Plaintiff Jessica Feeney tripped and fell while walking on the boardwalk in the City of Atlantic City. She sued the City claiming that she tripped on uneven boards and that the City was negligent in causing the dangerous condition and that it failed to timely repair the condition. The issue in Feeney v. City of Atlantic City, 2025 N.J. Super. Unpub. LEXIS 421 (App. Div. Mar. 19, 2025) was whether the City could be liable for either causing or failing to repair the boardwalk before the plaintiffs’ accident.
This accident occurred on August 30, 2019, when plaintiff was walking on the boardwalk in the City near the Showboat Hotel. Plaintiff testified that there was a raised board and her right foot rolled on the uneven board and her leg buckled. She tripped, fell and injured herself. She denied noticing the uneven board before she fell. After the accident, her husband went back and took photos which showed that there was one board that was lower than the adjacent board with a displacement of approximately 1 inch.
She and her husband sued the City, claiming that the City was negligent in causing the condition on the boardwalk and in failing to timely repair the uneven board. She retained a liability expert, Arthur Chew, who reviewed the photographs and opined that there was a hazardous condition. He also opined that the City’s police vehicles and public works vehicles that ride on the boardwalk placed high stresses in the boardwalk and they may cause the boards to become uneven.
The expert relied upon testimony from City employees who explained that the boards could become uneven for numerous reasons which included weather, shifting of the boardwalk foundation, sand being pushed up against the underside of the boardwalk and vehicles going across the boardwalk. Displacements of more than a ¼ of an inch between boards were something that needed to be looked at. The City also admitted that any vehicle on the boardwalk does damage.
The City filed for summary judgment, arguing that it was shielded from liability under the Tort Claims Act. It asserted that it had no actual or constructive notice of the uneven boards where plaintiff fell. It also argued that its conduct in inspecting the boardwalk, which was approximately 4½ miles long, was not palpably unreasonable. Finally, it contended that the uneven boards or raised boards did not constitute a dangerous condition as defined by the Act.
The trial court granted the summary judgment and dismissed the case. It found that the uneven condition of the boards did constitute a dangerous condition. However, there was no evidence that the City caused the dangerous condition. It found plaintiffs’ liability expert’s opinion to be speculative because there were no facts to support that the City had caused the boards to become uneven. Knowing that vehicles might cause the boardwalk to become uneven in certain places did not establish that the boards where plaintiff tripped became uneven because a vehicle drove on those boards. Further, there were no facts to establish when the boards became uneven and, thus, a jury could not conclude that the City failed to repair the dangerous condition in a reasonable period of time.
Finally, the trial court also concluded that the City had not acted palpably unreasonably. The trial court pointed out that the City had an inspector who regularly inspected the boardwalk and plaintiff had presented no evidence that the City should have discovered the uneven boards before plaintiffs’ accident.
This summary judgment dismissal was appealed to the Appellate Division. Plaintiff argued that a trial court should not have granted summary judgment because there were material disputed facts concerning whether the City created the dangerous condition that caused her fall. Further they argued that their expert’s opinions were not net opinions and were supported by the factual evidence. However, the Appellate Division rejected these arguments and affirmed the trial court decision.
The Court noted that the City, as a public entity, was only liable for negligence as permitted under the Tort Claims Act. To establish liability, the Appellate Division noted that the plaintiff must prove as follows:
1. A dangerous condition existed on the property at the time of the injury.
2. The dangerous condition proximally caused the injury.
3. The dangerous condition caused 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.
5. The action or inaction taken by the public entity to protect against the dangerous condition was palpably unreasonable.
Here, the Appellate Division noted that there was no evidence that the City had actual knowledge of the uneven boards. Instead, the plaintiffs’ argument was that the City knew that vehicles drove on the boardwalk, that vehicles might cause the boards to become uneven, and that the City’s vehicles going across the boardwalk likely created the uneven boards. However, the Court found that there was no evidence from which a jury could find that the City had actual or constructive notice of this condition. It pointed out that “[k]nowing that a boardwalk stretching more than 4 miles can be damaged on various times and various causes, including vehicles driving on or across the boardwalk, does not constitute actual or constructive knowledge of this specific dangerous condition that caused [plaintiff] to fall.”
As for plaintiffs’ theory that the City should have inspected and found the uneven boards, the Court pointed out that the problem with this theory is that plaintiffs have no evidence as to how long the boards were uneven. Plaintiffs’ liability expert was never able to identify when the boards became uneven. Rather, he merely speculated that the City should have discovered the uneven boards if they conduct a regular inspection. The Court found that without knowing when the boards became uneven, 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.”
As for the last prong as to whether the City acted palpably unreasonable, the plaintiffs’ best argument was that the City should have discovered the uneven inspections where plaintiff fell by conducting more regular inspections. However, the City did inspect for dangerous conditions on the boardwalk and there was no evidence from which a jury could find that the City’s failure to conduct more inspections was palpably unreasonable.
The Appellate Division also rejected the expert’s opinion that the City’s vehicles created the damage to the boards. The Court pointed out that there were no facts to support this opinion.
Thus, the Appellate Division agreed with the trial court’s decision and affirmed the summary judgment dismissal in favor of the City of Atlantic City.
