Article by Betsy G. Ramos

Eight year old plaintiff Bryce Patrick was crossing the street on his way to his elementary school when he was struck by a car. He was a block away from his school when the accident occurred. In the published decision of Patrick v. City of Elizabeth, 2017 N.J. Super. LEXIS 53 (App. Div. April 24, 2017), his parents, as his guardians ad litem, sued for his injuries, contending that the area was a dangerous condition and, because it was near a school zone, it should have had additional signage to prevent this accident.

Plaintiff claimed in this lawsuit that there were other accidents at this intersection and that both of the defendants were negligent due to the inadequate signage to warn motorists of the presence of children. However, there was one sign “Watch for Children,” posted on the street where the cars were driving.

The City argued that the plaintiff failed to prove the area was a dangerous condition or that it had actual or constructive notice of any such condition, both requirements to prevail on a claim under the Tort Claims Act. Further, the City argued that it had immunity for the failure to provide ordinary traffic signs under the Act’s immunity provision, N.J.S.A. 59:4-5.

As for the Board of Education (“BOE”), it argued that it did not own, control, or maintain the roadway on which the incident occurred, nor was it responsible for the placement of traffic signs. The plaintiff contended that the BOE should be liable because it was responsible for school property and claimed that the BOE must ensure that the public road outside the school was likewise safe.

The trial court agreed with the defendants’ arguments and dismissed as to both defendants. This appeal ensued.

The Appellate Division pointed out that none of the prior accidents at this intersection revealed any similar accident reported in this area. Also, there was no evidence of prior complaints to the City as to this area, nor were there any proofs presented to conclude “that defendants were palpably unreasonable in not placing additional signage in the area around the school, apart from the children crossing sign that was further down the street closer to the school.” The Appellate Division ruled that the type of signage and where to place the signage was within the discretion of the City and it is immunized under N.J.S.A. 59:2-3(a)(immunity to public entities for the exercise of judgment or discretion vested in the entity.)

The Appellate Division also found that the City had immunity under N.J.S.A. 59:4-5, which provides that a public entity is not liable for an injury caused by the failure to provide ordinary traffic signs. The Court rejected the plaintiff’s argument that a sign near a school zone should be considered to be other than an “ordinary” traffic sign.

As for the BOE, while the plaintiff conceded that the BOE did not own, control, or maintain the roadway, the plaintiff nevertheless argued that the BOE had a duty to maintain the area in a safe and suitable condition for use so that the children traversing the area could do so safely. However, the Appellate Division pointed out that to impose liability under the Tort Claims Act, there must be ownership of public property. Because it is undisputed that the BOE did not own the roadway where the accident occurred, it cannot be held liable for property that is owned by another entity that contains an allegedly dangerous condition.

The Appellate Division also rejected the plaintiff’s argument that the BOE should be required to ensure that the City installed property school area signage. There were no proofs presented that the BOE was responsible to install signage and, regardless, the Court ruled that the BOE would be similarly immune under N.J.S.A. 59:4-5 for the failure to install an ordinary traffic sign.

Hence, the Appellate Division affirmed the trial court’s decision to dismiss as to both defendants.