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Fine v. City of Margate

United States District Court, D. New Jersey

September 26, 2014

CITY OF MARGATE, ATLANTIC COUNTY, JOHN DOES #1-10 (fictitious); ABC CORPORATIONS #1-10 (fictitious); XYZ PARTNERSHIPS #1-10 (fictitious), Defendants

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For Luis and Patricia Fine, Plaintiffs: Feeda R. Musitief, Esq., FINE AND STAUD LLP, Philadelphia, PA.

For City of Margate, Defendant: Robert P. Merenich, Esq., GEMMEL, TODD & MERENICH, P.A., Linwood, New Jersey.


JOSEPH E. IRENAS, Senior United States District Judge.

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Plaintiffs Louis S. Fine and Patricia Fine bring this diversity action for damages resulting from Mr. Fine's fall on a beach access ramp in Margate City, New Jersey.

Currently pending before the Court is Defendant City of Margate's Motion for Summary Judgment. For the reasons explained herein, the motion will be DENIED.


The Court recites those facts relevant to deciding the pending motion for summary judgment and resolves any disputed facts or inferences in favor of Plaintiffs, the nonmoving party.

On August 22, 2010, while descending the South Delavan Avenue wooden access ramp from the beach in Margate, New Jersey, Plaintiff Louis S. Fine, 81 years old, slipped and fell. (Plaintiffs' Counter Statement of Facts (" P.C.S.F." ) ¶ 22) Mr. Fine, who was barefoot at the time, kept to one side of the ramp and intended to step off onto the street before reaching the bottom in order to avoid dirty water pooling at the base of the ramp. (Deposition of Louis S. Fine (" L. Fine Dep." ) at 30:20-32:19) Mr. Fine stated in his deposition that the ramp was slippery and that some of its boards were broken. (Id.) As Mr. Fine descended, one of his feet hit a nail jutting out of the ramp and began bleeding. (Id. at 33:5-17) Mr. Fine saw " a lot of" other nail heads sticking out and, in his attempt to avoid hitting another popped nail, he slipped. (Id. at 34:23-35:10)

The South Delevan Avenue access ramp was built around 1962-1963 by the Army Corps of Engineers. (Def. Answers to

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Interrog. at 2) The city constructed the ramp to allow maintenance vehicles to access the beach, but thousands of pedestrians use the ramp daily to access the beach during the summer. (Deposition of Frank Ricciotti (" Ricciotti Dep." ) at 14:1-4, 17:19-18:22) According to Plaintiff's expert, James C. Druecker, P.E., a consulting civil engineer who examined the ramp on May 23, 2012, the ramp's slope ranges from 14.4% to 17.7% and its surface consists of wood boards placed in a diagonal orientation. (Preliminary Report of James C. Druecker, P.E. (" Druecker Rep." ) at 1) There is a wood retaining wall on the north side of the ramp and the south side is left open. (Id.) Though there used to be a handrail on the north side of the ramp in prior years, there were no handrails on the ramp in August 2010. (Deposition of Edward Navlen (" Navlen Dep." ) at 10:19-11:5) A sign at the base of the ramp stated " BEACH VEHICLE ACCESS - KEEP CLEAR" (Defendant's Motion for Summary Judgment (" D.M.S.J." ) at Ex. E), but no sign explicitly prohibited pedestrian use of the ramp. (P.C.S.F. ¶ 5). In August 2010, the South Delevan ramp provided the only means to access to the beach directly from South Delevan Avenue. (P.C.S.F. ¶ 1).

The ramp is owned and controlled by the City of Margate, and maintained by Margate Public Works, a division of the City of Margate. (Def. Answers to Interrog. at 2; Ricciotti Dep. at 15:6-16:1) Frank Ricciotti, the Director of Margate Public Works, conducts seasonal inspections of the ramp, and inspected it in June 2010. (Ricciotti Dep. at 19:12-20:3) Mr. Ricciotti also uses the ramp daily and, when he does so, makes " visual inspections from [his] vehicle." (Id. at 20:5-6) Further, other employees of the City of Margate walk and drive over the ramp on a daily basis. (Id. at 16:14-17:9)

In his deposition, Mr. Ricciotti stated that if he knew of any nails protruding from the ramp's surface, he would " definitely send somebody out to maintain them nails." (Id. at 39:13-18) Mr. Ricciotti also stated that, " as far as pedestrians," he would " definitely be concerned" about their safety if there were popped nails on the ramp. (Id. at 40:7-14) He stated that popped nails would not have been acceptable back in August 2010. (Id. at 40:15-17) Mr. Ricciotti was aware that water could pond at the base of the ramp before August 2010, but that was not a concern because " it never seemed to be a problem before." (Ricciotti Dep. at 42:3-43:6)

On the day he fell, Mr. Fine believes he saw more than ten nail heads protruding at various heights from the ramp's wooden planks.[1] (L. Fine Dep. at 35:4-17) Other City of Margate residents had seen nails popping out of the ramp before Mr. Fine fell as well. Melvin Lapin, who lives on South Delavan Avenue year-round, stated in his deposition that the ramp is " just not maintained" and that there have been times when he has " hammered down 50 or 60 nails" himself during the middle of the summer.[2] (Deposition of Melvin Lapin (" Lapin Dep." ) at 17:14-19) Edward Navlen, who also lives on South Delavan Avenue, stated in his deposition that he fell once when he tried to avoid nails while descending the ramp.[3] (Navlen Dep. at

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12:11-13:2) Mr. Navlen said that the ramp was " just horrible" in August 2010 and that it looked " like it was falling apart." (Id. at 26:18-27:2)

Neither Mr. Fine, Mr. Lapin, nor Mr. Navlen ever complained to City of Margate officials about the nails protruding from the ramp or the water pooling at the base of the ramp. (L. Fine Dep. at 18:12-16; Lapin Dep. at 15:7-12; Navlen Dep. at 18:22-25) Mr. Ricciotti stated in his deposition that he was not aware of any other complaints about the ramp prior to August 2010. (Ricciotti Dep. at 22:17-23:15)

Plaintiff's expert James C. Druecker concluded that the ramp is too steep for pedestrian use, that its surface does not have slip-resistant treatment, and that there is improper drainage at the lower portion of the ramp. (Druecker Rep. at 3-4) Mr. Druecker also found that there did not appear to be a physical reason for Defendant's not providing a handrail and guard, and a slip-resistant surface. (Id. at 4)

As a result of his fall on August 22, 2010, Mr. Fine suffered a left quadriceps tendon rupture, a common peroneal nerve injury, a medial meniscal tear, and an aggravation of degenerative changes to his knee. (Expert Report of Richard J. Levenberg, MD (" Levenberg Rep." ) Mr. Fine underwent surgery to repair his left quadriceps tendon within ten days of the incident, and engaged in months of physical therapy thereafter. (Id.) Mr. Fine was confined to a wheelchair after the operation, but progressed to a walker and then a cane, and now walks without an assistive device. (Expert Report of Ronald L. Gerson, MD, FAAOS (" Gerson Rep." ) at 1)

Since his fall, Mr. Fine has experienced numbness below his left knee, pain in his left foot and knee, and decreased mobility. (L. Fine Dep. at 120:24-121:12; Levenberg Rep. at 1) Mr. Fine walks with an altered gait and a dropped foot. (Plaintiff's Responses to Defendant's Statement of Facts (" P.R.D.S.F." ) ¶ 54) He claims to be less physically active than he was before the incident. (Gerson Rep. at 6) Although Mr. Fine stated in his February 1, 2013 deposition that he was able to play golf again after the incident, he has since given up golf. (L. Fine Dep. at 85:23-25; P.R.D.S.F. ¶ 53)

Plaintiff's medical expert Dr. Richard J. Levenberg has referred to Mr. Fine's injuries as " serious and permanent." (Levenberg Rep. at 4) Mr. Fine's left leg buckles occasionally due to his meniscal tear, which might require additional surgery in the future. (Id.) According to Dr. Levenberg, Mr. Fine's injuries have caused a combined 28% whole person impairment. (Id.) The surgery on Mr. Fine's quadriceps tendon also resulted in a six-inch scar on his left knee. (L. Fine Dep. at 99:24-101:5)

Mr. Fine's claimed out-of-pocket medical expenses since the incident have been $81,678.65. (P.C.S.F. ¶ 34) He also has a Medicare Lien of $24,904.96. (Id.)

Plaintiffs Mr. and Mrs. Fine brought negligence claims against Defendant seeking damages for the injuries Mr. Fine suffered as a result of his fall and compensation for Mrs. Fine's loss of consortium. The City of Margate presently moves for summary judgment.


Federal Rule of Civil Procedure 56(c) provides that summary judgment should be granted if " pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show 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." See also Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, the court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material only if it will affect the outcome of a lawsuit under the applicable law, and a dispute of a material fact is genuine if the evidence is such that a reasonable fact finder could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 252.

The nonmoving party must present " more than a scintilla of evidence showing that there is a genuine issue for trial." Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). The court's role in deciding the merits of a summary judgment motion is to determine whether there is a genuine issue for trial, not to determine the credibility of the evidence or the truth of the matter. Anderson, 477 U.S. at 249.


Defendants move for summary judgment on two grounds: (1) Plaintiffs have not presented facts sufficient to sustain Defendant's liability under the New Jersey Tort Claims Act (" Tort Claims Act" or " the Act" ), and (2) Plaintiffs failed to demonstrate that Mr. Fine's injuries rise to the threshold level required for compensation under the Act.[4]

This Court will address the merits of Plaintiffs' Tort Claims Act claim before ...

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