DORIAN DUMAS VS. CITY OF ATLANTIC CITY (L-1874-16, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2024-19T3
DORIAN DUMAS and DEBORAH
DUMAS, husband and wife,
Plaintiffs-Appellants,
v.
CITY OF ATLANTIC CITY,
Defendant-Respondent.
______________________________
Argued December 8, 2020 – Decided December 24, 2020
Before Judges Yannotti and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1874-16.
R.C. Westmoreland argued the cause for appellants
(Westmoreland Vesper Quattrone & Beers, PA,
attorneys; R.C. Westmoreland, on the briefs).
Erin R. Thompson argued the cause for respondent
(Birchmeier & Powell, LLC, attorneys; Erin R.
Thompson, on the brief).
PER CURIAM
Plaintiff Dorian Dumas appeals from the Law Division's December 9,
2019 order, which granted defendant City of Atlantic City's motion for summary
judgment and dismissed plaintiff's complaint for failure to satisfy the
requirements of the New Jersey Tort Claims Act. N.J.S.A. 59:1-1 to -14.4 (the
Act).1 We affirm.
Because this matter comes to us from the trial court's grant of summary
judgment in favor of defendant, the moving party, we view the evidence in the
light most favorable to plaintiff. Polzo v. Cnty of Essex, 209 N.J. 53, 56 n.1
(2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)).
On August 25, 2014, plaintiff was walking on the Atlantic City boardwalk
when his right foot got caught on a single raised wood board, which caused
plaintiff to stumble. Plaintiff never fell to the ground, but asserted that he
twisted his ankle, strained his hip, and suffered other injuries when he stumbled.
The next day, plaintiff took several photographs of the raised board. However,
he never reported the incident to anyone affiliated with defendant.
Four years later, plaintiff's expert inspected the area and opined that a
raised screw, with a depth of about three-quarters to one inch, on the boardwalk
1
Plaintiff's wife, Deborah Dumas, also claimed loss of consortium as a result
of her husband's injuries.
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caused the board to rise and plaintiff to stumble. The expert opined that the
defect had existed for some time prior to the August 25, 2014 incident.
Defendant employs a boardwalk inspector. At his deposition, the
inspector testified he inspected the boardwalk five days a week, Monday through
Friday. A supervisor also patrolled the boardwalk to look for defects , and
defendant had carpenters who walked the boardwalk each day to replace boards
when needed. In addition, trash collectors looked for defects while performing
their assigned duties. Some of the patrols are conducted in a vehicle, while
others are performed on foot.
Based upon these undisputed facts, Judge Christine Smith granted
defendant's motion for summary judgment. Judge Smith found that the alleged
defect was not a dangerous condition under the Act because the one loose board
was not "a condition of property that create[d] 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.S.A. 59:4-1(a). As the judge explained in
her thoughtful written opinion:
Here, both parties concede that the alleged
condition existed as of the date of the injury in August
2014. However, this court concludes that no reasonable
jury could find a three-fourths (3/4) inch to one (1) inch
rise in a single board gives rise to a substantial risk of
injury. Plaintiff presented no evidence that the
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condition was created by any action on the part of the
City of Atlantic City or any of its employees.
Additionally, the mere existence of a minor elevation
in a single board is not enough to create a substantial
risk of injury. Therefore, no reasonable juror could find
that the elevated board created a dangerous condition
that posed a substantial risk of injury.
Judge Smith further found that even if the raised board met the definition
of a dangerous condition, defendant's actions or omissions regarding the
condition were not palpably unreasonable. The judge stated:
Even if the elevation did create a dangerous
condition, plaintiff would still need to establish that the
City of Atlantic City['s] actions and/or omissions were
palpably unreasonable. Kolitch [v. Lindedahl, 100 N.J.
485, 492-93 (1985).] Here, the City of Atlantic City's
employees inspect the boardwalk every day. In
addition, the superintendent, [the] supervisor of the
City Inspector[,] and other individuals patrol the
boardwalk, some by vehicle, looking for issues Monday
through Friday. Moreover, carpenters are hired by the
City to engage in daily repairs and replacements of the
boards. Plaintiff presented no evidence of past
accidents or incidents occurring in the alleged area of
plaintiff's stumble, which would illustrate that
defendant should have known to inspect that specific
area more frequently. Additionally, the fact that
defendant used a vehicle to patrol for defects does not
illustrate palpably unreasonable conduct as other
individuals were also searching for defects on foot. As
such, this court finds that defendant's inspection of the
boardwalk was not palpably unreasonable and
therefore, summary judgment is appropriate.
This appeal followed.
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On appeal, plaintiff argues that he presented sufficient evidence to show
there was a dangerous condition on the boardwalk, defendant had actual or
constructive notice of the condition, and defendant's failure to correct the defect
was palpably unreasonable. We disagree.
In reviewing a grant of summary judgment, we apply the same standard
under Rule 4:46-2(c) that governs the trial court. Steinberg v. Sahara Sam's
Oasis, LLC, 226 N.J. 344, 349-50 (2016). We consider the factual record, and
reasonable inferences that can be drawn from those facts, "in the light most
favorable to the non-moving party" to decide whether the moving party was
entitled to judgment as a matter of law. IE Test, LLC v. Carroll, 226 N.J. 166,
184 (2016) (citing Brill, 142 N.J. at 540).
In light of this standard of review, we discern no basis for disturbing Judge
Smith's determination. We therefore affirm substantially for the reasons set
forth in her written opinion and add the following comments.
N.J.S.A. 59:4-2 prescribes when a public entity may be liable for a
dangerous condition on public property:
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
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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
[or her] employment created the dangerous condition;
or
b. a public entity had actual or constructive
notice of the dangerous condition under [N.J.S.A.]
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.S.A. 59:4-2.]
Thus, liability only attaches if the plaintiff can show
[1] that the property was in a dangerous condition at the
time of the injury; [2] that the injury was proximately
caused by the dangerous condition; [3] that the
dangerous condition created a reasonably foreseeable
risk of the kind of injury that was incurred; and [4] that
a public employee created the dangerous condition or
that the public entity had notice in time to protect
against the condition itself.
[Kolitch, 100 N.J. at 492.]
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In addition, "there can be no recovery unless the action or inaction on the part
of the public entity in protecting against the condition was 'palpably
unreasonable.'" Id. at 492-93.
As noted above, 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.S.A. 59:4-1(a) (emphasis added). Our Supreme Court has defined
"substantial risk" as "one that is not minor, trivial or insignificant." Kolitch,
100 N.J. at 493. Thus, even if the risk is foreseeable, it still may not rise to the
threshold of dangerousness required to satisfy this requirement.
Applying this standard, we conclude, as did Judge Smith, that no
reasonable jury could find the three-quarters to one inch raised screw gave rise
to a substantial risk of injury. We have previously examined what constitutes a
"substantial risk of injury" in the context of pedestrian hazards on public
sidewalks and roadways. See, e.g., Atalese v. Long Beach Twp., 365 N.J. Super.
1, 3-6 (App. Div. 2003) (finding a substantial risk of injury where "a significant
rectangular portion of the pavement in the bike lane [was] depressed for a
distance of approximately one block"); Wilson v. Jacobs, 334 N.J. Super. 640,
648-49 (App. Div. 2000) (upholding summary judgment for municipality where
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there was a noticeable gap between sidewalk pavers because this did not
constitute a dangerous condition).
Here, the alleged defect was a raised screw that enabled a single board on
the boardwalk to rise three-quarters to one inch when someone stepped on the
end of it. There was no evidence that the condition of the board was caused by
any action on the part of defendant or any of its employees. The mere existence
of a slight elevation of this kind is not sufficient, in itself, to support a finding
that there is a substantial risk of injury. Under these circumstances, viewed most
favorably to plaintiff, we conclude no reasonable jury could find such a slight
change in elevation on a single board in a long stretch of boardwalk creates a
substantial risk of injury to the public.
Even if this were not the case, we also agree with Judge Smith's
determination that plaintiff failed to show that "the action or inaction on the part
of the public entity in protecting against the condition was 'palpably
unreasonable.'" Kolitch, 100 N.J. at 492-93. First, it should be noted that
"[a]lthough ordinarily the question of whether a public entity acted in a palpably
unreasonable manner is a matter for the jury, in appropriate circumstances, the
issue is ripe for a court to decide on summary judgment." Polzo, 209 N.J. at 75
n.12.
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The "palpably unreasonable" standard is beyond ordinary negligence.
"[T]he term implies behavior that is patently unacceptable under any given
circumstance." Kolitch, 100 N.J. at 493. Indeed, "for a public entity to have
acted or failed to act in a manner that is palpably unreasonable, 'it must be
manifest and obvious that no prudent person would approve of its course of
action or inaction.'" Ibid. (quoting Polyard v. Terry, 148 N.J. Super. 202, 216
(Law Div. 1977), rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978),
aff'd o.b. 79 N.J. 547 (1979)). We have stated that "[t]he test requires
consideration of what the [public entity] did in the face of all of the attendant
circumstances, including, of course, the extent of the known danger and what it
considered to be the need for urgency." Schwartz v. Jordan, 337 N.J. Super.
550, 555 (App. Div. 2001).
Our courts have frequently addressed this issue. In Polzo, the Court
looked at a complaint in the death of a bicyclist who had fallen on "a circular
depression" on the shoulder of a county road. 209 N.J. at 56-57. Noting that
the county was responsible for maintaining an extensive network of roads,
including the shoulder where the accident occurred, and that there were no prior
complaints about injuries at the site, as well as the fact that the shoulder was
generally intended to be used for vehicular travel, the Court concluded that the
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county's failure to locate and fix the depression could not be considered
"palpably unreasonable." Id. at 77-78. See also Garrison v. Twp. of
Middletown, 154 N.J. 282, 311-12 (1998) (concluding that "[i]n view of the
Township's responsibilities for maintaining significant areas of public
property," its failure to find and repair a defect in a parking lot was not "palpably
unreasonable"); Carroll v. N.J. Transit, 366 N.J. Super. 380, 387-89 (App. Div.
2004) (finding no "palpably unreasonable" conduct when plaintiff did not
present proof of inspection standards and there was no history of similar
complaints that would suggest a need for more frequent inspections of the area).
Here, plaintiff presented no evidence that defendant had actual or
constructive notice of the condition of the board at any time prior to the August
25, 2014 incident. In addition, plaintiff has failed to raise a genuine issue of
material fact as to whether defendant's action or inaction was "palpably
unreasonable." Defendant's boardwalk inspector testified that the boardwalk is
patrolled five days a week by employees on foot and in vehicles to look for
defects. Other personnel are also assigned to monitor the condition of the
boardwalk and fix any defects that are discovered. Nothing in the record
suggests defendant should have known to check the area where plaintiff
stumbled, as plaintiff presented no proof of similar accidents in the vicinity.
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Thus, we conclude that defendant's inspection scheme was not palpably
unreasonable.
In sum, we are satisfied that Judge Smith correctly determined that no
reasonable jury could find that the alleged defect was a "dangerous condition"
in that it posed a substantial risk of injury to the pedestrian public. And even if
it did, the judge correctly concluded that no reasonable jury could find
defendant's response or lack thereof to be palpably unreasonable.
All other arguments raised in this appeal, to the extent we have not
addressed them, are without sufficient merit to be discussed. R. 2:11-3(e)(1)(E).
Affirmed.
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