                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-31-2002

Penny v. Wildwood Crest
Precedential or Non-Precedential:

Docket 0-2800




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Recommended Citation
"Penny v. Wildwood Crest" (2002). 2002 Decisions. Paper 83.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/83


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                                                 NOT-PRECEDENTIAL
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ____________

                            No. 00-2800
                            ____________

                 THEADORA PENNY, JAMES M. PENNY, JR.,

Appellants
                                             v.

                 BOROUGH OF WILDWOOD CREST; CITY OF WILDWOOD;
                 CITY OF WILDWOOD WATER DEPARTMENT; JOHN
                 DOES 1-5
                            ____________

             Appeal from the United States District Court
                    For the District of New Jersey
                         D.C. No.: 99-cv-3383
              District Judge: Honorable Joseph E. Irenas
                             ____________

   Submitted Under Third Circuit LAR 34.1(a) January 18, 2002

Before: SCIRICA, ROSENN, Circuit Judges, and KANE, District Judge.

                     (Filed: January 31, 2002)

Gregory D. Saputelli, Esq.
Kimberly D. Sutton, Esq.
Obermayer, Rebmann, Maxwell & Hippel, LLP
20 Brace Road
Suite 300
Cherry Hill, NJ 08034
     Counsel for Appellants

Jeffrey P. Barnes, Esq.
Mary D'Arcy Bittner, Esq.
L. Patricia Sampoli, Esq.
Youngblood, Corcoran, Lafferty, Stackhouse,
     Hyberg & Gormley, P.A.
3205 Fire Road, P.O. Box 850
Pleasantville, NJ 08232
     Counsel for Appellee Borough of Wildwood Crest

Kevin M. Stankowitz, Esq.
Judson B. Barrett, Esq.
Widman, Cooney, Barrett & Pavluk
1803 Highway 35
Oakhurst, NJ 07755
     Counsel for Appellee City of Wildwood and
     City of Wildwood Water Department


                          ____________

                       MEMORANDUM OPINION
                          ____________


ROSENN, Circuit Judge.
     This diversity action primarily against two municipalities implicates
the New
Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (Act). Because the facts
are known to the
parties, we refer to them briefly.
     In August 1997, Theodora Penny (Theodora) was vacationing in the
Borough of
Wildwood Crest, New Jersey. As she attempted to cross Sweet Briar Road at
the corner
of New Jersey Avenue, she claims that she fell because of a declivity in
the surface of the
crosswalk. The crosswalk is nothing more than an area marked for purposes
of walking
across the road by painted stripes. The depressed area of the crosswalk
was part of a
street patch that measured approximately six feet six inches in length and
five feet two
inches in width, of which approximately one foot by five feet protruded
into the
crosswalk. Within this protrusion, the declivity in the crosswalk
measured approximately
one inch to one and five-eighth inches. Mrs. Penny sustained multiple
fractures to her left
wrist that required the insertion of a metal plate and screws.
     Mrs. Penny and her husband, James M. Penny, Jr., filed an action
under 28 U.S.C.
  1332 (diversity jurisdiction) in the United States District Court for
the District Court of
New Jersey against the Borough of Wildwood Crest (Borough), the City of
Wildwood
and the City of Wildwood Water Department (City). The Borough and the
City
separately moved for summary judgment, contending that the plaintiffs have
failed to
satisfy the statutory requirements that the defendants' conduct was
"palpably
unreasonable." The District Court agreed and concluded that "it was not
palpably
unreasonable for the Defendants to fail to inspect, detect, or repair the
'depression' at
issue." The plaintiffs timely appealed. We affirm.
     Our review of the District Court's grant of summary judgment is
plenary.
Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 632 (3d Cir. 1996). Summary
judgment
is proper if after considering "the pleadings, depositions, answers to
interrogatories, and
admissions on file, together with the affidavits, if any, . . . there is
no genuine issue as to
any material fact and . . . the moving party is entitled to judgment as a
matter of law."
Fed. R. Civ. P. 56(c). In conducting that review, the nonmoving party is
entitled to all
reasonable inferences and the record is construed in the light most
favorable to that party.
Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (1986).
     An issue is genuine if "there is sufficient evidence favoring the
nonmoving party
for a jury to return a verdict for that party." Anderson v. Liberty
Lobby, Inc., 477 U.S.
242, 248 (1986). As such, summary judgment against a party who bears the
burden of
proof at trial, as do the plaintiffs here, is proper if "after adequate
time for discovery and
upon motion, . . . a party . . . 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Under such
circumstances, there can be no genuine issue as to any material fact,
where "complete
failure of proof concerning an essential element of the nonmoving party's
case
necessarily renders all other facts immaterial." Id. at 323. Therefore,
the moving party is
entitled to a judgment as a matter of law when the nonmoving party has
failed to make a
sufficient showing on an essential element of the case with respect to
which he or she has
the burden of proof. Id.
     The New Jersey Supreme Court in Willis v. Department of Conservation
&
Economic Development, 264 A.2d 34 (1970) abrogated the sovereign tort
immunity
existing at common law. In response, the New Jersey Legislature enacted
the New Jersey
Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, reestablishing sovereign
immunity and
carefully delineating narrow exceptions to the general rule of immunity.
Vincitore v.
New Jersey Sports & Exposition Auth., 777 A.2d 9, 12 (N.J. 2001). One of
those
exceptions is N.J.S.A. 59:4-2. Most recently, the New Jersey Supreme
Court
summarized the elements of a claim under N.J.S.A. 59:4-2 as follows:
     [I]n order to impose liability on a public entity pursuant to that
section, a plaintiff
     must establish [1] the existence of a "dangerous condition," [2] that
the condition
     proximately caused the injury, [3] that it "created a reasonably
foreseeable risk of
     the kind of injury which was incurred," [4] that either the dangerous
condition was
     caused by a negligent employee or the entity knew about the
condition, and [5]
     that the entity's conduct was "palpably unreasonable."

Id. (emphasis added).
     Although "palpably unreasonable" is not defined in the Act, the New
Jersey
Supreme Court has interpreted the phrase to mean something more than mere
negligence.
Kolitch v. Lindedahl, 497 A.2d 183, 187 (N.J. 1985) ("We have no doubt
that the duty of
ordinary care, the breach of which is termed negligence, differs in degree
from the duty to
refrain from palpably unreasonable conduct. The latter standard implies a
more obvious
and manifest breach of duty and imposes a more onerous burden on the
plaintiff.")
(quoting Williams v. Phillipsburg, 408 A.2d 827 (App. Div. 1979); Pico v.
New Jersey,
560 A.2d 1193, 1997 (N.J. 1989) (stating that claim under N.J.S.A. 59:4-2
is evaluated
under standard of palpably unreasonable conduct and not by standard of
ordinary
negligence). Also, the Kolitch court stated that "palpably unreasonable"
involves
behavior that is "patently unacceptable under any given circumstances" and
involves
action or inaction that is so unreasonable that "it must be manifest and
obvious that no
prudent person would approve." Kolitch, 497 A.2d at 187 (citation
omitted).
     Initially, the plaintiffs complain that the "District Court decided
that it should play
the role of the prudent person" and thereby, impermissibly took the issue
of palpably
unreasonable conduct from the jury. We do not agree. Although the New
Jersey
Supreme Court has stated that the question of palpably unreasonable
conduct is a question
of fact, it has also recognized that "like any other fact question before
a jury, [such
determination] is subject to the court's assessment whether it can
reasonably be made
under the evidence presented." Vincitore, 777 A.2d at 12, 16 (citation
omitted).
Likewise, Justice Stein in his concurrence in Garrison v. Township of
Middletown, 712
A.2d 1101, 1116 (N.J. 1998) acknowledged that "[a]lthough the question of
palpable
unreasonableness is generally one for the jury, it may be decided by the
court as a matter
of law in appropriate cases." That is what the District Court did in this
instance.
     The plaintiffs simply have not offered any admissible evidence that
would enable
a reasonable jury to find that "the action the entity took to protect
against the condition or
the failure to take such action was . . . palpably unreasonable."
N.J.S.A. 59:4-2. The
plaintiffs contend that the Borough could have avoided the depression from
being part of
the crosswalk by painting the western crosswalk one and one-half feet to
the east. The
failure to do so, they argue, amounts to patently unreasonable behavior to
protect the
public from a dangerous condition. As to the City of Wildwood, plaintiffs
submit that the
City's failure to properly train its employees and leaving them
unsupervised when they
performed an excavation was palpably unreasonable conduct to protect
against a
dangerous condition. We do not agree.
     In Garrison, the plaintiff had argued that a failure to repair a one
inch to one and
half inch declivity in the surface of a parking lot next to a transit
station was palpably
unreasonable. Justice Stein in his concurrence pointed out that such
minor declivity
"must necessarily be viewed as a maintenance item of low priority" and in
the absence of
other evidence in the record of prior complaints or prior injuries, there
is "insufficient
evidence to permit a rational factfinder to conclude that the . . .
failure to correct the
surface declivity in the parking lot was palpably unreasonable." Garrison
712 A.2d at
1116.
     Here, the plaintiffs have not adduced any evidence of any prior
complaints or
accidents. The plaintiffs contend that the crosswalk could have been
designed to exclude
the irregular surface from its pathway or that the City failed to properly
train or supervise
its employees to avoid creating depressions in areas they excavate.
However, no
reasonable jury could find that a failure to repair such surface declivity
having a depth of
one inch to one and five-eighth inches amounts to anything more than
ordinary
negligence. To put it differently, based on the current evidence, the
District Court did not
err in concluding that the failure of the Borough or the City to protect
against the irregular
paving was not "patently unacceptable under any given circumstances" and
did not
involve action or inaction that was so unreasonable that "it must be
manifest and obvious
that no prudent person would approve of its course of action or inaction."
     In light of our ultimate disposition here, we need not consider
whether the District
Court erred in concluding that the plaintiffs had failed to adduce
sufficient evidence to
show that the Borough had notice of the dangerous condition, or its
finding with respect
to the City that the plaintiffs had failed to show that the depression in
the crosswalk was a
dangerous condition. Nor do we discuss the plethora of alternative
grounds of affirmance
that the Borough and the City advance in their briefs.
     The judgments of the District Court will be affirmed. Costs taxed
against the
appellants.
TO THE CLERK:

Please file the foregoing opinion.




/s/Max Rosenn
                                     Circuit Judge
