NOT FOR PUBLICATION WITHOUT THE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-4505-18T3
DONALD K. CATTIE and
NANCY D. CATTIE,
Plaintiffs-Appellants,
v.
CITY OF OCEAN CITY,
Defendant-Respondent.
_____________________________
Argued telephonically April 2, 2020 –
Decided September 14, 2020
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Docket No. L-0042-18.
Rudolph C. Westmoreland argued the cause for
appellant (Westmoreland, Vesper, Quattrone & Beers,
attorneys; Rudolph 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
Plaintiffs Donald K. Cattie and Nancy D. Cattie appeal from the May 7,
2019 order of the Law Division granting summary judgment to defendant City
of Ocean City and dismissing plaintiffs' personal injury claims. We affirm.
I.
The following facts are derived from the record. On June 14, 2017,
Donald1 participated in a parade on the city-owned boardwalk, walking behind
a vehicle and distributing candy. He alleged that his left foot caught on a nail
protruding from the center of the boardwalk, causing him to fall forward and
suffer serious injuries to his knee.
After he fell, Donald saw a nail protruding from the boardwalk
approximately one to one-and-a-half inches. A witness also saw the nail and
estimated it was protruding between one-half and three quarters of an inch. The
witness removed the nail and gave it to a police officer at the scene.
On November 8, 2017, plaintiffs filed a complaint in the Law Division
alleging the city is liable for Donald's injuries because they were caused by a
dangerous condition of its property within the meaning of the Tort Claims Act
(TCA), N.J.S.A. 59:1-1 to 13-10. Plaintiffs alleged the city was on actual or
1
Because plaintiffs share a surname we use first names to avoid confusion.
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2
constructive notice of the dangerous condition, which it failed to cure as the
result of its palpably unreasonable behavior.
After the close of discovery, defendant moved for summary judgment,
arguing plaintiffs cannot establish a dangerous condition of its property caused
Donald's fall. In addition, defendant argued that if a dangerous condition existed
it did not have actual or constructive notice of the condition. In addition to
noting an absence of evidence that any city employee was aware of the nail,
defendant submitted evidence that in June 2017, the boardwalk was inspected
by city employees at least four times a day, Monday through Friday. A carpentry
crew employed by the city made immediate repairs of any defect found during
an inspection. Thus, the city argued, no reasonable fact finder could conclude
the city was on constructive notice of the condition because of a failure to
inspect the boardwalk. Finally, defendant argued that in light of its inspection
and repair practices, no reasonable fact finder could conclude that it acted in a
palpably unreasonable manner with respect to maintaining the boardwalk.
In opposition to the motion, plaintiffs produced an expert report of Jerry
Lee Waldo, a former Director of Public Buildings Repair for the city. Waldo
examined the nail and observed discoloration from its top to about an inch down
its shank. He opined that either the discolored portion had been exposed for at
A-4505-18T3
3
least ten years or the nail had been exposed, but hammered into the boardwalk
numerous times, enlarging the area around the nail where moisture accumulated.
In addition, he observed that the friction rings on the nail were worn, which
allowed it to slip into and out of the boardwalk easily. Waldo noted Donald's
fall took place on the oldest and most deteriorated area of the boardwalk.
Waldo opined that the nail was a dangerous condition of public property,
either because it was in a raised position for ten years or because the lack of
friction rings would have allowed it to migrate upward when vehicular traffic
passed over the board. He opined that the city should have noticed the condition
and replaced the nail, either by hammering a new nail into a different hole in the
board or by hammering a larger nail into the existing hole. In a supplemental
certification, Waldo clarified his opinion, stating that he did not believe the nail
rose up when vehicles in the parade passed over the board into which it was
nailed. He opined that his "professional opinion is that based on the fact of
discoloration of the first inch of the subject nail . . . and . . . the dilapidated
subject area of Ocean City's Boardwalk, the subject nail was raised for a long
time, at least ten years."
In a written opinion, the trial court concluded that, even if one were to
consider the nail to be a dangerous condition, plaintiffs did not prove defendant
A-4505-18T3
4
had actual or constructive notice of that condition. The court held that plaintiffs'
expert "offers no factual or scientific support for his conclusions as to the age
of the nail . . . . He simply concludes it was there for ten (10) years and therefore
[d]efendant must have [had] notice . . . ." In addition, the court held that given
defendant's inspection and repair practices, no reasonable factfinder could
conclude the city acted in a "palpably unreasonable" manner within the meaning
of N.J.S.A. 59:4-2, even if the nail was a dangerous condition. On May 7, 2019,
the trial court entered an order granting defendant's motion for summary
judgment, dismissing the complaint.
This appeal followed. Plaintiffs argue the trial court erred by: (1) not
holding a N.J.R.E. 104 hearing before deciding defendant's summary judgment
motion; (2) misconstruing their expert's report; (3) concluding plaintiffs had not
produced sufficient proof for a finding of palpably unreasonable conduct; and
(4) finding there were no genuine disputes of material fact with respect to the
existence of a dangerous condition.
II.
We review the trial court's decision granting summary judgment de novo,
using "the same standard that governs trial courts in reviewing summary
judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.
A-4505-18T3
5
162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant
summary judgment when "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." "Thus, the movant must
show that there does not exist a genuine issue as to a material fact and not simply
one of an insubstantial nature; a non-movant will be unsuccessful merely by
pointing to any fact in dispute." Prudential, 307 N.J. Super. at 167 (quotations
omitted).
We review the record "based on our consideration of the evidence in the
light most favorable to the parties opposing summary judgment." Brill v.
Guardian Life Ins. Co., 142 N.J. 520, 523 (1995). We owe no deference to the
motion judge's conclusions on issues of law. Manalapan Realty, L.P. v. Twp.
Comm., 140 N.J. 366, 378 (1995).
"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). "[P]ublic
entities shall only be liable for their negligence within the limitations of" the
TCA. N.J.S.A. 59:1-2. The requirements of the TCA are "stringent" and place
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6
a "heavy burden" on plaintiffs seeking to establish public entity liability. Bligen
v. Jersey City Hous. Auth., 131 N.J. 124, 136 (1993).
Through enactment of N.J.S.A. 59:4-2, a provision of the TCA, the
Legislature waived public entity immunity for injuries caused by a dangerous
condition of public property in limited circumstances. The statute provides, in
relevant part, as follows:
A public entity is liable for injury caused by a condition
of its property if the plaintiff establishes that the
property was in a 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
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.
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.]
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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 forseeable that it will be used."
In order to pose a "'substantial risk of injury' a condition of property cannot be
minor, trivial, or insignificant. However, the defect cannot be viewed in a
vacuum. Instead, it must be considered together with the anticipated use of the
property . . . . " Atalese v. Long Beach Twp., 365 N.J. Super. 1, 5 (App. Div.
2003).
N.J.S.A. 59:4-3 establishes when a public entity will be deemed to have
actual or constructive notice of a dangerous condition of its property:
a. A public entity shall be deemed to have actual
notice of a dangerous condition within the meaning of
subsection b. of section 59:4-2 if it had actual
knowledge of the existence of the condition and knew
or should have known of its dangerous character.
b. A public entity shall be deemed to have
constructive notice of a dangerous condition within the
meaning of subsection b. of section 59:4-2 only if the
plaintiff establishes that the condition had existed for
such a period of time and was of such an obvious nature
that the public entity, in the exercise of due care, should
have discovered the condition and its dangerous
character.
Finally, to establish palpably unreasonable behavior, a plaintiff has a
"steep burden" to prove "more than ordinary negligence." Coyne v. State Dep't
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8
of Transp., 182 N.J. 481, 493 (2005). Palpably unreasonable implies behavior
by a public entity "'that is patently unacceptable under any circumstance' and
that 'it must be manifest and obvious that no prudent person would approve of
its course of action or inaction.'" Holloway v. State, 125 N.J. 386, 403-04 (1991)
(quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (citations omitted)).
An analysis of whether a public entity's behavior is palpably unreasonable
involves "not only what has been done" but also the entity's "motivating
concerns." Schwartz v. Jordan, 337 N.J. Super. 550, 563 (App. Div. 2001).
"Simply put, the greater the risk of danger known by the Township and sought
to be remedied, the greater the need for urgency." Ibid.
Although whether a public entity acted in a palpably unreasonable manner
is often decided by a jury, the court may decide the question in appropriate cases.
Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-51 (App. Div. 2002).
"[L]ike any question of fact, the determination of palpable unreasonableness is
subject to a preliminary assessment by the court as to whether it can reasonably
be made by a fact-finder considering the evidence." Charney v. City of
Wildwood, 732 F. Supp. 2d 448, 457 (D.N.J. 2010) (citing Black v. Borough of
Atlantic Highlands, 263 N.J. Super. 445, 451-52 (App. Div. 1993)).
A-4505-18T3
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After carefully reviewing the record in light of these precedents , we are
satisfied that the grant of summary judgment is supported by the record. We ,
therefore, affirm the May 7, 2019 order for the reasons stated by the trial court
in its written opinion. We add the following comments.
We agree with the trial court's finding that no reasonable fact finder could
conclude that defendant's practice of inspecting and repairing the boardwalk was
palpably unreasonable. As Judge Rodriguez explained in Charney, which
involved a fall caused by a hole in the Wildwood boardwalk:
Even assuming, however, that Wildwood had notice of
the hole, it cannot be said that the decision to leave a
one and one-half inch deep, one and one-quarter inch
wide triangular hole unrepaired was palpably
unreasonable. At worse, the decision to leave small
boardwalk defects unrepaired was negligent. Indeed,
Wildwood . . . arguably could have made more
thorough and efficient repairs of the boardwalk.
Perfection, however, is not required under the [TCA].
Wildwood made daily inspections of the boardwalk and
repaired those defects it deemed sufficiently hazardous.
. . . Wildwood's failure to remedy a small defect in a
walkway surface cannot be said to constitute the kind
of "outrageous" or "patently unacceptable" behavior
that rises to the level of palpable unreasonableness.
Imperfections 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.
[732 F. Supp. 2d at 458.]
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To the extent we have not specifically addressed plaintiffs' remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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