United States District Court, D. New Jersey
FRANK B. MARENBACH and DEBRA MCKIBBIN, Plaintiffs,
ROBERT LAND, Defendant.
B. SIMANDLE U.S. DISTRICT JUDGE.
Frank B. Marenbach (“Marenbach”) and Debra
McKibbon (“McKibbon” and, collectively,
“Plaintiffs”) bring this professional
negligence/legal malpractice claim against Defendant Robert
Land, Esq. (“Land” or “Defendant”)
for failing to timely serve a proper Tort Claims Notice on
Atlantic County while representing Plaintiffs in litigation
arising out of an injury Mr. Marenbach suffered after falling
into a pothole in Margate, New Jersey. [Docket Item 1.] This
matter is before the Court on Defendant's motion for
summary judgment on the basis that Plaintiffs cannot, as a
matter of law, establish proximate causation as to their
professional negligence/legal malpractice claim because, even
if Defendant had timely filed the required Tort Claims
Notice, Plaintiffs would not have prevailed in the underlying
case against Atlantic County, often referred to as “the
suit within a suit.” [Docket Item 9.] The principal
issues to be decided are whether, in the context of the
“suit within a suit, ” Atlantic County had notice
of the dangerous condition and if Atlantic County's
conduct was “palpably unreasonable.” For the
reasons discussed below, the answer to both questions is no.
Accordingly, Defendant's motion for summary judgment will
be granted. The Court finds as follows:
Factual and Procedural Background.
4, 2009, Plaintiffs were walking together alongside Ventnor
Avenue near Jefferson Avenue in the City of Margate when
Marenbach stepped off the curb onto Ventor Avenue, intending
to cross the street. [Docket Item 9-6 (“Marenbach
Dep.”) at 36:5-37:14; 109:12-112:24.] As he stepped off
the curb, Marenbach's left foot immediately fell into a
pothole on Ventnor Avenue, which caused him to suffer
injuries to his left ankle and foot. [Docket Item 9-7
(“Pls.' Answers to Interrog.”) at ¶ 2.]
At the time of the incident, which occurred in the evening,
it was dark outside and the weather was clear. (Id.)
The asphalt depression (or “pothole”) was a small
area adjacent to the intersection crosswalk where the curbing
and asphalt road surface meet, and also adjacent to a storm
drain, but was not within the marked crosswalk itself.
(Marenbach Dep. at 107:3-113:14 and Exs. FM-33 and FM-34
thereto) [see also Docket Item 9-10 (“Frazier
Rep.”) at 2-3.]
September 2009, Plaintiffs engaged Mr. Land as counsel to
pursue personal injury claims against any responsible parties
arising out of this incident. (Compl. at ¶ 18.) To that
end, Land timely served New Jersey Tort Claims Notices on the
City of Margate and State of New Jersey. (SMF at ¶ 7;
RSMF at ¶ 7.) Thereafter, Land discovered that Ventnor
Avenue was actually “County Route 629, ” which
was controlled by Atlantic County, and a Tort Claims Notice
was untimely served on Atlantic County (i.e., after
the New Jersey Tort Claims Act's ninety-day statutory
period had concluded). (SMF at ¶ 8; RSMF at ¶ 8.)
late winter or early spring of 2010, Plaintiffs retained
Gerard Jackson, Esq. (“Jackson”), who filed a
Motion for Filing of Late Tort Claim as to Atlantic County
pursuant to N.J.S.A. § 59:8-9, which was denied by the
New Jersey Superior Court, Law Division, Atlantic County and
upheld by the New Jersey Superior Court, Appellate Division.
(SMF at ¶¶ 9-10; RSMF at ¶ 9-10.) Jackson also
filed a civil claim on behalf of Plaintiffs for Mr.
Marenbach's injuries against the City of Margate in this
Court, which was assigned to the Honorable Noel L. Hillman.
Frank B. Marenbach and Debra McKibbin, h/w v. City of
Margate, Civil No. 11-3832 (D.N.J. filed on July 1,
2011). On April 29, 2013, Judge Hillman granted summary
judgment in favor of the City of Margate, finding that
Plaintiffs had not provided sufficient evidence to establish
that the City of Margate “controls” Ventnor
Avenue or that the City of Margate had actual or constructive
notice of the alleged dangerous condition, a requirement
under the New Jersey Tort Claims Act. Marenbach v. City
of Margate, 942 F.Supp.2d 488, 493-96 (D.N.J. 2013).
November 18, 2016, Plaintiffs filed the instant action in the
Superior Court, Atlantic County, Law Division, alleging,
inter alia, that “[a]t material times, Mr.
Land was careless and negligent, both generally, and, in
particular (but not limited to) by reason of his failure to
provide the County of Atlantic with a timely ninety-day
statutory notice of claim, such notice being a mandatory
requirement to preserve such a claim under the New Jersey
[Tort Claims Act], ” and “[a]s a proximate and
direct result of Mr. Land's professional negligence . .
., Plaintiff's rights of recovery under the [Tort Claims
Act] as to the County of Atlantic were lost.” (Compl.
at ¶¶ 22-23.) Defendant removed this action to
federal court on the basis of diversity jurisdiction under 28
U.S.C. §§ 1332 and 1441 [Docket Item 1], and then
filed an Answer. [Docket Item 4.] Plaintiffs timely filed an
Affidavit of Merit signed by Keith J. Cohen, Esq., as
required under N.J.S.A. § 2A:53A-29. [Docket Item 7.]
Following discovery, Defendant moved for summary judgment.
[Docket Item 9.] Plaintiffs filed a brief in opposition
[Docket Items 11, 13], and Defendant filed a Reply. [Docket
Item 12.] The pending motion is now fully briefed and ripe
for disposition. The Court will decide the motion without
oral argument pursuant to Fed.R.Civ.P. 78.
Standard of Review.
summary judgment, the moving party bears the initial burden
of demonstrating that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); accord Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once a properly
supported motion for summary judgment is made, the burden
shifts to the non-moving party, who must set forth specific
facts showing that there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). In reviewing a motion for summary judgment,
the court is required to examine the evidence in light most
favorable to the non-moving party and resolve all reasonable
inferences in that party's favor. Scott v.
Harris, 550 U.S. 372, 378 (2007); Halsey v.
Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).
factual dispute is material when it “might affect the
outcome of the suit under the governing law, ” and
genuine when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. The non-moving party
“need not match, item for item, each piece of evidence
proffered by the movant, ” but must present more than a
“mere scintilla” of evidence on which a jury
could reasonably find for the non-moving party. Boyle v.
Cnty. of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d
Cir. 1998) (quoting Anderson, 477 U.S. at 252).
recover for legal malpractice in New Jersey, a plaintiff must
prove: (1) the existence of an attorney-client relationship
creating a duty of care by the defendant attorney; (2) the
breach of that duty by the defendant; and (3) proximate
causation of the damages claimed by the plaintiff.
Jerista v. Murray, 883 A.2d 350, 359 (N.J. 2005) For
purposes of this motion, Defendant admits that Land and
Plaintiffs had an attorney client relationship and that Land
breached the duty of care owed to Plaintiffs to properly
notify Atlantic County. [Docket Item 9-3 (“Def.'s
Br.”) at 13.] Thus, the sole disputed issue here is
Under New Jersey law, to prove proximate causation in a legal
malpractice case, “a client seeking to recover damages
against an attorney who failed to file suit within the
applicable limitation period must ‘establish the
recovery [that] the client would have obtained if malpractice
had not occurred.'” Polidoro v. Saluti,
675 Fed.Appx. 189, 190-91 (3d Cir. 2017) (quoting Frazier
v. New Jersey Mfrs. Ins. Co., 667 A.2d 670, 676 (N.J.
1995)). To do so, a plaintiff may “proceed by way of a
‘suit within a suit' in which a plaintiff presents
the evidence that would have been submitted at a trial had no
malpractice occurred.” Garcia v. Kozlov, Seaton,
Romanini & Brooks, P.C., 845 A.2d 602, 611-12 (N.J.
2004). Specifically, the plaintiff must show by a
preponderance of the evidence that, but for the professional
malpractice or other misconduct, “(1) he would have
recovered a judgment in the action against the main
defendant, (2) the amount of that judgment, and (3) the
degree of collectability of such judgment.”
Id. (quoting Hoppe v. Ranzini, 385 A.2d
913, 917 ( N.J.Super.Ct.App.Div. 1978)). Accordingly, to
defeat summary judgment here, Plaintiffs must demonstrate
that a reasonable fact finder could find that it is more
likely than not they would have prevailed in a New Jersey
Tort Claims Act case against Atlantic County if Mr. Land had
timely filed a Tort Claims Act Notice, extending all
reasonable factual inferences in favor of Plaintiffs as the
parties opposing summary judgment.
New Jersey Tort Claims Act (“NJTCA” or “the
Act”), N.J.S.A. § 59:4-1 to 14-4, governs claims
against governmental entities arising from dangerous
conditions on public property. Any application of the Tort
Claims Act “must start from its guiding principle, that
is, that immunity from tort liability is the general rule and
liability is the exception.” Polzo v. County of
Essex,960 A.2d 375, 380 (N.J. 2008) (“Polzo
I”) (internal citations omitted). Under the Act, a
plaintiff must show: (1) that the property was in a dangerous
condition; (2) that the injury was proximately caused by the
dangerous condition; and (3) that the dangerous condition
created a foreseeable risk of injury. N.J.S.A. § 59:4-2.
Additionally, a plaintiff must show either that “a
negligent or wrongful act or omission” of a public
employee created the dangerous condition or that the
“public entity had actual or constructive
notice of the dangerous condition . . . a
sufficient time prior to the injury to have taken measures to
protect against the dangerous condition.” N.J.S.A.
§ 59:4-2(a)-(b) (emphasis added). The Act further
provides that, even if a dangerous condition existed and the
public entity was on notice, the public entity nevertheless
will be immune from liability “if the action the ...