NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2569-11.
Law Office of Stanley Marcus, attorney for appellant (Robert J. McKenna, on the brief).
Robert E. Barry, Union County Counsel, attorney for respondent (Norman W. Albert, First Deputy County Counsel, on the brief).
Before Judges Parrillo and Kennedy.
Plaintiff Dionna Tucker appeals from the summary judgment dismissal of her personal injury negligence complaint against defendant County of Union for failure to satisfy the requirements of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -14-4 (Act). We affirm.
Because this matter comes to us from the motion court's grant of summary judgment in favor of defendant (the moving party), we view the evidence in the light most favorable to plaintiff. Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012).
On August 26, 2006, plaintiff was jogging on the paved fitness circuit and walking path bordering a pond in Rahway River Park that was owned and maintained by defendant. She tripped and fell into a depression on the edge of the path when she moved to the far left to avoid joggers approaching from the other direction. The depression was caused by broken macadam and covered by leaves shaken from trees in a recent rainstorm. Plaintiff had walked the macadam path a year "or two" before the accident, and had not seen any declivity.
Plaintiff suffered a distal tibula and fibula fracture. She underwent a closed reduction and casting and ultimately, an open reduction and internal fixation to the left ankle on September 5, 2006, and then a second surgical procedure to remove the hardware on January 5, 2010. Her treating physician found that the fractures had healed successfully after the second surgery when the hardware was removed. On November 8, 2011, an independent medical examination revealed that the fractures had healed in anatomic alignment; that plaintiff had regained full range of motion in her ankle in all directions; that she had a mild to moderate degree of permanent physical impairment; and that she could resume regular activities of daily living without restriction.
Following discovery, defendant moved for summary judgment dismissal of plaintiff's complaint on the grounds that plaintiff failed to establish that the County had actual or constructive notice of the dangerous condition pursuant to N.J.S.A. 59:4-3 and that plaintiff's injury failed to satisfy the injury threshold of N.J.S.A. 59:9-2(d). After considering plaintiff's opposition and hearing oral argument, the motion judge granted summary judgment in favor of defendant, reasoning:
This court does not find, based on the evidence presented, that Plaintiff has met the substantial burden of proving that Defendant had notice of the declivity. There is no dispute that Defendant had not received complaints or reports of previous accidents about the depression. Therefore, any potential argument lies within the realm of constructive notice. Plaintiff relies solely on photographs of the three-inch wide declivity on the edge of the pathway as proof that the condition was open and obvious. No expert report supports her position that the declivity existed for a substantial period of time. At oral argument, ...