                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-3-2007

Reese v. Finley
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4657




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Recommended Citation
"Reese v. Finley" (2007). 2007 Decisions. Paper 1816.
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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-4657


                       DIANE L. REESE and DONALD REESE

                                                 Appellants

                                            v.

                   ROBERT FINLEY and CITY OF OCEAN CITY



                    On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. Civil No. 03-04029)
                     District Judge: Honorable Jerome B. Simandle


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 13, 2006

     Before: FUENTES and VAN ANTWERPEN, Circuit Judges, and PADOVA,*
                              District Judge.

                                (Filed: January 3, 2007)
                                          ____

                                OPINION OF THE COURT




_____________
*The Honorable John R. Padova, District Judge of the Eastern District of Pennsylvania,
sitting by designation.
PADOVA, District Judge.

          Appellants Diane L. Reese and Donald Reese appeal the District Court’s order

granting summary judgment in favor of the City of Ocean City in a tort claim brought by

them pursuant to the New Jersey Tort Claims Act as a result of injuries sustained by Mrs.

Reese in an accident on Ocean City’s Boardwalk.

          Appellants raise three issues on appeal. First, they contend that the District Court

erred by concluding, as a matter of law, that the width of the Ocean City Boardwalk was

not a “dangerous condition of property” under the New Jersey Tort Claims Act, N.J. Stat.

Ann. § 59:1-1, et seq. Second, they argue that the District Court erred by concluding, as a

matter of law, that Ocean City did not act in a “palpably unreasonable” manner in its

conduct regarding recreational bicycle use on its Boardwalk. Third, they contend that the

District Court erred in failing to consider their argument that Ocean City was not entitled

to design immunity under the Act.

          We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We will

affirm.

                                    I. Factual Background

          Because we write solely for the parties, we set forth only those facts necessary to

our analysis.

          On Friday, July 19, 2002 at approximately 7:30 a.m., Mrs. Reese, a 58-year-old

school teacher, was walking on the Boardwalk between 18th and 19th Streets in Ocean

City, New Jersey, proceeding northbound with her sister-in-law to her right. At the same

                                               -2-
time, Robert Finley was riding a bicycle on the Boardwalk between 18th and 19th Streets

traveling northbound. When Finley first saw Mrs. Reese, he was approximately twenty

feet behind her, and there were no other individuals between them. As Finley approached

Mrs. Reese, he attempted to pass her on her left. However, according to Finley, four

teenagers, whom he called “hot-doggers,” traveling southbound swerved out one by one,

consuming the space that he needed to make his pass, and forcing him to veer his bicycle

into Mrs. Reese, striking her from behind. Mrs. Reese was knocked to the ground. She

struck her head on the Boardwalk, and was rendered unconscious.

       The parties presented conflicting evidence regarding whether the Boardwalk was

crowded at the time of the accident, and whether the accident would have occurred if the

Boardwalk were wider. Finley testified that there were bikers, joggers, and pedestrians

all sharing the same space on the Boardwalk and that the Boardwalk was “kind of a free

for all.” The police officer who arrived at the scene of the accident noted in his report

that traffic was “extremely heavy” at the time of the incident. Ocean City, however,

contends that there was light traffic on the Boardwalk and points to Finley’s testimony in

which he states that, at the moment he made his decision to pass Mrs. Reese, the distance

between her and the next group of individuals traveling southbound on the Boardwalk

was twenty feet.

       At the location of the collision between Finley and Mrs. Reese, the Boardwalk is

approximately 14.5 feet wide. Finley testified that the width of the Boardwalk

contributed to the cause of the accident. However, Ocean City contends that Finley

                                             -3-
repeatedly testified that there was sufficient room and time for him to pass Mrs. Reese

safely. For example, Finley testified: “It looked like [passing Reese and her companion]

was clearly going to be easy,” “I clearly had enough time to pass,” and “I still had room

to pass.” Finley also testified that there was sufficient space for Mrs. Reese and her

companion to walk closer to the Boardwalk railing on the ocean side to allow him to pass

without incident, and that the bikers traveling southbound caused him to divert his path

into Mrs. Reese. Appellants presented a report from Leonard Lucenko, Ph.D., a certified

expert in recreational safety and engineering, who concluded that the Boardwalk is too

narrow in the area between 14th and 23rd Streets to accommodate all the traffic permitted

on the Boardwalk and that this narrowness creates a dangerous and unsafe condition for

those using the Boardwalk. Finally, Appellants assert that officials from Ocean City were

aware of the hazards and dangers created by the congestion and operation of bicycles on

the narrow portion of the Boardwalk prior to Mrs. Reese’s injury in July 2002. Ocean

City, however, asserts that because the Boardwalk plays a crucial role in the economic

well being of the city, it has taken steps to address increasing congestion on the

Boardwalk and accidents which may occur as a result of this congestion. These actions

include: limiting the hours bicycle use is permitted on the Boardwalk, limiting the

location of where surrey carts can go, and widening the Boardwalk at certain locations.




                                             -4-
                                   II. Standard of Review

         Our review of the District Court’s grant of summary judgment is plenary. See

Witkowski v. Welch, 173 F.3d 192, 198 (3d Cir. 1999). Consequently, we assess the

record using the same summary judgment standard that guides the district courts. See

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). To prevail on a

motion for summary judgment, the moving party must demonstrate “that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” Fed. R. Civ. P. 56(c). In evaluating the evidence, we “view the

inferences to be drawn from the underlying facts in the light most favorable to the party

opposing the motion.” Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999).

                                         III. Analysis

         Appellants argue that the District Court erred in concluding that the width of the

Boardwalk did not create a dangerous condition of public property under the New Jersey

Tort Claims Act (the “Act”) because it failed to consider the permitted conduct and the

objectively foreseeable behavior of persons using the Boardwalk in combination with its

width.

         The Act provides that public entities “shall only be liable for their negligence

within the limitations of the Act.” N.J. Stat. Ann. § 59:1-2. Under the Act, immunity

from tort liability is the general rule and liability is the exception. Bombace v. City of

Newark, 593 A.2d 335, 341 (N.J. 1991). One such exception is provided by § 59:4-2,

which states:

                                               -5-
       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 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. Stat. Ann. § 59:4-2. “Dangerous condition” is defined 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.” Id. § 59:4-1(a). “In

certain cases, this question of ‘dangerous condition’ must be resolved by the court as a

matter of law, in order to ensure that the ‘legislatively-decreed restrictive approach to

liability’ is enforced.” Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 643 (D.N.J.

1997) (quoting Polyard v. Terry, 390 A.2d 653, 658 (N.J. Super. Ct. App. Div. 1978),

aff’d o.b., 401 A.2d 532 (N.J. 1979)).

       Appellants contend that under New Jersey law, the district court should have

considered, along with the width of the Boardwalk, factors such as the conduct permitted

on the Boardwalk, the absence of lanes to separate bikers from pedestrians, lack of


                                             -6-
warnings to use extra caution in the narrow portion of the Boardwalk, and the failure to

monitor conduct of users of the Boardwalk to determine whether the Boardwalk was a

dangerous condition. Appellants rely on language in Levin v. County of Salem, 626 A.2d

1091 (N.J. 1993), that “whether a dangerous condition is present depends on a

combination of factors relating to physical condition, permitted conduct, and objectively

foreseeable behavior.” Id. at 1095. We do not agree that Levin supports Appellants’

position.

       Contrary to Appellants’ argument, the New Jersey Supreme Court in Levin held

that a “dangerous condition” refers to the “physical condition of the property itself and

not to activities on the property.” Id. at 1095. In Levin, the plaintiff suffered a paralyzing

injury when he dove off a county bridge and hit a submerged sandbar. Id. at 1092. The

plaintiff appealed the granting of summary judgment in favor of the various government

entities arguing that the use of the bridge as a recreational facility, when the government

entities were aware of this use, created a dangerous condition of property. Id. at 1095.

The New Jersey Supreme Court affirmed that the bridge was not a dangerous condition.

Id. at 1098. In its opinion, the court rejected the approach taken by the New Jersey

Appellate Division in Burroughs v. City of Atlantic City, 560 A.2d 725 (N.J. Super. Ct.

App. Div. 1989), and relied upon by Appellants in their brief. Levin, 626 A.2d at 1095-

96. Burroughs held that “whether a dangerous condition is present depends on a

combination of factors relating to physical condition, permitted conduct, and objectively

foreseeable behavior.” Burroughs, 560 A.2d at 731. The Levin court was concerned that

                                             -7-
the Burroughs approach to determining whether there was a dangerous condition was too

broad and noted that other courts have understood a “dangerous condition” to refer only

to the “physical condition of the property itself.” Levin, 626 A.2d at 1095 (citing Sharra

v. City of Atlantic City, 489 A.2d 1252, 1255 (N.J. Super. Ct. App. Div. 1985)). The

court was also concerned that the Burroughs doctrine would effectively eliminate the

plan-or-design immunity conferred by N.J. Stat. Ann. § 59:4-6, because the plaintiff

alleged that the bridge was a dangerous condition since its lacked signs or means of

interdiction such as a chain-link fence. Id. at 1095-96.1 The court noted that the plan-or-

design immunity shelters the bridge designers’ decision to accept or reject the concept of

posting a chain-link fence along the sides of the bridge, and, therefore, reasoned that

allowing consideration of whether the absence of a chain-link fence created a “dangerous

condition” would permit plaintiffs to circumvent this plan-or-design immunity. Id. at

1096. Consequently, Appellants’ reliance on Levin is misplaced as the specific language


  1
      The plan-or-design immunity provision of the Act states:

               Neither the public entity nor a public employee is liable under
               this chapter for an injury caused by the plan or design of
               public property, either in its original construction or any
               improvement thereto, where such plan or design has been
               approved in advance of the construction or improvement by
               the Legislature or the governing body of a public entity or
               some other body or a public employee exercising
               discretionary authority to give such approval or where such
               plan or design is prepared in conformity with standards
               previously so approved.

N.J. Stat. Ann § 59:4-6.

                                             -8-
they rely upon in their brief was rejected by Levin.

       The court in Levin also examined California case law because the California Tort

Claims Act was the model for the New Jersey Act. Id. The court noted with approval

that California cases have held that a physical defect in the public property must exist as a

precondition to public-entity liability. Id. at 1097. Although the Levin court allowed that

a physical defect in the property, such as a broken window, combined with the

foreseeable neglect or misconduct of third parties, may result in the imposition of liability

on the public entity because the combination renders the property unfit, the imposition of

liability requires, first and foremost, a physical defect in the property. Levin, 626 A.2d at

1098. The Levin court concluded that there was no missing plate, no broken bolt, no

defect in the bridge itself that caused or contributed to the cause of the accident, and,

therefore, the bridge was not a “dangerous condition” under the Act. Id.

       Other cases brought under the Act clarify that a dangerous condition refers to a

physical condition or defect of the property. For example, in Cordy, the plaintiff alleged

that a railroad track that intersected a road perpendicularly and was slightly elevated

above the surface of the road was a “dangerous condition.” Cordy, 975 F. Supp. at 643.

The court found that this was not a dangerous condition as a matter of law, primarily

because the condition could not be rationally found to have created a substantial risk of

injury. Id. In Atalese v. Long Beach Twp, 837 A.2d 1115 (N.J. Super. Ct. App. Div.

2003), the plaintiff sued Long Beach Township after she fell and hit her head as a result

of an uneven roadway surface. Id. at 1116. The Department of Public Works had

                                             -9-
installed a sewer extension in the area and created a depression approximately three-

quarters of an inch in the surface of the roadway. Id. at 1116-17. The court concluded

that this defect could have created a “dangerous condition,” and, thus, summary judgment

was inappropriate. Id. at 1118. In Mendelsohn v. City of Ocean City, Civ. A. No. 02-

5390, 2004 U.S. Dist. LEXIS 20467 (D.N.J. 2004), plaintiffs sued Ocean City after an

accident in which Mrs. Mendelsohn tripped and fell on the Boardwalk as a result of a

protruding nail. Id. at *2. Plaintiffs claimed that a protruding nail amounted to a

dangerous condition. Id. at *8. The court held that “[a] nail protruding one quarter of an

inch is not within the category of defects encompassed by the liability provisions of the

Act” because such a “minor defect” did not present a “substantial risk of injury.” Id. at

*13, 16. Each of these cases illustrates that a “dangerous condition” involves a physical

defect.

          In the instant case, there is no evidence that there was a physical defect in the

Boardwalk. The Boardwalk is the width it was designed to be, it exists in its intended

condition, and unlike a broken window or a protruding nail there is nothing inherently

defective about the width of the Boardwalk. Appellants claim that the Boardwalk is too

narrow. However, Appellants can establish that the Boardwalk is too narrow only if we

consider the activities permitted on it. Consideration of the activities permitted on the

Boardwalk to determine whether it constitutes a dangerous condition would require

applying the Burroughs approach which was specifically rejected by the New Jersey

Supreme Court in Levin.

                                               -10-
       The issue of whether the width of the Boardwalk contributed to the accident, or

whether the accident was solely the result of the negligence of Finley and the four teenage

cyclists, is a question of fact. However, that issue is immaterial, because, as a matter of

law, the Boardwalk without any physical defect and existing as it was intended to be

cannot be a “dangerous condition” as defined in the Act and interpreted in the relevant

case law. See Levin, 133 N.J. at 1095. We find, accordingly, that the District Court did

not err in holding that Appellants failed to establish that the Boardwalk was a dangerous

condition.

       Appellants also contend that the District Court erred when it failed to consider

their argument that Ocean City is not entitled to the plan-or-design immunity provided by

the Act. The plan-or-design immunity provides an affirmative defense as to which the

public bears the burden of proof. May v. Atlantic City Hilton, 128 F. Supp. 2d 195, 202

(D.N.J. 2000). If a basis for the public-entity’s liability is not established by another

provision of the Act, then there is no need for an affirmative defense. In this case,

Appellants have failed to show that Ocean City is potentially liable under N.J. Stat. Ann.

§ 59:4-2. Consequently, Appellants’ argument that Ocean City is not entitled to this

affirmative defense is irrelevant and their argument that the District Court erred by failing

to consider whether Ocean City is entitled to the affirmative defense is without merit.

       Furthermore, the District Court correctly found that neither the actions nor

omissions of Ocean City were “palpably unreasonable” under N.J. Stat. Ann. § 59:4-2(b)

so as to give rise to liability. See Johnson v. Essex County, 538 A.2d 448, 456-57 (N.J.

                                             -11-
Super. Ct. Law Div. 1987) (explaining that “to be palpably unreasonable, [there] must be

action or inaction that is plainly and obviously without reason or reasonable basis,

capricious, arbitrary, or outrageous” (citation omitted). In addition, we find Ocean City is

entitled to discretionary immunity under N.J. Stat. Ann. § 59:2-3(a) & (b) because the use

and structure of the Boardwalk is clearly a “high-level policy determination” for this

resort town. Costa v. Josey, 401 A.2d 526 (N.J. 1979).

                                     IV. Conclusion

       We have considered all other arguments made by the parties on appeal, and

conclude that no further discussion is necessary. For the foregoing reasons, we will

affirm the District Court’s order granting summary judgment in favor of Ocean City.




                                            -12-
