Client: Orange Board of Education
Brief Attorney: Jessica M. Anderson, Esq.
Plaintiff, a 17 year old senior at Orange High School, left school without permission in the early afternoon to go skateboarding and was injured when he hit a defect in the roadway. Plaintiff’s claimed injuries included a skull fracture, cerebral hemorrhage which resulted in a crainiotomy and crainioplasty, memory loss, cognitive and neurologic dysfunction, and acute respiratory failure.
We filed a motion for summary judgment arguing that pursuant to Pico and Ogborne, Plaintiff cannot invoke liability under both dangerous condition liability pursuant to N.J.S.A. 59:4-2 and the ordinary negligence standard in N.J.S.A. 59:2-2. We further argued that Plaintiff’s claim that Defendant allowed Plaintiff to leave school property is not viable because Defendant is immune for failure to enforce the law pursuant to N.J.S.A. 59:2-4, for its exercise of discretion when determining whether and how to apply resources pursuant to N.J.S.A. 59:2-3(d), for injury caused by an escaping person pursuant to N.J.S.A. 59:5-2(b)(2), and even if Defendant was not immune, Plaintiff could not prove the elements of a dangerous condition or negligence because Plaintiff was not exercising due care, Defendant did not have a duty or prevent Plaintiff from leaving school property because he was over the age of 16 and our compulsory education statute limits the age in which a child must attend school to the ages between six and sixteen, and no reasonable jury could conclude that Defendant’s alleged negligence proximately caused the accident.
Plaintiff agreed that dangerous condition liability pursuant to N.J.S.A. 59:4-2 applied, and not the ordinary negligence standard in N.J.S.A. 59:2-2. However, Plaintiff argued that the immunities did not apply because he was not making an argument that Defendant failed to enforce the truancy laws, but rather was arguing that Defendant failed to adequately follow its own procedures and protocols – i.e. failing to notify Plaintiff’s parents that he was cutting school; discretionary immunity did not apply because his liability expert outlined the duty imposed on Defendant; and that N.J.S.A. 59:5-2(b)(2) only applies to escaped prisoner or persons under police arrest or police custody. Plaintiff further argued that the manner in which security was run at the school created a dangerous condition because students would cut class and leave school via the trailer area; Plaintiff’s failure to exercise due care is a question for the jury; and that Defendant proximately caused his accident because they knew students were cutting school by leaving through the trailer area and failed to stop them.
We filed a reply brief arguing that the immunities do apply because failing to enforce truancy laws or failing to notify Plaintiff’s parents that he was cutting school bears no material difference; the duty outlined by Plaintiff’s expert is immaterial as the court must first determined whether an immunity applies before engaging in a liability analysis; and that our courts have held that N.J.S.A. 59:5-2(b)(2) should receive a board interpretation in view of the clear legislative objective of immunity and as such has been applied to public entities beyond police departments. See Tice v. Cramer, 254 N.J. Super. 641, 648 (App. Div. 1992). Defendant further argued that Plaintiff has not asserted a viable theory because there is no indication that there was a physical defect in the trailers themselves, Levin v. County of Salem, 133 N.J. 35, 44 (1993); the term “due care” has been interpreted to mean objective, not subjective, due care and Plaintiff has failed to prove that element; and the exclusive proximate cause of this accident was Plaintiff’s poor decision to skateboard down a dangerously steep hill, without a helmet or any protective gear, even after being repeatedly warned by his friend not to, not the condition of the trailers.
The Court agreed with Defendant’s argument and granted summary judgment finding that discretionary immunity applied, that there wasn’t a physical defect in the trailers themselves, and that Defendant’s property was not a proximate cause of Plaintiff’s accident.