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Marenbach v. Land

United States District Court, D. New Jersey

August 27, 2018

ROBERT LAND, Defendant.



         Plaintiffs 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:[1]

         1. Factual and Procedural Background.

         On July 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.]

         2. In 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.)

         3. In 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).

         4. On 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.

         5. Standard of Review.

         At 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).

         6. A 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).

         7. Discussion.

         To 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 proximate causation.

         8. 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.

         9. The 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 ...

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