NETTIE JANE BARNABEI v. CITY OF OCEAN CITY

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2425-05T12425-05T1

NETTIE JANE BARNABEI,

Plaintiff-Appellant,

v.

CITY OF OCEAN CITY,

Defendant-Respondent.

_________________________________________________

 

Submitted September 5, 2006 - Decided

Before Judges Payne and Gilroy.

On appeal from Superior Court of New

Jersey, Law Division, Cape May County,

L-303-03.

Jacobs & Barbone attorneys for appellant

(Louis M. Barbone, of counsel, Arthur J.

Murray on the brief).

Law Offices of Neil Stackhouse attorneys

for respondent (Neil Stackhouse on the

brief).

PER CURIAM

Plaintiff Nettie Barnabei sued defendant City of Ocean City, alleging that she tripped on a "warped and misaligned" boardwalk board and fell, sustaining a torn rotator cuff. She appeals from an order of summary judgment entered against her following the close of discovery on the ground that she had failed to establish the liability of the City pursuant to the relevant provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1 to 12-3; particularly, N.J.S.A. 59:4-2. That statute provides:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and . . .

* * *

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

In granting summary judgment, the motion judge held that Barnabei had failed to establish that Ocean City had actual or constructive knowledge of the condition, and even assuming such knowledge, that in light of evidence of Ocean City's daily weekday inspections of the boardwalk, she had failed to demonstrate that Ocean City's failure to discover and correct the allegedly misaligned board was palpably unreasonable.

The record demonstrates that Barnabei was injured on Sunday, June 10, 2001 while walking on the Ocean City boardwalk with her two sisters and a niece. The accident occurred in front of Curley's Fries, where one of the sisters and the niece had purchased lemonade. When asked what caused the accident, Barnabei testified at her deposition: "I believe it was a warped board." However, when asked whether she had actually seen the warped board upon which she tripped, Barnabei responded: "No. I just felt my foot get hooked and I started flying." Although Barnabei testified that both sisters had seen the warped board, their observations, if any, are not contained in the record. No family member ever returned to the scene of the accident to identify the board upon which Barnabei had tripped, and it has not been otherwise identified or described.

The record also demonstrates that Ocean City's boardwalk is approximately five miles in length. The City has a Department of Public Works that employs approximately thirty persons, one-half of which are assigned to engineering/construction, the section responsible for the boardwalk. The Department maintains log sheets and inspection reports, produced in discovery, which reveal a record of virtually daily weekday boardwalk inspections and repairs between May 7 and June 10. No repairs or inspections occur on the weekends. The log sheets disclose no evidence of recognition by the City of a dangerous condition at the site of Barnaby's fall following her accident, and no repairs at the site through the remainder of the month of June.

As the statutory language reflects, N.J.S.A. 59:4-2 requires that for recovery to occur, a plaintiff must prove (1) that a dangerous condition existed on the property at the time of the injury, (2) that the dangerous condition proximately caused the injury, (3) that the dangerous condition created a foreseeable risk of the kind of injury incurred, (4) either a public employee created the condition (a matter not alleged in this case) or that the public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have protected against it, and (5) the action or inaction of the public entity in regard to its protective efforts was palpably unreasonable. Vincitore v. Sports & Expo. Auth., 169 N.J. 119, 125 (2001).

We affirm the conclusion of the trial court that Barnabei has failed to produce evidence of a dangerous condition and of notice of that condition to the City. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.). certif. denied, 154 N.J. 608 (1998).

A "dangerous condition" is defined in N.J.S.A. 59:4-1 as: "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." The record in this case offers an allegation by Barnabei of a dangerous condition, consisting of a warped and misaligned boardwalk board. However, she has testified that she did not view the condition, the statements of her companions who may have done so have not been provided, and the board has not otherwise been identified or described. Ocean City has argued without contradiction that, despite its maintenance regime, no evidence exists of a repair in the area of Barnabei's fall following that occurrence, raising the inference that its employees found nothing dangerous to exist in the area. Although whether a property is in a dangerous condition is generally a question of fact for resolution by the jury, id. at 123, here the evidence that would provide the foundation for the jury's consideration is apparently lacking. The mere fact of a fall does not suffice in this circumstance. Similarly, the evidence is insufficient for a jury to determine whether the condition was such that it created a foreseeable risk of injury of the sort sustained by Barnabei.

The absence of any evidence of a dangerous condition is crucial, as well, in connection with the requirement of notice. In this case, there is no proof of actual notice to Ocean City, and plaintiff's proofs must therefore focus on constructive notice. N.J.S.A. 59:4-3 provides that: "A public entity shall be deemed to have constructive notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." But here, no evidence suggests either that the alleged condition was obvious or permits an inference that it was longstanding. Compare Chatman v. Hall, 128 N.J. 394, 418 (1992) (declaring that constructive notice could be found on the basis of evidence of the size and duration of a pothole in a municipal street).

Thus, Barnabei has provided no evidential foundation upon which a jury could premise a conclusion that constructive notice of the allegedly dangerous condition existed. Summary judgment was thus properly entered. Grzanka v. Pfeifer, 301 N.J. Super. 563, 574-75 (App. Div.), certif. denied, 154 N.J. 607 (1997).

Although acknowledging Ocean City's practice of inspecting its boardwalk throughout the work week, Barnabei contends that it acted in a palpably unreasonable fashion in failing to inspect the boardwalk on weekends, as well. Barnabei argues further that because weekend inspections would have required a reallocation of resources, it was Ocean City's burden pursuant to N.J.S.A. 59:2-3d to prove that its existing allocation of resources was not palpably unreasonable, Brown v. Brown, 86 N.J. 565, 578-79 (1981), and it failed to meet that burden.

It is not clear from the record that this argument was raised before the motion judge. However, if it was, it must nonetheless fail as a factual matter because of the absence of any evidence that an inspection, conducted on Saturday June 9 or Sunday June 10 before Barnabei's fall, would have disclosed a dangerous condition requiring repair.

The order of summary judgment is therefore affirmed.

 

A prior order of summary judgment based upon a determination that Barnabei's injuries failed to meet the requirements for recovery of damages for pain and suffering established by N.J.S.A. 59:9-2d was reversed by us in an unreported opinion. Barnabei v. City of Ocean City, No. 6576-03T1 (App. Div. June 24, 2005).

Barnabei's attorney states in his brief that Barnabei's family members gave tape-recorded statements, unchallenged by Ocean City, as to their observations, "which were offered to the motion judge as part of the record to substantiate what was contained on them." However, neither the texts of the statements nor certifications by family members is a part of the appellate record, and no reference to the tapes appears in the decision of the motion judge or in the list of items submitted in connection with the motion.

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A-2425-05T1

 

October 16, 2006