Reese v. Finley ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-3-2007
Reese v. Finley
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4657
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"Reese v. Finley" (2007). 2007 Decisions. Paper 1816.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4657
DIANE L. REESE and DONALD REESE
Appellants
v.
ROBERT FINLEY and CITY OF OCEAN CITY
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 03-04029)
District Judge: Honorable Jerome B. Simandle
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 13, 2006
Before: FUENTES and VAN ANTWERPEN, Circuit Judges, and PADOVA,*
District Judge.
(Filed: January 3, 2007)
____
OPINION OF THE COURT
_____________
*The Honorable John R. Padova, District Judge of the Eastern District of Pennsylvania,
sitting by designation.
PADOVA, District Judge.
Appellants Diane L. Reese and Donald Reese appeal the District Court’s order
granting summary judgment in favor of the City of Ocean City in a tort claim brought by
them pursuant to the New Jersey Tort Claims Act as a result of injuries sustained by Mrs.
Reese in an accident on Ocean City’s Boardwalk.
Appellants raise three issues on appeal. First, they contend that the District Court
erred by concluding, as a matter of law, that the width of the Ocean City Boardwalk was
not a “dangerous condition of property” under the New Jersey Tort Claims Act, N.J. Stat.
Ann. § 59:1-1, et seq. Second, they argue that the District Court erred by concluding, as a
matter of law, that Ocean City did not act in a “palpably unreasonable” manner in its
conduct regarding recreational bicycle use on its Boardwalk. Third, they contend that the
District Court erred in failing to consider their argument that Ocean City was not entitled
to design immunity under the Act.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We will
affirm.
I. Factual Background
Because we write solely for the parties, we set forth only those facts necessary to
our analysis.
On Friday, July 19, 2002 at approximately 7:30 a.m., Mrs. Reese, a 58-year-old
school teacher, was walking on the Boardwalk between 18th and 19th Streets in Ocean
City, New Jersey, proceeding northbound with her sister-in-law to her right. At the same
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time, Robert Finley was riding a bicycle on the Boardwalk between 18th and 19th Streets
traveling northbound. When Finley first saw Mrs. Reese, he was approximately twenty
feet behind her, and there were no other individuals between them. As Finley approached
Mrs. Reese, he attempted to pass her on her left. However, according to Finley, four
teenagers, whom he called “hot-doggers,” traveling southbound swerved out one by one,
consuming the space that he needed to make his pass, and forcing him to veer his bicycle
into Mrs. Reese, striking her from behind. Mrs. Reese was knocked to the ground. She
struck her head on the Boardwalk, and was rendered unconscious.
The parties presented conflicting evidence regarding whether the Boardwalk was
crowded at the time of the accident, and whether the accident would have occurred if the
Boardwalk were wider. Finley testified that there were bikers, joggers, and pedestrians
all sharing the same space on the Boardwalk and that the Boardwalk was “kind of a free
for all.” The police officer who arrived at the scene of the accident noted in his report
that traffic was “extremely heavy” at the time of the incident. Ocean City, however,
contends that there was light traffic on the Boardwalk and points to Finley’s testimony in
which he states that, at the moment he made his decision to pass Mrs. Reese, the distance
between her and the next group of individuals traveling southbound on the Boardwalk
was twenty feet.
At the location of the collision between Finley and Mrs. Reese, the Boardwalk is
approximately 14.5 feet wide. Finley testified that the width of the Boardwalk
contributed to the cause of the accident. However, Ocean City contends that Finley
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repeatedly testified that there was sufficient room and time for him to pass Mrs. Reese
safely. For example, Finley testified: “It looked like [passing Reese and her companion]
was clearly going to be easy,” “I clearly had enough time to pass,” and “I still had room
to pass.” Finley also testified that there was sufficient space for Mrs. Reese and her
companion to walk closer to the Boardwalk railing on the ocean side to allow him to pass
without incident, and that the bikers traveling southbound caused him to divert his path
into Mrs. Reese. Appellants presented a report from Leonard Lucenko, Ph.D., a certified
expert in recreational safety and engineering, who concluded that the Boardwalk is too
narrow in the area between 14th and 23rd Streets to accommodate all the traffic permitted
on the Boardwalk and that this narrowness creates a dangerous and unsafe condition for
those using the Boardwalk. Finally, Appellants assert that officials from Ocean City were
aware of the hazards and dangers created by the congestion and operation of bicycles on
the narrow portion of the Boardwalk prior to Mrs. Reese’s injury in July 2002. Ocean
City, however, asserts that because the Boardwalk plays a crucial role in the economic
well being of the city, it has taken steps to address increasing congestion on the
Boardwalk and accidents which may occur as a result of this congestion. These actions
include: limiting the hours bicycle use is permitted on the Boardwalk, limiting the
location of where surrey carts can go, and widening the Boardwalk at certain locations.
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II. Standard of Review
Our review of the District Court’s grant of summary judgment is plenary. See
Witkowski v. Welch, 173 F.3d 192, 198 (3d Cir. 1999). Consequently, we assess the
record using the same summary judgment standard that guides the district courts. See
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). To prevail on a
motion for summary judgment, the moving party must demonstrate “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.” Fed. R. Civ. P. 56(c). In evaluating the evidence, we “view the
inferences to be drawn from the underlying facts in the light most favorable to the party
opposing the motion.” Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999).
III. Analysis
Appellants argue that the District Court erred in concluding that the width of the
Boardwalk did not create a dangerous condition of public property under the New Jersey
Tort Claims Act (the “Act”) because it failed to consider the permitted conduct and the
objectively foreseeable behavior of persons using the Boardwalk in combination with its
width.
The Act provides that public entities “shall only be liable for their negligence
within the limitations of the Act.” N.J. Stat. Ann. § 59:1-2. Under the Act, immunity
from tort liability is the general rule and liability is the exception. Bombace v. City of
Newark, 593 A.2d 335, 341 (N.J. 1991). One such exception is provided by § 59:4-2,
which states:
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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 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. “Dangerous condition” is defined 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.” Id. § 59:4-1(a). “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, 390 A.2d 653, 658 (N.J. Super. Ct. App. Div. 1978),
aff’d o.b., 401 A.2d 532 (N.J. 1979)).
Appellants contend that under New Jersey law, the district court should have
considered, along with the width of the Boardwalk, factors such as the conduct permitted
on the Boardwalk, the absence of lanes to separate bikers from pedestrians, lack of
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warnings to use extra caution in the narrow portion of the Boardwalk, and the failure to
monitor conduct of users of the Boardwalk to determine whether the Boardwalk was a
dangerous condition. Appellants rely on language in Levin v. County of Salem, 626 A.2d
1091 (N.J. 1993), that “whether a dangerous condition is present depends on a
combination of factors relating to physical condition, permitted conduct, and objectively
foreseeable behavior.” Id. at 1095. We do not agree that Levin supports Appellants’
position.
Contrary to Appellants’ argument, the New Jersey Supreme Court in Levin held
that a “dangerous condition” refers to the “physical condition of the property itself and
not to activities on the property.” Id. at 1095. In Levin, the plaintiff suffered a paralyzing
injury when he dove off a county bridge and hit a submerged sandbar. Id. at 1092. The
plaintiff appealed the granting of summary judgment in favor of the various government
entities arguing that the use of the bridge as a recreational facility, when the government
entities were aware of this use, created a dangerous condition of property. Id. at 1095.
The New Jersey Supreme Court affirmed that the bridge was not a dangerous condition.
Id. at 1098. In its opinion, the court rejected the approach taken by the New Jersey
Appellate Division in Burroughs v. City of Atlantic City, 560 A.2d 725 (N.J. Super. Ct.
App. Div. 1989), and relied upon by Appellants in their brief. Levin, 626 A.2d at 1095-
96. Burroughs held that “whether a dangerous condition is present depends on a
combination of factors relating to physical condition, permitted conduct, and objectively
foreseeable behavior.” Burroughs, 560 A.2d at 731. The Levin court was concerned that
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the Burroughs approach to determining whether there was a dangerous condition was too
broad and noted that other courts have understood a “dangerous condition” to refer only
to the “physical condition of the property itself.” Levin, 626 A.2d at 1095 (citing Sharra
v. City of Atlantic City, 489 A.2d 1252, 1255 (N.J. Super. Ct. App. Div. 1985)). The
court was also concerned that the Burroughs doctrine would effectively eliminate the
plan-or-design immunity conferred by N.J. Stat. Ann. § 59:4-6, because the plaintiff
alleged that the bridge was a dangerous condition since its lacked signs or means of
interdiction such as a chain-link fence. Id. at 1095-96.1 The court noted that the plan-or-
design immunity shelters the bridge designers’ decision to accept or reject the concept of
posting a chain-link fence along the sides of the bridge, and, therefore, reasoned that
allowing consideration of whether the absence of a chain-link fence created a “dangerous
condition” would permit plaintiffs to circumvent this plan-or-design immunity. Id. at
1096. Consequently, Appellants’ reliance on Levin is misplaced as the specific language
1
The plan-or-design immunity provision of the Act states:
Neither the public entity nor a public employee is liable under
this chapter for an injury caused by the plan or design of
public property, either in its original construction or any
improvement thereto, where such plan or design has been
approved in advance of the construction or improvement by
the Legislature or the governing body of a public entity or
some other body or a public employee exercising
discretionary authority to give such approval or where such
plan or design is prepared in conformity with standards
previously so approved.
N.J. Stat. Ann § 59:4-6.
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they rely upon in their brief was rejected by Levin.
The court in Levin also examined California case law because the California Tort
Claims Act was the model for the New Jersey Act. Id. The court noted with approval
that California cases have held that a physical defect in the public property must exist as a
precondition to public-entity liability. Id. at 1097. Although the Levin court allowed that
a physical defect in the property, such as a broken window, combined with the
foreseeable neglect or misconduct of third parties, may result in the imposition of liability
on the public entity because the combination renders the property unfit, the imposition of
liability requires, first and foremost, a physical defect in the property. Levin, 626 A.2d at
1098. The Levin court concluded that there was no missing plate, no broken bolt, no
defect in the bridge itself that caused or contributed to the cause of the accident, and,
therefore, the bridge was not a “dangerous condition” under the Act. Id.
Other cases brought under the Act clarify that a dangerous condition refers to a
physical condition or defect of the property. For example, in Cordy, the plaintiff alleged
that a railroad track that intersected a road perpendicularly and was slightly elevated
above the surface of the road was a “dangerous condition.” Cordy, 975 F. Supp. at 643.
The court found that this was not a dangerous condition as a matter of law, primarily
because the condition could not be rationally found to have created a substantial risk of
injury. Id. In Atalese v. Long Beach Twp, 837 A.2d 1115 (N.J. Super. Ct. App. Div.
2003), the plaintiff sued Long Beach Township after she fell and hit her head as a result
of an uneven roadway surface. Id. at 1116. The Department of Public Works had
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installed a sewer extension in the area and created a depression approximately three-
quarters of an inch in the surface of the roadway. Id. at 1116-17. The court concluded
that this defect could have created a “dangerous condition,” and, thus, summary judgment
was inappropriate. Id. at 1118. In Mendelsohn v. City of Ocean City, Civ. A. No. 02-
5390, 2004 U.S. Dist. LEXIS 20467 (D.N.J. 2004), plaintiffs sued Ocean City after an
accident in which Mrs. Mendelsohn tripped and fell on the Boardwalk as a result of a
protruding nail. Id. at *2. Plaintiffs claimed that a protruding nail amounted to a
dangerous condition. Id. at *8. The court held that “[a] nail protruding one quarter of an
inch is not within the category of defects encompassed by the liability provisions of the
Act” because such a “minor defect” did not present a “substantial risk of injury.” Id. at
*13, 16. Each of these cases illustrates that a “dangerous condition” involves a physical
defect.
In the instant case, there is no evidence that there was a physical defect in the
Boardwalk. The Boardwalk is the width it was designed to be, it exists in its intended
condition, and unlike a broken window or a protruding nail there is nothing inherently
defective about the width of the Boardwalk. Appellants claim that the Boardwalk is too
narrow. However, Appellants can establish that the Boardwalk is too narrow only if we
consider the activities permitted on it. Consideration of the activities permitted on the
Boardwalk to determine whether it constitutes a dangerous condition would require
applying the Burroughs approach which was specifically rejected by the New Jersey
Supreme Court in Levin.
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The issue of whether the width of the Boardwalk contributed to the accident, or
whether the accident was solely the result of the negligence of Finley and the four teenage
cyclists, is a question of fact. However, that issue is immaterial, because, as a matter of
law, the Boardwalk without any physical defect and existing as it was intended to be
cannot be a “dangerous condition” as defined in the Act and interpreted in the relevant
case law. See Levin, 133 N.J. at 1095. We find, accordingly, that the District Court did
not err in holding that Appellants failed to establish that the Boardwalk was a dangerous
condition.
Appellants also contend that the District Court erred when it failed to consider
their argument that Ocean City is not entitled to the plan-or-design immunity provided by
the Act. The plan-or-design immunity provides an affirmative defense as to which the
public bears the burden of proof. May v. Atlantic City Hilton, 128 F. Supp. 2d 195, 202
(D.N.J. 2000). If a basis for the public-entity’s liability is not established by another
provision of the Act, then there is no need for an affirmative defense. In this case,
Appellants have failed to show that Ocean City is potentially liable under N.J. Stat. Ann.
§ 59:4-2. Consequently, Appellants’ argument that Ocean City is not entitled to this
affirmative defense is irrelevant and their argument that the District Court erred by failing
to consider whether Ocean City is entitled to the affirmative defense is without merit.
Furthermore, the District Court correctly found that neither the actions nor
omissions of Ocean City were “palpably unreasonable” under N.J. Stat. Ann. § 59:4-2(b)
so as to give rise to liability. See Johnson v. Essex County, 538 A.2d 448, 456-57 (N.J.
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Super. Ct. Law Div. 1987) (explaining that “to be palpably unreasonable, [there] must be
action or inaction that is plainly and obviously without reason or reasonable basis,
capricious, arbitrary, or outrageous” (citation omitted). In addition, we find Ocean City is
entitled to discretionary immunity under N.J. Stat. Ann. § 59:2-3(a) & (b) because the use
and structure of the Boardwalk is clearly a “high-level policy determination” for this
resort town. Costa v. Josey, 401 A.2d 526 (N.J. 1979).
IV. Conclusion
We have considered all other arguments made by the parties on appeal, and
conclude that no further discussion is necessary. For the foregoing reasons, we will
affirm the District Court’s order granting summary judgment in favor of Ocean City.
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