Gallagher was certain only one board was raised and he guessed plaintiff "caught the tip of her foot on it and she fell." When asked to state the distance discrepancy between the identified board, he explained, "[i]t wasn't that much" estimating it to be "an inch-and-a half, two inches."

On the evening of plaintiff's fall, her husband Frank Chamberlain attempted to file an incident report with the Wildwood police department. Mr. Chamberlain asserts the police told him no report was necessary because they knew "the boardwalk [wa]s in bad shape."

Two days after plaintiff's fall, Gallagher and Mr. Chamberlain returned to the boardwalk. Gallagher believed he recognized the area of the accident, but could not locate the raised board that allegedly caused plaintiff's fall. He photographed various areas of the boardwalk in the approximate location of plaintiff's fall. When ...


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