Jessica Feeney v. City of Atlantic City

• Court: New Jersey Superior Court Appellate Division
• Decided: March 19, 2025
• Docket: A-0762-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0762-23

JESSICA FEENEY and PATRICK FEENEY,

Plaintiffs-Appellants,

v.

CITY OF ATLANTIC CITY,

Defendant-Respondent. __________________________

Submitted January 14, 2025 – Decided March 19, 2025

Before Judges Gilson and Augostini.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0288-21.

D'Arcy Johnson Day, attorneys for appellants (Michael A. Gibson, on the briefs).

George N. Polis, attorney for respondent.

PER CURIAM

Plaintiff Jessica Feeney tripped, fell, and injured herself while walking on

the boardwalk in the City of Atlantic City (the City). She and her husband, Patrick Feeney (collectively, plaintiffs), sued the City alleging that Jessica

tripped on uneven boards and the City was negligent in causing the dangerous

condition and in not timely repairing the condition.

Plaintiffs appeal from orders granting summary judgment to the City and

denying their motion for reconsideration. We affirm because plaintiffs

presented no evidence that the City caused the boards to become uneven nor was

there evidence that the City had actual or constructive notice of the uneven

boards that caused Jessica to fall. Therefore, the City was entitled to summary

judgment under the Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3.

I.

We discern the facts from the summary judgment record, viewing them in

the light most favorable to plaintiffs, the non-moving party. See Memudu v.

Gonzalez, 475 N.J. Super. 15, 18-19 (App. Div. 2023).

On August 30, 2019, plaintiffs were walking on the boardwalk in the City

near the Showboat Hotel. Jessica testified that "there was a raised board," her

"right foot rolled on an uneven board[,] and [her] leg buckled." Jessica then

tripped, fell, and injured herself. Jessica explained that she had not noticed the

uneven boards before she fell.

A-0762-23 2 No photographs of the uneven boards were taken on the day of Jessica's

fall. Two days after the fall, Patrick went back to the area and took several

photographs. Those photographs showed that several boards running along an

adjacent ridge board were lower than the ridge board, and that the displacement

of one of the boards was approximately one inch.

In January 2021, plaintiffs sued the City, alleging that the City was

negligent in causing the dangerous condition on the boardwalk and in not timely

repairing the uneven boards. To support their claims, plaintiffs retained Arthur

Chew, a professional engineer, who prepared a liability expert report. Chew

reviewed the photographs taken by Patrick and opined that they showed a

"hazardous condition" because "deck boards of the fifth ribbon next to the ridge

board and the fourth ribbon have dropped by more than an inch at the incident

location."

Chew also opined that the City's "police vehicles and public works

vehicles that ride on the boardwalk place" high stresses on the boardwalk and

those "high[] stresses may cause joists that are experiencing rot to break." Chew

concluded: "Within a reasonable degree of engineering certainty, the elevated

board was caused by repetitive use of heavy vehicles in the same location which

A-0762-23 3 created a dangerous and hazardous condition which posed an unreasonable and

foreseeable risk of tripping and falling."

Chew also opined that the City was aware that vehicles traveling on or

across the boardwalk could cause boards to become uneven and the City "failed

to make timely repairs to the boardwalk in the area of the incident despite having

knowledge of the raised boards in the area of the trip [and] fall."

In reaching his opinion about the cause of the uneven boards, Chew relied

on testimony from Dennis McReynolds, the City's boardwalk inspector, and

George Tittermary, the City's superintendent of beach and boardwalk.

McReynolds testified that he regularly inspected the City's boardwalks for

tripping hazards. He explained that he considered uneven boards of more than

one quarter of an inch to be a tripping hazard. In that regard, he stated: "I use

my own judgment, but usually if it's [a] quarter of an inch difference, then it's

something I take care of." McReynolds also explained that boards can become

uneven for numerous different reasons, including weather conditions, storms,

shifting of the boardwalk foundation, sand being pushed up against the

underside of the boardwalk, and vehicles going across the boardwalk.

A-0762-23 4 Tittermary testified that displacements of more than a quarter of an inch

between boards on the boardwalk were "something that needs to be looked at."

He also stated that "any vehicle on the boardwalk does damage."

Following the close of discovery, the City moved for summary judgment,

arguing that it was shielded from liability under the Act. The City asserted that

it had no actual or constructive notice of the uneven boards where Jessica fell.

The City also argued that its conduct in inspecting the boardwalk, which is

approximately four and a half miles long, was not palpably unreasonable.

Finally, the City contended that the uneven boards or raised boards were not a

dangerous condition as defined by the Act.

Plaintiffs opposed the motion, contending that there were material issues

of disputed fact concerning whether the City had caused the uneven boards.

Plaintiffs also argued that the City had constructive knowledge of the dangerous

condition because the City knew vehicles regularly drove on and caused damage

to the boardwalk.

On June 23, 2023, the trial court heard arguments on the summary

judgment motion. About one month later, on July 24, 2024, the court entered

an order granting summary judgment in favor of the City and dismissed

A-0762-23 5 plaintiffs' complaint. The court explained the reasons for its ruling on the

record.

The court found that plaintiffs had presented sufficient evidence from

which a jury could find that the uneven condition of the boards where Jessica

fell constituted a dangerous condition. The trial court also found, however, that

plaintiffs presented no evidence that the City caused the dangerous condition.

In making that ruling, the trial court considered but rejected the plaintiffs'

liability expert's opinion as speculative. The court reasoned that although

plaintiffs' liability expert opined that the City caused the boards to become

uneven, that opinion was not supported by facts. In that regard, the court pointed

out that knowing that vehicles might cause the boardwalk to become uneven in

certain places did not establish that the boards where Jessica tripped became

uneven because a vehicle drove on those boards.

The trial court also rejected plaintiffs' liability expert's opinion that the

City should have discovered and repaired the uneven boards. The trial court

pointed out that there were no facts establishing when the boards became uneven

and, therefore, there were no facts from which a jury could conclude that the

City failed to repair the dangerous condition in a reasonable period of time.

A-0762-23 6 Finally, the trial court ruled that even if plaintiffs had demonstrated that

the City had actual or constructive notice of the dangerous condition, the City

had not acted palpably unreasonably. In that regard, the trial court pointed out

that the City had an inspector who regularly inspected the boardwalk , and

plaintiffs had presented no evidence that the City should have discover ed the

uneven boards where Jessica fell.

Plaintiffs moved for reconsideration, but the trial court denied that motion

in an order entered on October 20, 2023. In support of that order, the trial court

issued a written opinion detailing its reasons for rejecting reconsideration.

II.

Plaintiffs now appeal from the order granting summary judgment and the

order denying their motion for reconsideration. They make two arguments.

First, they contend that the trial court erred in granting summary judgment

because there were material disputed facts concerning whether the City created

the dangerous condition that caused Jessica's fall. Second, they contend that

their expert's opinions were not net opinions and that those opinions were

supported by factual evidence in the record. The record and law do not support

either of plaintiffs' arguments. We, therefore, reject them and affirm.

A-0762-23 7 Appellate courts review a grant of summary judgment de novo, "applying

the same standard used by the trial court." Samolyk v. Berthe, 251 N.J. 73, 78

(2022). That standard requires us to "determine whether '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

challenged and that the moving party is entitled to a judgment or order as a

matter of law.'" Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021)

(quoting R. 4:46-2(c)). "Summary judgment should be granted . . . 'against a

party who fails to make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that party will bear the

burden of proof at trial.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020)

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). We do not defer

to the trial court's legal analysis or statutory interpretation. RSI Bank v.

Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018); Perez v. Zagami, LLC,

218 N.J. 202, 209 (2014).

A. The Act.

The Act waives the State's sovereign immunity but does so with certain

requirements and limitations. See N.J.S.A. 59:1-2 (explaining that "public

entities shall only be liable for their negligence within the limitations of" the

A-0762-23 8 Act); see also Nieves v. Off. of the Pub. Def., 241 N.J. 567, 574-75 (2020)

(explaining that "N.J.S.A. 59:1-2 declares that 'public entities shall only be

liable for their negligence within the limitations of this act and in accordance

with the fair and uniform principles established herein'" (quoting N.J.S.A. 59:1-

2)). "Generally, immunity for public entities is the rule and liability is the

exception." Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999).

The City is a public entity that is liable for its negligence only to the extent

permitted by the Act. N.J.S.A. 59:1-2, 59:1-3, 59:2-1(a); see Ogborne v. Mercer

Cemetery Corp., 197 N.J. 448, 452-53 (2009) (applying the Act to claims

brought against the City of Trenton). The requirements for holding a public

entity liable for the dangerous conditions on public property are set forth in

N.J.S.A. 59:4-2. Under that provision, a plaintiff must demonstrate that: (1) a

dangerous condition existed on the property at the time of the injury; (2) the

dangerous condition proximately caused the injury; (3) the dangerous condition

created a foreseeable risk of the kind of injury that occurred; (4) the public entity

had actual or constructive notice of the condition a sufficient time prior to the

injury to correct the dangerous condition; and (5) the action or inaction taken by

the public entity to protect against the dangerous condition was palpably

unreasonable. See N.J.S.A. 59:4-2; Polzo v. Cnty. of Essex (Polzo II), 209 N.J.

A-0762-23 9 51, 65-66 (2012) (first quoting N.J.S.A. 59:4-2; then citing Vincitore v. N.J.

Sports & Exposition Auth., 169 N.J. 119, 124-25 (2001)); Muhammad v. N.J.

Transit, 176 N.J. 185, 194 (2003) (quoting N.J.S.A. 59:4-2).

B. Whether the City Had Actual or Constructive Knowledge of the Dangerous Condition.

Plaintiffs have submitted no evidence that the City had actual knowledge

of the uneven boards where Jessica fell. Instead, plaintiffs' theory is that the

City (1) knew that vehicles drove on the boardwalk, (2) knew that vehicles might

cause boards to become uneven, and (3) that, "[d]efendant's 'vehicles going

across [the boardwalk]'" likely created the uneven boards. Those general

contentions, however, do not present evidence from which a jury could find that

the City had actual or constructive notice of the condition where Jessica fell.

Knowing that a boardwalk stretching more than four miles can be

damaged at various times from various causes, including vehicles driving on or

across the boardwalk, does not constitute actual or constructive knowledge of

the specific dangerous condition that caused Jessica to fall.

So, plaintiffs' real theory is that the City should have inspected and found

the uneven boards where Jessica fell. The problem with that theory, however,

is that plaintiffs have no evidence as to how long the boards were uneven.

Plaintiffs' liability expert never identified when the boards became uneven. He

A-0762-23 10 merely speculated that the City should have discovered the uneven boards if they

conducted regular inspections. Without knowing when the boards became

uneven, however, a jury would have no basis to find that the City had " a

sufficient time prior to the injury to have taken measures to protect against the

dangerous condition." See N.J.S.A. 59:4-2(b); see also Est. of Massi v. Barr,

479 N.J. Super. 144, 158-59 (App. Div 2024) (explaining what is necessary to

establish actual or constructive notice to a public entity).

C. Not Palpably Unreasonable.

In defining the limits of a public entity's responsibility for a dangerous

condition on public property, the Act also provides:

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.]

We agree with the trial court that the provision concerning palpably

unreasonable acts or omissions provides an alternative ground for affirming the

summary judgment order. Viewing the facts most favorably to plaintiffs, their

best argument is that the City should have discovered the uneven boards where

Jessica fell by conducting more regular inspections. There is no dispute that the

A-0762-23 11 City did inspect for dangerous conditions on the boardwalk. Critically, however,

there is no evidence from which a jury could find that the City's failure to

conduct more inspections was palpably unreasonable and that liability should be

imposed on the City under the Act. See Massi, 479 N.J. Super. at 159 (defining

palpably unreasonable as "'behavior that is patently unacceptable under any

given circumstance'" (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985))).

D. The Net Opinions Offered by Plaintiffs' Liability Expert.

N.J.R.E. 703 addresses the foundation for expert testimony. Expert

opinions must "be grounded in '"facts or data derived from (1) the expert's

personal observations, or (2) evidence admitted at the trial, or (3) data relied

upon by the expert which is not necessarily admissible in evidence but which is

the type of data normally relied upon by experts."'" Townsend v. Pierre, 221

N.J. 36, 53 (2015) (quoting Polzo v. Cnty. of Essex (Polzo I), 196 N.J. 569, 583

(2008)). "The net opinion rule is a 'corollary of [N.J.R.E. 703]'" and it "'forbids

the admission into evidence of an expert's conclusions that are not supported by

factual evidence or other data.'" Id. at 53-54 (alteration in original) (quoting

Polzo I, 196 N.J. at 583).

Accordingly, an expert is required to "'give the why and wherefore' that

supports the opinion, 'rather than a mere conclusion.'" Crispino v. Twp. of

A-0762-23 12 Sparta, 243 N.J. 234, 257 (2020) (quoting Townsend, 221 N.J. at 54). The net

opinion rule directs "that experts 'be able to identify the factual bases for their

conclusions, explain their methodology, and demonstrate that both the factual

bases and the methodology are reliable.'" Townsend, 221 N.J. at 55 (quoting

Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). In short, "[t]he net

opinion rule is a 'prohibition against speculative testimony.'" Ehrlich v. Sorokin,

451 N.J. Super. 119, 134 (App. Div. 2017) (quoting Harte v. Hand, 433 N.J.

Super. 457, 465 (App. Div. 2013)).

As we have already summarized, plaintiffs rely on the opinions of their

liability expert and contend that there are disputed facts concerning whether the

City had constructive knowledge of the uneven boards where Jessica fell. As

we have also summarized, the liability expert's primary opinions were net

opinions because they were not based on evidence in the record.

Chew opined that the City "had knowledge that their operations in which

vehicles driv[ing] on the boardwalk create potential trip hazards on the

boardwalk and failed to have a maintenance and replacement program for the

boardwalk to eliminate the hazard which ultimately led to the trip and fall of

Jessica Feeney." That opinion is not supported by factual evidence. Instead,

Chew was seeking to extrapolate from the general knowledge that vehicles

A-0762-23 13 driving on the boardwalk can cause damage to boards, that a vehicle or vehicles

caused the damage at the spot on the boardwalk where Jessica fell. Chew cites

to, and the record contains, no facts establishing that the one-inch displacement

in the boards where Jessica fell was caused by a vehicle or vehicles.

Chew also cites no facts supporting his opinion that the "City failed to

make timely repairs to the boardwalk in the area of the incident despite having

knowledge of [the] raised boards in the area of the trip [and] fall." Like his other

opinion, Chew is extrapolating from general testimony—that is, that vehicles

driving on the boardwalk can cause damage—to a specific conclusion that the

City knew of the uneven boards where Jessica fell.

III.

In summary, after completing discovery, plaintiffs had no evidence that

the City had actual or constructive notice of the uneven boards where Jessica

fell. The record also establishes that plaintiffs had no evidence that established

when the boards became uneven and, therefore, there was no evidence from

which a jury could conclude that the City failed to timely fix the uneven boards

prior to Jessica's fall. Finally, plaintiffs have no evidence to establish that the

actions taken or the omission of actions by the City were palpably unreasonable.

A-0762-23 14 For all these reasons, the City was entitled to summary judgment dismissing

plaintiffs' claims in accordance with the Act.

Affirmed.

A-0762-23 15