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

D
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         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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                                        3
           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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