Plaintiff Svetlana Fakhroutdinov was struck by a car while waiting to cross from the entrance of RiverWalk Pathway, a pedestrian pathway in Foschini Park, owned by the City of Hackensack (“City”). There was no crosswalk at that location (on East Salem Road) to direct pedestrian traffic to and from the Park. She was struck by a car driven by defendant Miguel Bueno, who swerved to avoid hitting another car driven by Allen Farnham, who had stopped to allow her to cross. The issue in Petrocelli v. Bueno, 2026 N.J. Super. Unpub. LEXIS 1204 (App. Div. June 3, 2026) was whether the City had immunity for this accident under either the Tort Claims Act and/or the Landowners’ Liability Act.
Although there was no crosswalk, there were two signs adjacent to the roadway, which stated “DANGER ROAD AHEAD” to warn pedestrians who were leaving the park. Plaintiff was struck by the Bueno vehicle after he lost control of his car, drove off the road, and struck her while she was still standing off the side of the roadway in Foschini Park, waiting to cross the road. She suffered severe injuries due to the impact.
Plaintiff claimed that the location of the accident was in a dangerous condition due to the absence of pedestrian warning signs, adequate pedestrian right of way/crosswalks, and adequate speed limits. She alleged that the City maintained, operated, controlled, inspected, and supervised this roadway and knew of the dangerous condition.
The City filed for a summary judgment, arguing that it had immunity under the Tort Claims Act (“TCA”), N.J.S.A. 59:4-5, which provides immunity for the placement or non-placement of traffic signals, road signals, etc. The City also argued that it had immunity under the TCA because Plaintiff had failed to meet all the requirements to establish a “dangerous condition” under N.J.S.A. 59:4-2. Finally, it argued for immunity under the Landowners’ Liability Act, N.J.S.A 2A:42A-1 et. seq., (“LLA”) which provides immunity for recreational activities due to conditions of parkland.
The trial court agreed with some of these arguments and granted summary judgment to the City. It found that the City had partial immunity for the lack of signage per N.J.S.A. 59:4-5 but the Plaintiff’s theories of improper location and safe egress were not barred by this statute.
But, the trial court agreed with the City that Plaintiff had failed to show the existence of a “dangerous condition.” The court found that it was not reasonably foreseeable that a car would swerve off the road to avoid hitting another vehicle so as to strike Plaintiff while standing on the pathway. That scenario did not create a “dangerous condition” of the pathway. Nor, did the “danger” sign establish that the City had constructive notice that some physical attribute of the path was a “dangerous condition.”
Additionally, the trial court agreed with the City that the Landowners’ Liability Act also immunized the City for this accident. The court found that Plaintiff was engaged in a recreational activity at the time of the incident and those enjoying the benefit of the land for recreational purposes were subject to the immunity of the LLA.
This appeal ensued. The Appellate Division considered whether the City should have been granted immunity under both the TCA and/or the LLA.
The Court noted that, for a public entity to be liable under the TCA, the Plaintiff must prove that the condition of the property was in a dangerous condition, defined as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” The term refers to the physical condition of the property itself and not the activities on the property.
The Appellate Division agreed with the trial court that the pathway was not a dangerous condition. Rather, Plaintiff was injured due to the dangerous activity of a third party outside the Park. The placement of the pathway at the edge of East Salem Street did not cause her injuries. They were caused by defendant Bueno who was driving negligently on East Salem Street. Thus, the Court found that Plaintiff’s claims were barred under the Tort Claims Act.
The Court also agreed with the trial court that her claims were barred under the Landowners’ Liability Act. Landowners are exempt from liability for accidents on their property when a person is using their property for sports or recreational activities free of charge. For property to qualify for immunity under the Act, a court must consider the “dominant character of the land.” The Park with its playground, baseball fields, pedestrian walkways, free to the public, qualified as protected premises under the LLA.
Here, the Appellate Division agreed that Plaintiff was engaged in “recreational activities” in the Park as she walked through it and enjoyed the Park during a break from her students ice skating there. The Court took “judicial notice” that walking was a form of exercise and that would fit into a common definition of recreation. Hence, the Court also found that the City was immune from liability for Plaintiff’s accident under the Landowners’ Liability Act. The Appellate Division held that the trial court properly granted summary judgment to the City and affirmed the dismissal of the lawsuit as to the City.
