LINDA CLARK v. CITY OF WILDWOOD (L-0087-20, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-0110-21

LINDA CLARK,

Plaintiff-Appellant,

v.

CITY OF WILDWOOD,

Defendant-Respondent.

_________________________

Submitted May 9, 2022 – Decided August 9, 2022

Before Judges Accurso, Rose and Enright.

On appeal from the Superior Court of New Jersey, Law

Division, Cape May County, Docket No. L-0087-20.

Jarve Kaplan Granato Starr, LLC, attorneys for

appellant (Adam M. Starr and Edward M. Costello, III,

on the brief).

Birchmeier & Powell LLC, attorneys for respondent

(Erin R. Thompson, on the brief).

PER CURIAM

Plaintiff Linda Clark appeals from the August 31, 2021 order granting

summary judgment in favor of defendant City of Wildwood and dismissing with

prejudice plaintiff's complaint for failure to satisfy the requirements of the New

Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 14.4. We affirm.

I.

We view the evidence in the light most favorable to plaintiff. Polzo v.

Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 523 (1995)).

The Wildwood boardwalk is owned and maintained by defendant. It spans

approximately two miles and is comprised of wooden boards. There are two

concrete lanes in the middle of the boardwalk where tram cars operate.

On August 3, 2018, at around 9:30 p.m., plaintiff was walking on the

Wildwood boardwalk, and because she knew the boards were "sometimes . . .

uneven," she opted to walk on the concrete. When a tram car approached, she

transitioned from the concrete onto the wooden boards. As she did so, her right

shoe struck the edge of the boards, causing her to trip and fall. Plaintiff extended

her right arm to break the fall and landed on her right side.

A Wildwood police officer responded to the incident and photographed

the area. While waiting for paramedics, plaintiff observed "three or four" boards

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near the site of her fall "starting to bow down and . . . the edges were sticking

up." She failed to notice the elevated boards before she fell "because [she] was

trying to get out of the way of the tram[]car and wasn't looking down."

Based on the medical treatment plaintiff received after her fall, she was

diagnosed as suffering from a complete tear in her right rotator cuff. In October

2018, plaintiff underwent arthroscopic surgery to repair her rotator cuff. Some

five months after surgery, a physician's assistant noted plaintiff had "good

[range of] motion and strength" in her shoulder and expressed "[n]o complaints"

about her condition. Thus, she could resume her activities.

In March 2020, plaintiff filed a complaint against defendant, seeking

damages for her injuries. She alleged she experienced continued discomfort,

particularly when lifting objects over ten pounds or using her right arm in a

repetitive motion. She also averred she had trouble performing certain routine

tasks, such as operating a lawn mower, carrying her grandson, and writing for

extended periods of time.

Plaintiff provided a narrative report from a doctor detailing her diagnosis,

treatment and prognosis, which stated, in part:

[Plaintiff] . . . was able to lift the arm overhead

following [surgery]. However, the rotator cuff can lead

to long-term disability such as weakness, loss of range

of motion, and future re-tearing. Rotator cuff tears[,]

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especially massive tears[,] . . . have been linked with

the development of post[-]traumatic arthritis and cuff

tear arthropathy. [Plaintiff] may require further

treatments in the future which could include injections,

further physical therapy, and further surgeries . . . .

In May 2021, nearly three years after her injury, plaintiff's expert, Scott

D. Moore, inspected the accident site and prepared a forensic report. By then,

the wooden board at the site of plaintiff's fall had been replaced. Thus, Moore

only inspected the condition of nearby unreplaced boards. He determined the

height differential between those boards and the concrete tram path ranged from

9/16 to 5/8 inches. Further, he concluded: some boards "had buckled" and

instead of replacing the boards, defendant "ground [down] and reattached the

boards"; an "entire row of boards . . . [was] rotted and raised along the edge of

the abutting . . . concrete"; and paint seen "on boards at a nearby similar area

indicate[d] . . . the area had been inspected, painted over, and specifically not

repaired." Moore opined, "the height of the defect at the time of [plaintiff's]

incident[] was greater than 5/8 inch. Thus, . . . the defect was well over the

allowed vertical height differential between walking surfaces and qualified as a

tripping hazard."

During discovery, defendant confirmed its procedure for inspecting the

boardwalk:

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Each morning the Wildwood Sanitation Department

picks up trash on the . . . boardwalk and inspects the

boardwalk for any defects. The Wildwood Public

Works Department employs carpenters that ride and

inspect the boardwalk from 7:00 a.m. until 2:00 p.m.,

Monday through Friday. The carpenters are equipped

to make immediate repairs and/or maintenance of the

boardwalk. If police officers and/or Wildwood

employees observe any defective condition of the

boardwalk, they immediately report it.

Wildwood also certified it

ha[d] no personal, actual, and/or constructive notice of

any defective condition of the boardwalk that existed

on . . . August 3, 2018 [in the area of plaintiff's fall].

Wildwood maintains maintenance records for the

boardwalk and they do not reflect any defective

condition existing [in the area of plaintiff's fall].

During the deposition of defendant's boardwalk inspector, he testified that

throughout the summer, from Monday to Friday, two or three carpenters surveil

the Wildwood boardwalk to inspect and repair defects. The inspector also stated

when Sanitation Department workers empty trash cans, they report defects

noted, and police officers fill out a "kick sheet" to prompt an inspection if they

notice unsafe conditions on the boardwalk. The inspector testified he was not

aware of any kick sheet being sent to his office after plaintiff's accident.

Based on these undisputed facts, Judge James H. Pickering, Jr. granted

defendant's motion for summary judgment. Citing N.J.S.A. 59:4-2 and

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Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 124 (2001), the judge

stated that to demonstrate defendant was liable for plaintiff's injuries, she needed

to 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 which was

incurred,

(4) That either[:]

(a) a negligent or wrongful act or omission of an

employee of the public entity within the scope

of . . . 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, and

(5) the action the entity took to protect against the

condition or the failure to take such action was palpably

unreasonable[.]

Judge Pickering analyzed these elements based on the facts presented and

determined "no reasonable fact finder could conclude that the area of the

boardwalk where [p]laintiff tripped was a 'dangerous condition' within the

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meaning of N.J.S.A. 59:4-1." Further, the judge concluded defendant had no

"actual or constructive notice of the alleged dangerous condition within the

meaning of N.J.S.A. 59:4-3"; "[t]he actions or inactions of the City of Wildwood

were not palpably unreasonable"; and "[p]laintiff's injuries do not rise to the

threshold level of compensation that is set forth in [N.J.S.A.] 59:9-2(d)."

Regarding whether the boardwalk was in a dangerous condition on the

night of the incident, the judge specifically found

a photo was taken by the responding police officer on

the night of the incident, but the photograph does not

provide any insight as to the height differential between

the boards and the concrete where [p]laintiff tripped.

At the time [p]laintiff's expert went to examine the

boards, almost three years after the incident occurred,

all the boards in that area had been replaced. . . .

However, the expert reported . . . the actual height

differential between the boards and the concrete on the

night [p]laintiff fell was around 9/16 to 5/8 inches.

Finding "the raised board did not amount to a dangerous condition," as

defined under N.J.S.A. 59:4-1(a),1 the judge explained:

[m]inor dips and bumps on a boardwalk [are]

commonplace. Plaintiff herself admitted that she

understood the boardwalk to have minor bumps and

dips. . . . She clearly knew that the transition between

the concrete lane and the boards could also be

1

N.J.S.A. 59:4-1(a) 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."

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uneven. . . . [T]he uneven boards where [p]laintiff

tripped were in fact minor, trivial, or insignificant and

not a dangerous condition. This is the type of minor

defect that is not considered 'substantial' under the

statute.

Judge Pickering also addressed the element of notice, citing N.J.S.A. 59:4-

3, and determined plaintiff "provided no evidence . . . [d]efendant had actual

notice of what she alleges was a dangerous condition." Additionally, he found

defendant had no constructive notice of the dangerous condition, reasoning,

the boardwalk that [d]efendant inspects on a daily basis

is two-miles in length . . . . The court understands that

there are two concrete lanes, and that boards abut the

concrete lanes on both sides of each lane, meaning there

are four sides where the boards abut the concrete. That

is eight miles where the boards abut concrete. It is

unreasonable to think that every minor defect could be

identified by staff and remedied immediately.

....

Any defects that might occur to the boardwalk

[are] not 'predictably recurrent' as they occur in

different places throughout the two-mile strip. General

knowledge of any defects or that the boards could

become defective is not enough to impute constructive

notice on [d]efendant . . . . Plaintiff has not presented

evidence that the inspectors or staff were defective or

deficient in how they inspected the boards, or that it is

a common occurrence . . . they miss defects.

Turning to whether defendant's actions or inactions were "palpably

unreasonable," the judge quoted Charney v. City of Wildwood, 732 F.Supp. 2d

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448, 458 (D.N.J. 2010), stating, "[i]mperfections in boardwalk surfaces are

commonplace, and the failure of a public entity to remedy every small defect in

a boardwalk simply cannot be deemed palpably unreasonable." Mindful of this

standard, Judge Pickering concluded plaintiff had "not produced any evidence

that the actions of [d]efendant were palpably unreasonable."

Finally, in addressing plaintiff's injuries, the judge found they did "not

rise to the threshold level of compensation . . . set forth in N.J.S.A. 59:9-2(d)."2

He reasoned plaintiff failed to prove she

suffered any permanent disability from her surgery. . . .

[T]here is no medical documentation that [p]laintiff has

suffered any permanent range of motion problems.

Plaintiff's doctor has only stated that this type of injury

could lead to some weakness or problems with range of

motion. The statute, however, does not provide for

compensation on the possibility that future problems

could occur. It requires "permanent loss". . . .

Plaintiff's other complaints are that she can't

carry her grandson for an extended time, has trouble

2

N.J.S.A. 59:9-2(d) provides, in pertinent part:

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. . . .

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with groceries, and can't mow her own lawn. The court

does not find that these issues evidence substantial

permanent loss of a bodily function. The law does not

allow for recovery for pain and discomfort when an

individual's limitations are minor.

II.

On appeal, plaintiff reprises the arguments she raised before the trial

court, contending she presented sufficient evidence to show there was a

dangerous condition on the boardwalk; defendant had constructive notice of the

condition; defendant's failure to correct the defect was palpably unreasonable;

and the judge erred in finding her injuries "did not rise to the threshold level of

compensation set forth in N.J.S.A. 59:9-2." 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).

A motion for summary judgment will not be defeated by bare conclusions

lacking factual support, Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132

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(App. Div. 2011), self-serving statements, Heyert v. Taddese, 431 N.J. Super.

388, 413-14 (App. Div. 2013), or disputed facts "of an insubstantial nature,"

Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 4:46-2 (2022).

"Competent opposition requires competent evidential material beyond mere

speculation and fanciful arguments." Hoffman v. Asseenontv.Com, Inc., 404

N.J. Super. 415, 425-26 (App. Div. 2009) (internal quotation marks and citations

omitted).

It is well-settled "the 'guiding principle' of the [TCA] is 'that immunity

from tort liability is the general rule and liability is the exception.'" D.D. v.

Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013) (quoting Coyne v.

State Dep't of Transp., 182 N.J. 481, 488 (2005)). Accordingly, "a public entity

is 'immune from tort liability unless there is a specific statutory provision' that

makes it answerable for a negligent act or omission." Polzo, 209 N.J. at 65

(quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002)). "[T]he mere

happening of an accident on public property is insufficient to impose liability

upon a public entity." Wilson v. Jacobs, 334 N.J. Super. 640, 648 (App. Div.

2000).

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Guided by these principles, we discern no basis for disturbing the August

31 order, and affirm substantially for the reasons set forth in Judge Pickering's

thorough written opinion. We 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

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.

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As Judge Pickering rightly noted, it was plaintiff's burden to establish the

elements outlined under N.J.S.A. 59:4-2 to show defendant was liable for her

injuries. We agree with the judge she failed to meet this burden.

The TCA 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 v. Lindedahl, 100

N.J. 485, 493 (1985). Thus, even if the risk is foreseeable, it still may not rise

to the threshold of dangerousness required to satisfy this requirement.

Based on our jurisprudence, and viewing the facts most favorably to

plaintiff, we conclude, as did Judge Pickering, that no reasonable jury could find

the alleged slight change in elevation on a single board in a long stretch of

boardwalk gave rise to a "substantial risk of injury." See, e.g., Wilson, 334 N.J.

Super. at 648-49 (upholding summary judgment for municipality where there

was a noticeable gap between sidewalk pavers because this did not constitute a

dangerous condition).

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Even if this were not the case, we also agree with Judge Pickering's

determination plaintiff failed to show defendant's action in protecting against a

dangerous condition was "palpably unreasonable."

"Although 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 (citations omitted). 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).

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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 the county's failure to locate and fix the depression could not be

considered "palpably unreasonable." Id. at 77-78. See also 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, aside from the fact plaintiff presented no evidence defendant had

actual or constructive notice of the condition of the board at issue prior to her

fall, she failed to raise a genuine issue of material fact as to whether defendant's

action or inaction was "palpably unreasonable." As we have discussed, it was

unrefuted the boardwalk is patrolled five days a week by certain employees who

are tasked with looking for defects, while other employees monitor the condition

of the boardwalk and report defects to the boardwalk inspector so they can be

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repaired. Also, nothing in the record suggests defendant should have known to

check the area where plaintiff fell, as plaintiff presented no proof of similar

accidents in the vicinity. Thus, we are satisfied Judge Pickering correctly found

defendant's inspection scheme was not palpably unreasonable.

Finally, while plaintiff failed to establish liability under the TCA, for the

sake of completeness, we also observe her proofs did not satisfy the verbal

threshold under N.J.S.A. 59:9-2(d); see also Nieves v. Adolf, 241 N.J. 567, 580

(2020). To vault the threshold, assuming a plaintiff can establish liability

against a public entity, the TCA requires a plaintiff to establish: "(1) an

objective permanent injury, and (2) a permanent loss of a bodily function that is

substantial." Kahrar, 171 N.J. at 12 (quoting Gilhooley v. Cnty. of Union, 164

N.J 533, 541 (2000)).

Here, although the narrative report submitted by plaintiff's doctor noted

plaintiff's type of injury "can lead to long-term disability such as weakness, loss

of range of motion, and future re-tearing," we agree with Judge Pickering that

plaintiff failed to prove she "suffered any permanent disability from her surgery"

or "suffered any permanent range of motion problems." As the judge correctly

noted, "[t]emporary injuries, no matter how painful and debilitating, are not

recoverable" and "a plaintiff may not recover under the [TCA] for mere

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'subjective feelings of discomfort.'" Brooks v. Odom, 150 N.J. 395, 403 (1997)

(quoting Ayers v. Twp. of Jackson, 106 N.J. 557, 571 (1987)). Thus, plaintiff

failed to vault the verbal threshold to sustain a claim under the TCA.

In sum, we perceive no basis to disturb Judge Pickering's August 31 order.

To the extent we have not addressed plaintiff's remaining arguments, we are

satisfied they lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

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