NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2466-20
MICHELLE LITTLE,
Plaintiff-Respondent, v.
CITY OF ATLANTIC CITY,
Defendant-Appellant. ________________________
Submitted October 7, 2021 – Decided October 20, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0723-18.
Daniel J. Gallagher, attorney for appellant.
Westmoreland Vesper & Quattrone, PA, attorneys for respondent (R.C. Westmoreland, on the brief).
PER CURIAM This case is before us on defendant City of Atlantic City's interlocutory
appeal from a February 8, 2021 order denying its motion for summary judgment
against plaintiff Michelle Little. Defendant argues that the motion judge erred
in denying its motion for summary judgment and rejecting defendant's argument
that plaintiff used city property without due care as a matter of law. We affirm,
substantially for the reasons set forth in Judge James P. Savio's well-reasoned
opinion. We add only the following brief remarks.
We discern the following facts from the record. On the night of April 9,
2016, plaintiff and her cousin went to Atlantic City to celebrate her birthday.
They arrived shortly before 11:30 p.m. and plaintiff's cousin parked their car
along Pacific Avenue. The weather was clear, and it had not rained prior to their
arrival.
Plaintiff and her cousin walked along Pacific Avenue on their way to the
Claridge Hotel. At the intersection of Pacific and Ohio Avenue, plaintiff crossed
Pacific Avenue before her cousin. Plaintiff did not use the crosswalk at the
intersection, instead crossing about seven to ten feet away from the crosswalk.
Plaintiff saw that the crosswalk, was unobstructed at the time she crossed. As
she crossed the street, she stepped into a pothole with her left foot and fell
forward and hit her head on the curb. The pothole was approximately five inches
A-2466-20 2 deep, four to six inches wide, about three or four feet long, and located along
the edge of the concrete gutter between the cement gutter and the asphalt of
Pacific Ave. She did not see the pothole prior to falling. Plaintiff tried to get
up and "get loose" from the pothole, but fell and hit her head once more.
Plaintiff struggled to free herself from the pothole. A nearby off-duty police
officer got out of her marked police car and stopped oncoming traffic for
plaintiff's safety. On her third attempt to free herself, plaintiff was able to "break
loose and get on to the curb."
Once on the curb, the police officer recommended plaintiff go to the
hospital. Plaintiff went to the nearby AtlantiCare Regional Medical Center for
evaluation and left the hospital around 1:00-1:30 a.m. The following day,
plaintiff drove home to Maryland. She sought follow-up medical care at Fort
Washington Hospital and was diagnosed with a fractured nose and a fractured
left cheek bone.
On April 5, 2018, plaintiff filed a complaint against defendant alleging:
1) negligence of defendant city; and 2) negligence of defendants-responsible
party for creation, inspection, and maintenance of the "subject trip hazard
hole[.]" Defendant filed an answer on May 31, 2018.
A-2466-20 3 On May 24, 2019, the court granted plaintiff's motion to extend discovery.
On October 25, 2019, the court granted an order to include the Casino
Redevelopment Agency and Pierson Construction, who performed road repairs
several years earlier as defendants.
On April 9, 2020, defendant filed for summary judgment, arguing plaintiff
had not provided sufficient proof of a dangerous condition under the New Jersey
Tort Claims Act (TCA). N.J.S.A. 59:4-1 to -10. The judge denied one motion
on July 17, 2020, and provided a statement of reasons in a written opinion on
July 22, 2020.
On January 7, 2021, defendant filed a second motion for summary
judgment. On February 8, 2021, the court denied the second motion in an oral
opinion.
Judge Savio considered several factors in analyzing the "dangerous
condition" element of premises liability under N.J.S.A. 59:4-1(a). First, he
noted the pothole was located only seven to eight feet away from the crosswalk,
as opposed to being farther away towards the middle of the block. He further
noted the pothole's were a significant size:
[the pothole] looks to me to be about four to six inches wide and it's running along the concrete a distance of probably three or four feet. This is not a two inch declivity . . . on a side street or a little pothole on Pacific
A-2466-20 4 Avenue. To me, at least, looking at the photographs, this is a significant area of deformity.
Second, Judge Savio emphasized the pothole's highly trafficked and
commercial locale:
[i]t's a commercial district. Whether the door to the casino parking lot is there, it's a commercial district. Bally is there, Claridge is there. The hospital is nearby. I think the library is a couple blocks away from there, but it's still in the general area. There are restaurants in that area. There are gold, silver shops in that area. This is not a . . . residential side street. This is a major street, and if we look at the streets that run north to south, Ohio Avenue is one of the major streets in Atlantic City, as well, that run north to south.
Judge Savio ultimately concluded, "giving the plaintiff the benefit of all
the facts and all of the inferences that flow from the facts," that a person crossing
Pacific Avenue could foreseeably do so outside of the crosswalk; and that a
reasonable jury could find plaintiff used the property with due care. As a result,
the question of whether plaintiff used the property with due care should be left
to a jury and he denied defendant's motion for summary judgment.
On February 22, 2021, defendant unsuccessfully moved for
reconsideration. Defendant filed a motion for leave to file an interlocutory
appeal, which the Appellate Division granted on May 6, 2021.
A-2466-20 5 We review a motion judge's grant or denial of summary judgment de novo,
applying the same standard as the motion judge. Conley v. Guerrero, 228 N.J.
339, 346 (2017). The court will accept the non-movant's version of the facts
and draw all inferences in favor of plaintiff. See Brill v. Guardian Life Ins. Co.
of America, 142 N.J. 520, 523 (1995). Summary judgment must be granted "if
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." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).
Defendant argues plaintiff "has presented no substantial or material facts
which could demonstrate she used the property with due care." The TCA
provides that, for a public entity to incur liability from a condition of public
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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-2466-20
MICHELLE LITTLE,
Plaintiff-Respondent, v.
CITY OF ATLANTIC CITY,
Defendant-Appellant. ________________________
Submitted October 7, 2021 – Decided October 20, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0723-18.
Daniel J. Gallagher, attorney for appellant.
Westmoreland Vesper & Quattrone, PA, attorneys for respondent (R.C. Westmoreland, on the brief).
PER CURIAM This case is before us on defendant City of Atlantic City's interlocutory
appeal from a February 8, 2021 order denying its motion for summary judgment
against plaintiff Michelle Little. Defendant argues that the motion judge erred
in denying its motion for summary judgment and rejecting defendant's argument
that plaintiff used city property without due care as a matter of law. We affirm,
substantially for the reasons set forth in Judge James P. Savio's well-reasoned
opinion. We add only the following brief remarks.
We discern the following facts from the record. On the night of April 9,
2016, plaintiff and her cousin went to Atlantic City to celebrate her birthday.
They arrived shortly before 11:30 p.m. and plaintiff's cousin parked their car
along Pacific Avenue. The weather was clear, and it had not rained prior to their
arrival.
Plaintiff and her cousin walked along Pacific Avenue on their way to the
Claridge Hotel. At the intersection of Pacific and Ohio Avenue, plaintiff crossed
Pacific Avenue before her cousin. Plaintiff did not use the crosswalk at the
intersection, instead crossing about seven to ten feet away from the crosswalk.
Plaintiff saw that the crosswalk, was unobstructed at the time she crossed. As
she crossed the street, she stepped into a pothole with her left foot and fell
forward and hit her head on the curb. The pothole was approximately five inches
A-2466-20 2 deep, four to six inches wide, about three or four feet long, and located along
the edge of the concrete gutter between the cement gutter and the asphalt of
Pacific Ave. She did not see the pothole prior to falling. Plaintiff tried to get
up and "get loose" from the pothole, but fell and hit her head once more.
Plaintiff struggled to free herself from the pothole. A nearby off-duty police
officer got out of her marked police car and stopped oncoming traffic for
plaintiff's safety. On her third attempt to free herself, plaintiff was able to "break
loose and get on to the curb."
Once on the curb, the police officer recommended plaintiff go to the
hospital. Plaintiff went to the nearby AtlantiCare Regional Medical Center for
evaluation and left the hospital around 1:00-1:30 a.m. The following day,
plaintiff drove home to Maryland. She sought follow-up medical care at Fort
Washington Hospital and was diagnosed with a fractured nose and a fractured
left cheek bone.
On April 5, 2018, plaintiff filed a complaint against defendant alleging:
1) negligence of defendant city; and 2) negligence of defendants-responsible
party for creation, inspection, and maintenance of the "subject trip hazard
hole[.]" Defendant filed an answer on May 31, 2018.
A-2466-20 3 On May 24, 2019, the court granted plaintiff's motion to extend discovery.
On October 25, 2019, the court granted an order to include the Casino
Redevelopment Agency and Pierson Construction, who performed road repairs
several years earlier as defendants.
On April 9, 2020, defendant filed for summary judgment, arguing plaintiff
had not provided sufficient proof of a dangerous condition under the New Jersey
Tort Claims Act (TCA). N.J.S.A. 59:4-1 to -10. The judge denied one motion
on July 17, 2020, and provided a statement of reasons in a written opinion on
July 22, 2020.
On January 7, 2021, defendant filed a second motion for summary
judgment. On February 8, 2021, the court denied the second motion in an oral
opinion.
Judge Savio considered several factors in analyzing the "dangerous
condition" element of premises liability under N.J.S.A. 59:4-1(a). First, he
noted the pothole was located only seven to eight feet away from the crosswalk,
as opposed to being farther away towards the middle of the block. He further
noted the pothole's were a significant size:
[the pothole] looks to me to be about four to six inches wide and it's running along the concrete a distance of probably three or four feet. This is not a two inch declivity . . . on a side street or a little pothole on Pacific
A-2466-20 4 Avenue. To me, at least, looking at the photographs, this is a significant area of deformity.
Second, Judge Savio emphasized the pothole's highly trafficked and
commercial locale:
[i]t's a commercial district. Whether the door to the casino parking lot is there, it's a commercial district. Bally is there, Claridge is there. The hospital is nearby. I think the library is a couple blocks away from there, but it's still in the general area. There are restaurants in that area. There are gold, silver shops in that area. This is not a . . . residential side street. This is a major street, and if we look at the streets that run north to south, Ohio Avenue is one of the major streets in Atlantic City, as well, that run north to south.
Judge Savio ultimately concluded, "giving the plaintiff the benefit of all
the facts and all of the inferences that flow from the facts," that a person crossing
Pacific Avenue could foreseeably do so outside of the crosswalk; and that a
reasonable jury could find plaintiff used the property with due care. As a result,
the question of whether plaintiff used the property with due care should be left
to a jury and he denied defendant's motion for summary judgment.
On February 22, 2021, defendant unsuccessfully moved for
reconsideration. Defendant filed a motion for leave to file an interlocutory
appeal, which the Appellate Division granted on May 6, 2021.
A-2466-20 5 We review a motion judge's grant or denial of summary judgment de novo,
applying the same standard as the motion judge. Conley v. Guerrero, 228 N.J.
339, 346 (2017). The court will accept the non-movant's version of the facts
and draw all inferences in favor of plaintiff. See Brill v. Guardian Life Ins. Co.
of America, 142 N.J. 520, 523 (1995). Summary judgment must be granted "if
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." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).
Defendant argues plaintiff "has presented no substantial or material facts
which could demonstrate she used the property with due care." The TCA
provides that, for a public entity to incur liability from a condition of public
property, a "dangerous condition" must be present "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." See N.J.S.A. 59:4-1(a); see also
Garrison v. Twp. of Middletown, 154 N.J. 282, 286-87 (1998); Polzo v. Cnty.
of Essex, 209 N.J. 51, 72 (2012). The question is generally reserved for the fact
finder. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 123 (2001).
A-2466-20 6 However, the court must first assess whether a reasonable jury could conclude
the property was in a dangerous condition based on plaintiff's evidence. Id. at
124. Potholes have qualified as a dangerous condition under the TCA. See,
e.g., Whaley v. Cnty. of Hudson, 146 N.J. Super. 76 (Law Div. 1976).
Once a defect in the property has been identified, courts must determine
whether an objectively reasonable person would face a substantial risk of injury
when using the property with due care. Garrison, 154 N.J. at 292. In Vincitore,
the New Jersey Supreme Court interpreted Garrison as prescribing a three-part
analysis:
The first consideration is whether the property poses a danger to the general public when used in the normal, foreseeable manner. The second is whether the nature of the plaintiff's activity is "so objectively unreasonable" that the condition of the property cannot reasonably be said to have caused the injury. The answers to those two questions determine whether a plaintiff's claim satisfies the Act's "due care" requirement. The third involves review of the manner in which the specific plaintiff engaged in the specific activity. That conduct is only relevant to proximate causation . . . and comparative fault.
[Vincitore, 169 N.J. at 126 (quoting, Garrison, 154 N.J.
at 292).]
Here, the pothole is undisputedly a dangerous condition. The question is
whether plaintiff's use of the property was foreseeable.
A-2466-20 7 The motion judge noted the size of the pothole and the seven to ten feet
distance from the pothole to the crosswalk. The judge further noted that
plaintiff's fall occurred in a busy commercial area surrounded by casinos, hotels,
and restaurants. He explained that a jury could consider the fact that plaintiff
was walking outside of the crosswalk, but that in "giving the plaintiff the benefit
of all of the facts and all the inferences that flow from the facts" it is foreseeable
that a person crossing Pacific Avenue would walk outside of the crosswalk. We
agree with the motion judge's analysis and therefore discern no error.
Defendant also argues plaintiff did not use the property with due care as
a matter of law. Specifically, defendant relies heavily on the fact that plaintiff
crossed Pacific Avenue outside of the crosswalk, violating N.J.S.A. 39:4-33.1
A plaintiff uses property with due care when: 1) the condition of the
property poses a danger to the general public when used in a reasonable and
foreseeable manner; and 2) when the plaintiff's conduct is not "so unreasonable"
that the property cannot reasonably be said to have caused the injury. Vincitore,
1 N.J.S.A. 39:4-33 provides: "[a]t intersections where traffic is directed by a police officer or traffic signal, no pedestrian shall enter upon or cross the highway at a point other than a crosswalk. Pedestrians shall move, whenever practicable, upon the right half of crosswalks."
A-2466-20 8 169 N.J. at 126. The parties rely primarily on the New Jersey Supreme Court's
ruling in Garrison.2
In Garrison, the New Jersey Supreme Court determined that a plaintiff
who injured himself on a known declivity in a poorly lit and uneven railroad
station parking lot while playing touch football acted without due care as a
matter of law. Garrison, 154 N.J. at 293. The court emphasized that the TCA
requires that a dangerous condition can only be found when a public entity's
property is used with due care. Id. at 287. The court explained that "[t]he
purpose of the evaluation is to ascertain whether the plaintiff had engaged in an
activity that is so objectively unreasonable that liability for resulting injuries
may not be attributed to the condition of the property." Id. at 292.
Here, plaintiff crossed Pacific Avenue outside of the crosswalk in a
commercial district in Atlantic City. The fact that she was outside of the
crosswalk does not preclude a finding of due care. A plaintiff was unaware of
the existence of the defect, unlike the plaintiff in Garrison. The most important
inquiry, however, is whether plaintiff's actions were reasonable from a
2 The parties also cite to an unreported case of this court and an unreported case from the District of New Jersey. Rule 1:36-3 prohibits citation to "appellate opinions not approved for publication." A-2466-20 9 community perspective. See id. at 291 ("A use that is not objectively reasonable
from the community perspective is not one 'with due care.'").
Anyone who spends time in urban centers in the United States will observe
individuals crossing the street outside of the designated crosswalk. Plaintiff did
not cross in the middle of the block, but was instead seven to ten feet away from
the crosswalk in a commercial district. Even though plaintiff was not supposed
to cross in this manner, it is entirely possible that this practice is common enough
to be reasonable from a community perspective. A jury should make that call.
Affirmed.
A-2466-20 10