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NJ App Div Rules Fall on Icy Atlantic City Boardwalk Not Actionable

January 29, 2010

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In Kathryn and Daniel Pote v. City of Atlantic City et. al., the plaintiffs appealed a summary judgment dismissal of Kathryn's premises liability complaint against SMG, the property manager of Boardwalk Hall, for injuries allegedly sustained when she slipped and fell on an icy patch of snow on the Atlantic City boardwalk, which is owned and maintained by the City, as she was approaching Boardwalk Hall to attend a show.
On appeal, plaintiffs challenged the trial court's summary judgment ruling as erroneous, contending: (1) SMG had a duty to provide its customers with safe passage over the limited area of boardwalk leading to the entranceway; (2) there were genuine issues of material fact as to whether, and to what extent, SMG removed snow and ice from its premises and from the area immediately in front of its premises and put it on the boardwalk; (3) SMG had a duty to at least salt the area of the boardwalk in front of its premises where thousands of patrons would line up to enter; (4) in light of the reasonable inference that SMG put snow on the boardwalk in front of the pillars in front of Boardwalk Hall, it should be liable for "repairs voluntarily undertaken but negligently performed"; and (5) the duty of SMG should have been defined in terms of the need to take some reasonable action to provide safe ingress and egress over the limited area of the boardwalk in front of Boardwalk Hall.
The Appellate Division held that, because Boardwalk Hall is uniquely accessed by its patrons only from the boardwalk, SMG enjoyed some benefit from the public use of the boardwalk. However, the Court was not convinced the benefit automatically translated into a corresponding duty to protect its patrons from the hazards of the boardwalk that is maintained by the City. Nor was the Court convinced that a pedestrian walking along the boardwalk during the day with clear visibility of intermittent patches of ice and snow faces a substantial risk of slipping and suffering injury. Further, there was no evidence presented that the adjoining commercial enterprise had the ability and authority to shovel, salt or place warning signs on the boardwalk owned and controlled by Atlantic City.
Thanks to Sheila Osei for her contribution to this post.
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