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holding that Ocean City's failure to repair the one-quarter inch raised nail in its boardwalk was not palpably unreasonable because Ocean City conducted safety inspections of the boardwalk four to six times per month, and because the section of the boardwalk where the plaintiff fell was scheduled to be replaced at a later date
Summary of this case from Charney v. City of WildwoodOpinion
Civil Action No. 02-5390 (JEI).
October 12, 2004
Louis P. McFadden, Jr., Esq., Linwood, New Jersey, Counsel for Plaintiffs.
David S. DeWeese, Esq., Law Offices of Stagliano DeWeese, P.A., Wildwood, New Jersey, Counsel for Defendant City of Ocean City.
OPINION
This is a diversity action brought by Plaintiffs Sheila and Barry Mendelsohn against the Defendant City of Ocean City ("City") for compensatory damages after Mrs. Mendelsohn suffered lasting injuries due to an accident on the Ocean City Boardwalk ("Boardwalk"). In Count I of the complaint, the Plaintiffs seek compensation for Mrs. Mendelsohn's injuries, emotional distress, current and future pain and suffering, medical expenses, and general diminution of her quality of life. In Count II, the Plaintiffs seek damages for Mr. Mendelsohn's emotional pain and suffering due to the loss of consortium of his wife, and general diminution of the quality of his life. Presently before the Court is the Defendant's motion for summary judgment on both counts, pursuant to Fed.R.Civ.P. 56(c). For the reasons set forth below we grant the Defendant's motion as to both counts of the complaint.
I.
On the morning of November 11, 2000, Plaintiffs were walking north on the Boardwalk between 14th and 15th Streets, as they had done approximately twice a week for the past ten years. (Dep. of S. Mendelsohn at 15:9.) They were moving at a moderate pace when Mrs. Mendelsohn fell on the boardwalk. In Plaintiff's words, she "suddenly stumbled on a nail" and "literally went flying forward." ( Id. at 22:25, 23:3-4.) Plaintiff did not see what caught her right foot and caused her to stumble, but testified at her deposition that she knew it was a protruding nail by "the way it caught my sneak [sic]." ( Id. at 25:14-25.) Plaintiff fell forward and landed on her chest and left shoulder. ( Id. at 27:15-17, 28:2.)
Plaintiff was taken by ambulance to Shore Memorial Hospital's emergency room, where x-rays performed on her left shoulder revealed a fracture dislocation of the humeral head. (Def's. Ex. G.) Two reductions were performed on her shoulder, and subsequent x-rays revealed the reduction had been successful and that the fracture was in a good position. (Def's. Ex. H.) Plaintiff's shoulder was immobilized and she was advised to follow up with her family doctor in a week to ten days. (Def's. Ex. G.)
Plaintiff saw a series of specialists after her accident. Two days after her fall, Plaintiff was evaluated by Dr. Matthew Ramsey, an orthopedic surgeon at the Penn Orthopedic Institute in Philadelphia. (Def's. Ex. H.) Dr. Ramsey noted that Plaintiff had "profound paralysis of the hand with numbness and tingling into the entire hand and fingers." ( Id.) At a follow-up appointment one week later, Dr. Ramsey gave Plaintiff a prescription for pain management and occupational therapy. (Def's. Ex. I.) Plaintiff was also referred to Dr. Randy Rosenberg for a neurological examination. (Def's. Ex. J.) Dr. Rosenberg's examination revealed "significant left brachial plexopathy," or an injury to Plaintiff's left brachial plexus. ( Id.) Plaintiff was prescribed Neurontin for pain control. ( Id.) Six weeks after the incident, she saw Dr. Shawn Bird, a neurologist at the University of Pennsylvania, for an electromyograph ("EMG") of the muscles of her left arm. (Def's. Ex. K.) Dr. Bird concluded that the EMG revealed acute denervation, or nerve damage, in Plaintiff's left biceps and triceps, with moderately reduced reduction in recruitment. ( Id.) He saw evidence of severe acute denervation in the muscles innervated by the C8 and T1 myotomes. ( Id.) Dr. Bird's impression was that the EMG results were consistent with severe left brachial plexopathy. ( Id.)
Additional visits to these specialists and subsequent testing confirmed the diagnosis of brachial plexopathy. Plaintiff continued with occupational therapy and has been able to recover use of her left arm above the wrist. (Def's. Ex. U.) On May 16, 2002, Dr. Raphael noted that Plaintiff's brachial plexus injury appeared to be at "maximum medical improvement" and discharged the plaintiff from his care. (Def's. Ex. AA.) However, she continues to suffer from numbness and pain in her left hand below the wrist, with some limitation on her motor function in that hand. (Pls'. Ex. 9.) A final EMG conducted on May 6, 2002, revealed some nerve regrowth, although the reviewing physicians noted that there was evidence of chronic denervation. (Def's. Ex. Z.) Plaintiff began seeing Dr. Evan Frank at the Jefferson Pain Center five months after the accident and continues to receive pain management medications and procedures under his care. (Pls'. Ex. 10.)
During the months prior to the accident, protruding nails were repaired on many occasions on the 1400 block of the Boardwalk. (Pls'. Ex. 11.) City maintenance personnel last re-nailed protruding nails on the block five days before Plaintiff's fall. ( Id.) Officer James Sampson of the Ocean City Police Department, the responding officer at Plaintiff's accident, stated on his report that he found the entire 1400 block to be in "normal condition," with no protruding nails or boards. (Def's. Ex. B-1.) On or about November 14, 2000, the section of the Boardwalk where Plaintiff fell was removed and subsequently rebuilt.
II.
Under Fed.R.Civ.P. 56(c) a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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." The non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible evidence establishing a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In deciding a motion for summary judgment, the court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not to "weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Where the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring).
III.
Claims against public entities regarding the condition of public property are governed by the New Jersey Tort Claims Act, found at N.J. Stat. Ann. § 59: 4-1 through 4-9. Specifically, N.J. Stat. Ann. § 59: 4-2 provides that:
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 that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
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.
N.J. Stat. Ann. § 59:4-2 (1972). The Act sets a high bar for plaintiffs seeking to recover damages from a municipality, as "[g]enerally, immunity for public entities is the rule and liability is the exception." Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999).
Plaintiffs argue that the Boardwalk was in a dilapidated, dangerous condition due to Defendant's negligent maintenance and use of vehicles on the walkway. As a result, Mrs. Mendelsohn tripped over a protruding nail, causing her serious injury and permanent loss of bodily function. Plaintiffs argue that the kind of injury Mrs. Mendelsohn suffered was a reasonably foreseeable result of Defendant's negligence. Finally, Plaintiffs contend that Defendant was aware of the dangerous condition of the Boardwalk and that its failure to remedy the problems was palpably unreasonable. Defendant contests each of Plaintiffs' allegations, and argues that Mrs. Mendelsohn did not exercise due care in walking along the Boardwalk, nor is her injury sufficiently serious to overcome the bar to recovery contained in N.J. Stat. Ann. § 59:9-2(d). Because this Court holds as a matter of law that there was no dangerous condition and that Defendant's maintenance of the Boardwalk was not palpably unreasonable, Defendant's motion for summary judgment is granted.
N.J. Stat. Ann. § 59:9-2(d) provides:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.
A. Dangerous condition
To overcome this municipal immunity, Plaintiffs must first demonstrate that the alleged boardwalk defects constituted a "dangerous condition at the time of the injury." The Act defines a "dangerous condition" 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." N.J. Stat. Ann. § 59: 4-1 (1972) (emphasis added). "In certain cases, this question of `dangerous condition' must be resolved by the court as a matter of law, in order to ensure that the `legislatively-decreed restrictive approach to liability' is enforced." Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 643 (D.N.J. 1997), quoting Polyard v. Terry, 160 N.J. Super. 497, 508 (N.J.Super.Ct. App. Div. 1978). On motion for summary judgement, the standard is whether reasonable minds could differ as to whether the condition of the boardwalk was "dangerous" as defined by the Act. Id. at 643; Polyard, 160 N.J. Super. at 510; McCarthy v. Verona, No. A-2210-99T2, 2001 WL 1917169 *2 (N.J.Super.Ct. App. Div. Apr. 16, 2001).
Not all injury-causing defects or irregularities on public property trigger the liability provisions of the Act. The Appellate Division in Polyard held that "not every defect in a highway, even if caused by negligent maintenance, is actionable." 160 N.J. Super. at 508 (granting summary judgment for defendants and finding that a three-eighths of an inch "declivity" in the roadway's surface was not a dangerous condition). "Travelers on highways must expect some declivities and some areas of imperfect surfaces." Id. at 509.
Polyard's limiting language has also been applied in cases where pedestrians and bicyclists seek damages for injuries sustained due to negligent maintenance of sidewalks and roadways. See, e.g., Cordy, 975 F. Supp. at 643; McCarthy, 2001 WL 1917169, at *1. The New Jersey courts have recognized that the dangerousness of surface declivities and irregularities should be assessed in light of the anticipated use of the property, and therefore, a declivity which would not pose a substantial risk of injury for automobile use might constitute a dangerous condition for pedestrians and bicyclists. Atalese v. Long Beach Township, 365 N.J. Super. 1, 6 (N.J.Super.Ct. App. Div. 2003). According to the Atalese court, in order to present a "substantial risk of injury" as the Act requires, a condition cannot be "minor, trivial or insignificant." Id. at 5.
Even with all reasonable inferences drawn in their favor, Plaintiffs have not presented sufficient evidence to raise a material issue of fact as to whether a dangerous condition existed at the time of Mrs. Mendelsohn's injury. The bulk of Plaintiffs' evidence with respect to dangerousness is more accurately described as relating to causation. Assuming that Mrs. Mendelsohn did indeed trip on a nail, that fact does not, by itself, establish that the protruding nail was a dangerous condition. Plaintiffs' expert, Ronald E. Cohen, concluded that "certain popped nails caused a foreseeable pedestrian fall hazard" and that "[t]he fall as described by Sheila Mendelsohn was consistent with a popped nail suddenly and unexpectedly interrupting the swing of her foot." (Pls'. Ex. 6, at 7.) However, the definition of dangerousness under the Act anticipates more than a foreseeable likelihood — a plaintiff must demonstrate a substantial risk of injury.
Other courts have found that defects of similar or greater magnitude than the one quarter inch nail protrusion at issue here were not dangerous conditions. In McCarthy, the Appellate Division held that a one and one-half inch surface separation and one and one-quarter inch height differential between two slabs of concrete in a sidewalk did not constitute a dangerous condition under the Act, stating "the slightly elevated sidewalk slab could not rationally be found to have created a substantial risk of injury. Such minor irregularities are commonplace on sidewalks." McCarthy, 2001 WL 1917169, at *2 (citation omitted) (emphasis added). In an unpublished decision, the Appellate Division in Hopkins v. Camden County held that a pothole in a crosswalk did not create a dangerous condition for pedestrians using the crosswalk, noting that the defect was not large, was visible and easily avoided. Hopkins v. Camden County, No. A-5200-95T1 (N.J.Super.Ct. App. Div. Jan. 2, 1997).
In contrast, those cases in which courts have found that a dangerous condition existed involve larger and more significant roadway defects. In Gumpel v. Board of Education of the Township of Nutley, No. A-0348-02T3 (N.J.Super.Ct. App. Div. Oct. 21, 2003), an unpublished decision of the Appellate Division, the court denied summary judgment for the defendant where there was a two and a half inch height difference between an adjoining concrete slab and section of asphalt on a walkway through school grounds. The Atalese court found that a one block long 3/4 inch difference in the level of the pavement on portions of a bike lane designed for bicycle and pedestrian traffic could be accepted by a jury as a dangerous condition under the Act. Atalese, 365 N.J. Super. at 6.
Plaintiffs' reliance on Schwartz v. Jordan, 337 N.J. Super. 550 (N.J.Super.Ct. App. Div. 2001), to suggest that this Court should look at the condition of the Boardwalk as a whole is inapposite. In Schwartz, the Appellate Division considered evidence of the conditions in the "corridor" of road where the plaintiff's accident occurred. Id. at 554-563. However, it did so in the context of assessing whether Plainsboro Township's failure to remedy those conditions was palpably unreasonable, not in determining the dangerousness of the crosswalk at issue. Id. Also, the evidence presented by the plaintiff in Schwartz of the condition of the "corridor" was relevant to the causation of the accident in question, particularly the quality and extent of the lighting in the area. Id. In the instant case, the presence of protruding nails in other sections of the boardwalk, and deteriorated boards throughout the length of the walkway, adds little given the Plaintiffs' claim that Mrs. Mendelsohn tripped over a specific nail in a specific location.
Additionally, the prior accident evidence presented by Plaintiffs does not meet the threshold standard set out in Wymbs v. Township of Wayne, 163 N.J. 523 (2000), for the use of such evidence to prove the existence of a dangerous condition. In Wymbs, the New Jersey Supreme Court held that a plaintiff must demonstrate "(1) the same or substantial similarity of circumstances between the prior accident and the one involved in the case on trial, and (2) the absence of other causes of the accident." Id. at 536. Of the twelve accidents occurring prior to November 11, 2000, that Plaintiffs list in their memorandum, only two were attributed to protruding nails. (Pls'. Mem. in Opp'n. to Def's. Mot. for Summ. J. at 11-12) The more recent of the two happened only four months before Mrs. Mendelsohn's fall, but occurred eight blocks from the site of her accident and appears from the description of the injury ("puncture foot") to not be a fall at all. The August 9, 1995, incident appears to have involved a fall on the same block as Mrs. Mendelsohn's accident. However, the rudimentary list does not describe how far the nail was protruding, the speed or activity of the person injured in the fall, the location of the protruding nail, or the weather conditions on the date of the incident, making it impossible to assess any similarity to Mrs. Mendelsohn's fall or the existence of other causes of the accident.
A nail protruding one quarter of an inch is not within the category of defects encompassed by the liability provisions of the Act. Any assessment of the dangerousness of a piece of public property must be done in light of the legislative purpose to restrict municipal liability. Cordy, 975 F. Supp. at 643. Should this Court accept that such a minor defect constituted a dangerous condition, "the court would, in effect, be imposing on the [City of Ocean City] an unfairly onerous burden to keep [the Boardwalk] free of any imperfections, regardless of their magnitude." Id. at 644. Since the Act's restrictions on liability were intended to ensure that "not every defect . . . is actionable," pedestrians must bear the burden of smaller irregularities in walkway surfaces. See Polyard, 160 N.J. Super. at 508.
B. Palpable Unreasonability
The Tort Claims Act places another significant restriction on the class of cases in which municipal immunity is abrogated. It specifies that "[n]othing 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." N.J. Stat. Ann. § 59:4-2 (1972) (emphasis added). The New Jersey Supreme Court has concluded that "palpably unreasonable" requires a breach of duty that is beyond ordinary negligence, and "implies behavior that is patently unacceptable under any given circumstance." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985). The Comment to Section 59:4-2 suggests that this restriction represents the policy that "a public entity's discretionary decisions to act or not to act in the face of competing demands should generally be free from the second guessing of a coordinate branch of Government." N.J. Stat. Ann. § 59:4-2 (1972).
Although the question of the palpable unreasonableness of a municipality's action or inaction is generally one for the jury, it may be decided by a court as a matter of law in appropriate cases. Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-51 (N.J.Super.Ct. App. Div. 2002). See also Penny v. Borough of Wildwood Crest, 28 Fed. Appx. 137 (3d. Cir. 2002) ("[L]ike any other fact question before a jury, [such determination] is subject to the court's assessment whether it can reasonably be made under the evidence presented."); Garrison v. Twp. of Middletown, 154 N.J. 282, 311 (1998) (Stein, J., concurring).
Plaintiffs contend that Defendant was palpably unreasonable in its failure to switch from nails to screws in holding the Boardwalk together, adopt a written maintenance policy for the Boardwalk, or replace the Boardwalk despite acknowledging its dilapidated condition in 1998. According to Plaintiffs, Defendant's unreasonableness is more acute given its awareness of the safety threat posed by nail "pop-ups" and its knowledge of prior accidents due to the unsafe condition of the Boardwalk. Robert E. Cohen, Plaintiffs' expert, concluded that Defendant knew about the problem of nail pop-ups and the accident risk posed by them, and gave his opinion as to standard engineering practice for maintaining boardwalks, of which he felt Defendant fell short. (Pls'. Ex. 1.) He opined that standard practice called for the use of screws or the counter-sinking of decking fasteners, rather than driving a new or the same nail into an existing hole, which he maintained was Defendant's current practice. ( Id.) Plaintiffs' also offer the deposition testimony of Joseph Berenato, general supervisor of public works for Ocean City (Pls'. Ex. 4), the notes of an adjuster for Defendant's insurer, Scibal Insurance, (Pls'. Ex. 7), as well as extensive repair logs (Pls'. Ex. 11) to establish that Defendant was aware of maintenance problems and tripping hazards along the boardwalk, as well as the need for a written maintenance policy. Although its provenance is unclear, Plaintiffs also offer a chart listing prior accidents due to protruding nails, loose boards and other surface irregularities along the boardwalk. (Pls'. Ex. 8.)
However, the actions taken by Defendant demonstrate that its failure to repair the Boardwalk does not rise to the high level of patent unacceptability. City employees made "safety inspections" of the Boardwalk four to six times a month. (Pls'. Mem. in Opp'n. to Def's. Mot. for Summ. J. at 18.) The last repair log entry specifically for the 1400 block was made almost two weeks before Plaintiff's accident, and it noted that several protruding nails were nailed down. (Pls'. Ex. 11.) Five days prior to Plaintiff's accident an inspection was conducted, and city employees nailed down protruding nails between the 500 and 1500 blocks of the boardwalk. ( Id.) Additionally, the 1400 block was scheduled to be repaired in early September, although the section replacement was postponed for unspecified reasons until after Plaintiff's accident. (Pls'. Mem. in Opp'n. to Def's. Mot. for Summ. J. at 18.)
In Schwartz, the Appellate Division described the calculus used to determine whether a municipality's actions were patently unacceptable:
Consideration of whether the Township's actions were palpably unreasonable requires an understanding of not only what was done, but what the Township's motivating concerns were. Simply put, the greater the risk of danger known by the Township and sought to be remedied, the greater the need for urgency.Schwartz, 337 N.J. Super. at 563. In that case, the court held that the trial court improperly excluded evidence of prior accidents resulting in serious injury and death which occurred in the same area as the accident in question, and were also attributed to insufficient lighting. With the excluded evidence, the Schwartz court felt there was a jury question as to whether the Township's actions were palpably unreasonable.
The cost and difficulty of the more prudent action are also factors courts consider in determining whether a municipality's actions were palpably unreasonable. The Appellate Division in Roe v. New Jersey Transit Rail Operations, 317 N.J. Super. 72 (N.J.Super.Ct. App. Div. 1998), held that "a jury could conclude that the actions [the defendant] took were palpably unreasonable in view of the relatively minor expense and inconvenience" of the course of conduct that would have prevented the rape of a minor child. Id. at 82. In other cases courts have found that it was palpably unreasonable for the municipality to have taken no action in the face of a known dangerous condition. See, e.g., Vincitore v. New Jersey Sports Exposition Authority, 169 N.J. 119 (2001) (holding that public entity acted in a palpably unreasonable manner by failing to place guards at railroad crossing to operate gates).
With or without evidence that a municipality had notice of a dangerous condition, courts have found that it is not palpably unreasonable for a municipality to have not repaired small irregularities in walkway surfaces. See, e.g., Maslo, 346 N.J. Super. 346 (not palpably unreasonable to fail to repair one inch difference in elevation between portions of sidewalk); McCarthy, 2001 WL 1917169 (not palpably unreasonable to fail to repair slab of concrete sidewalk that protruded one and one quarter inch where raised section was obscured by shadow); Gohel v. Sherry, No. A-1610-97T1, 1998 WL 34024178 (N.J.Super.Ct. App. Div. 1998) (not palpably unreasonable to fail to repair two cracks in a sidewalk approximately one to two inches wide, a half an inch deep and five to six inches long).
In essence, Plaintiffs argue that inspections should have been done more frequently, the repairs could have been more effective, and the replacement of the 1400 block should have occurred sooner. While Defendant may have been negligent in not acting as Plaintiffs suggest it should have, mere negligence is not enough to recover under the Tort Claims Act. This is not a situation, as in Schwartz, where a municipality is aware of prior fatal accidents due to a particular cause and does nothing. Nor is it a case where a municipality failed to take an inexpensive and easy step to remedy a dangerous condition, as in Roe. Here, Defendant's maintenance of the Boardwalk may not have been optimal. However, it was taking steps to address the nail pop-up problem and replace dilapidated sections of the boardwalk, albeit not entirely on schedule, in accordance with its Boardwalk Master Plan issued in 1995. (Def's. Ex. D.) "[G]overnment should not have the duty to do everything that might be done." N.J. Stat. Ann. § 59:1-2 (1992). Defendant's failure to do more was not palpably unreasonable, it was simply not enough to prevent Mrs. Mendelsohn's injuries.
Because we find that no dangerous condition existed, and that in any instance, the action or inaction of the Defendant was not palpably unreasonable, there is no need to reach the remaining elements of the Tort Claims Act. Additionally, there is no need to reach question of whether Mrs. Mendelsohn's injuries were sufficiently serious to met the injury threshold set by N.J. Stat. Ann. § 59:9-2(d).
III.
For the reasons set forth above, the Court will enter summary judgment for Defendant. The Court will issue an appropriate order.