School Board Found Not Liable for Injury that Occurred Due to Fall from Slope in Property

Plaintiff Patricia Eak stumbled while walking down a slope at Central Regional High School to watch her son play baseball on the junior varsity field. As a result, she fell and broke her ankle. In Eak v. Central Regional School District, 2019 N.J. Super. Unpub. LEXIS 685 (App. Div. March 26, 2019), the issue was whether the unimproved grassy slope of the field could constitute a dangerous condition under the Tort Claims Act.

Plaintiff arrived at the school, parked in an adjacent lot to the field, crossing the parking lot and a driveway. Next, she stepped over a curb, onto a grassy downward slope, and began walking toward the bleachers on the third-base side. As she walked down the slope, the plaintiff stumbled and broke her ankle.

The plaintiff filed suit against the school and the Board of Education for her injuries. At the trial court level, the defendants filed a motion for summary judgment, which was granted. This appeal ensued with the plaintiff claiming that it should have been a jury question whether the property was a “dangerous condition” under the Tort Claims Act. The Appellate Division agreed with the trial court and affirmed the order granting summary judgment.

The Court noted that the grassy area where plaintiff fell was an unimproved condition of the school’s property. As such, the immunity under N.J.S.A 59:4-8 would apply. Pursuant to that provision: “[n]either a public entity nor a public employee is liable for an injury caused by a condition of any unimproved public property….” Under Troth v. State, 117 N.J. 258, 269-70 (1989), the New Jersey Supreme Court held that public property is improved “when there has been substantial physical modification of the property from its natural state, and when the physical change creates hazards that did not previously exist and that require management by the public entity”.

While the playing fields and some of the surrounding areas had been improved through the addition of steps and walkways to the fields, the Court found that no similar changes to the grounds between the parking lot and the junior varsity field had been made. Making improvements elsewhere did not transform the unimproved area into an improved area.

Plaintiff was injured on a slope which was a natural part of the school’s landscape. Hence, the Appellate Division found that no liability attached to the defendants for this unimproved portion of its property.

The plaintiff also argued that the slope constituted a dangerous condition under N.J.S.A. 59:4-2.  To establish liability via this provision, the plaintiff must show that a public employee either created the dangerous condition or had actual or constructive notice of the condition in time to have taken measures to protect against the dangerous condition. Further, the plaintiff must show that any steps taken by the public entity to protect against the dangerous condition were palpably unreasonable.

While the plaintiff did provide an expert report, the expert did not opine that the condition of the property was dangerous, only that it could have been made safer. Further, while the expert made reference to standards for accessible design enacted pursuant to the ADA, claiming that the degree of incline was improper, the Court noted that the plaintiff did not claim to be disabled and the expert did not assert that the degree of the incline was dangerous.

The Appellate Division pointed out that it was being asked to consider unimproved, not improved property, and the “open and obvious” gentle slope leading to this ballfield was not dangerous. Even if there was some notice to the school district of the alleged dangerous propensity, “it cannot be said that defendants’ failure to do anything to change the contour of the property or install steps or railings was palpably unreasonable.”


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.


Court Dismisses Pothole Case against County

Plaintiff Luz Cruz (“Cruz”) tripped and fell in a pothole when crossing River Avenue in Camden, New Jersey. She broke her fifth metatarsal of her left foot and sued the County of Camden for her injuries. In Cruz v. Camden County, 2019 N.J. Super. Unpub. LEXIS 385 (App. Div. Feb. 19, 2019), one of the issues was whether the County had prior notice of the pothole.

Cruz and her friend drove a U-Haul truck to pick up a couch in an apartment on River Avenue, a County owned road. They parked the truck across the street from the apartment. They did not see a pothole while walking to the apartment. As they were carrying the couch to the truck, Cruz stepped into the pothole in the middle of the road and fell. About two months after the accident, plaintiff’s expert measured the pothole as about 18 inches in length, 6 inches wide, and 3 inches deep.

The County had no prior notice of this pothole’s existence. The County’s Department of Public Works (“DPW”) employees are tasked with looking for potholes and repair them upon their discovery. In addition, the County has a dedicated phone line and email address for complaints as to potholes or other road problems. Also, police, fire, and public safety personnel will report road problems. However, no complaints had been called in as to this particular pothole or on this block of River Avenue in the 10 years before the accident.

As for constructive notice, plaintiff was unable to establish how long the pothole had been present. Cruz had been there the year before at the same address and did not notice the pothole. Plaintiff retained an expert who did not determine or estimate when the pothole had formed.

The County filed a motion for summary judgment, arguing that the plaintiff had failed to show that the County had actual or constructive notice of the pothole, as required under the Tort Claims Act to prove a claim against a public entity for a dangerous condition. The trial court agreed and granted the motion, finding that the plaintiff was unable to prove any time frame for the pothole or that the pothole was “of such an obvious nature that the public entity, in exercise of due care, should have discovered the condition and its dangerous character.”

The plaintiff appealed to the Appellate Division, arguing that the County had actual or constructive notice of the pothole and failed to repair it and that the County’s failure to maintain a major County road was palpably unreasonable. The Appellate Division rejected these arguments and upheld the trial court’s decision.

The Appellate Division noted that public entity liability is restricted under the Tort Claims Act. For liability to attach for an injury caused by a dangerous condition, a plaintiff must establish that a public entity “had actual or constructive notice of the dangerous condition” in “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

The Court agreed with the trial court that there was no actual notice. The question was whether the plaintiff had proven that the County had constructive notice of the pothole. To prove constructive notice, the plaintiff must establish “that the condition existed for such time that the [County], in exercising due care, should have discovered the condition and its dangerous condition.” The Appellate Division found that was no evidence of how long the pothole existed before the accident. Hence, the plaintiff could not prove constructive notice either. Without such notice, the Court found that the plaintiff’s claim fails.

The Appellate Division also found that the County’s inaction in repairing River Avenue was not palpably unreasonable. The plaintiff failed to show that it was not palpably unreasonable for the County to fail to fix a pothole that was harmless for a vehicle to pass over to prevent a pedestrian to trip over in a portion of the road that was not a designated crosswalk.

This case is illustrative of the difficulty that plaintiffs face in pursuing pothole claims against public entities. Because potholes can pop up in a day, depending on weather conditions, unless the public entity has actual notice of the pothole, it can be very difficult for a plaintiff to prove constructive notice.


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

Claim Against City of Newark Due to Failure to Provide Police Protection Barred by Immunity under Tort Claims Act

By: Jack Hagerty, Law Clerk

On August 4, 2012, plaintiff, Patricia Ruff, was walking with her daughter and grandchildren to a reunion hosted by Hayes Home Family Organization (Hayes) at the West Kinney Vocational High School playground in Newark, New Jersey, when disaster struck. Plaintiff was shot by an unknown assailant. Plaintiff later sued Newark in tort, asserting the City was responsible for a lack of police protection. Ruff v. Gardens, 2017 N.J. Super. Unpub. LEXIS 1699 (App. Div. July 11, 2017).

As plaintiff approached the playground, two women yelled somebody had a gun and everyone began to run. Feeling “a pinch” in her arm, plaintiff yelled for her grandchildren to keep running before feeling the bullet, which left her “knocked out cold.” In all, plaintiff was shot three (3) times: once in the arm, once in the breast, and once in the back.

Newark had issued a permit for the Hayes reunion to be held at the playground and had also arranged for a police officer to be present from 12:00 p.m. to 8:30 p.m. When plaintiff was shot, she was not on Newark property. Plaintiff could neither identify her shooter, nor indicate from where the shots originated. However, she argued the shooter was located on Newark property at the time of the shooting; thus, exposing Newark to liability.

Newark moved for summary judgment. The trial court denied Newark’s motion, identifying the disputed location of the shooter at the time of the incident as a material fact which precluded the court from granting summary judgment. Newark moved for reconsideration. The trial court also denied that motion. Finally, Newark moved for leave to appeal the order denying summary judgment and the Appellate Division granted Newark’s motion for leave.

On appeal, Newark argued the trial judge’s denial of summary judgment was error because Newark was entitled to immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. The statute provides, in relevant part: “[n]either a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” N.J.S.A. 59:5-4. This exception has been interpreted to preclude suits against public entities “based upon contentions that damage occurred from the absence of a police force or from the presence of an inadequate one.” Suarez v. Dosky, 171 N.J. Super. 1, 9 (App. Div. 1979). Accordingly, Newark contended, the location of the shooter was not a material fact. Therefore, the dispute in question could not warrant a denial of summary judgment, because even if the shooter were on Newark property, the statutory immunity would apply.

Turning to case law, the Appellate Division noted the guiding principle of the Tort Claims Act is that “immunity from tort liability is the general rule and liability is the exception.” Coyne v. Dep’t of Transp., 182 N.J. 481, 488 (2005). Further, the court noted that, in New Jersey, it is public policy that a public entity will only be liable for negligence as set forth in the Tort Claims Act. Finally, the court restated the legislative purpose behind the Tort Claims Act “is to protect the public entity’s essential right and power to allocate its resources in accordance with its conception of how the public interest will best be served, an exercise of political power which should be insulated from interference by judge or jury in a tort action.” Rodriguez v. N.J. Sports & Exposition Auth., 193 N.J. Super. 39, 43 (App. Div. 1983).

At oral argument, Plaintiff conceded her claim against Newark was based on the alleged failure to provide police protection at the time of the incident. In light of this concession (which squarely placed plaintiff’s claim within the Tort Claims Act immunity) and the court’s finding that the location of the shooter was not a material fact for purposes of denying summary judgment, the Appellate Division reversed and remanded for the entry of judgment of dismissal in favor of Newark.

Township Found Not Liable to Pedestrian for Injury Resulting From Tripping Over Depression in Middle of Roadway While Jaywalking

By: Betsy G. Ramos

The Plaintiff Patricia Shilinsky “Shilinsky” went to visit her son at his home on Abbott Avenue in Ridgefield. She parked her car across the street from his home. As she jaywalked across the street, she tripped and fell on a depression in the middle of the roadway. In Shilinsky v. Borough of Ridgefield, 2016 N.J. Super. Unpub. LEXIS 949 (App. Div. Apr. 26, 2016), Shilinsky sued Ridgefield for her personal injury, claiming that the Township negligently failed to maintain and repair the roadway. The issue on appeal was whether the Township’s failure to repair the roadway was “palpably unreasonable.”

This depression ran almost the entire length of the block. The portion of the depression upon which plaintiff tripped was as least 28 inches long, at least 8 inches wide, and 3 inches deep. The plaintiff’s son testified that he had previously complained to the Township’s Department of Public Works about the unevenness of the roadway. Plaintiff also presented evidence that the depression had existed for 2 years before her fall and that is was likely seen by the Township’s DPW Superintendent before her fall.

The trial court granted the Township summary judgment based upon the Tort Claims Act defenses as to lack of notice and dangerous condition. The plaintiff appealed the dismissal of her suit to the Appellate Division.

Upon appeal, the Court noted that the injury occurred while the plaintiff was jaywalking across the middle of the block. The Appellate Division factored in this illegal jaywalking in determining whether the plaintiff had satisfied the elements of the Tort Claims Act so as to be able to pursue her claim.

In rendering its decision on appeal, the Court did not even reach the issue of notice or whether the depression constituted a dangerous condition. The Appellate Division found that Ridgefield’s inaction in repairing this roadway was not “palpably unreasonable,” as defined under the Tort Claims Act. The term “palpably unreasonable” means behavior “that is patently unacceptable under any given circumstances.”

The Court compared this situation to the facts in the Supreme Court case of Polzo v. County of Essex, 196 N.J. 569 (2008), in which the county was held not liable for a fatal accident that occurred when a bicyclist lost control of her bike while riding in a 2 foot wide depression on the shoulder of a county road. The Appellate Division found that a pedestrian illegally jaywalking across the roadway in the middle of the block was similar to the bicyclist’s use of the shoulder in Polzo. Both were using the roadway in a manner for which it was not designed.

The Supreme Court in Polzo emphasized that a roadway is ordinarily used for vehicular traffic and built and maintained for vehicles, not pedestrians. Potholes and depressions are a common feature of our roadways. Further, the Court in Polzo noted that not every defect in a highway is actionable.

Similarly, the Appellate Division found in Shilinsky that the Court’s analysis as to a bicyclist’s use of a shoulder, which was not designed or legal for such use, equally applicable to a pedestrian illegally jaywalking across the roadway in the middle of the block. The inherent dangers facing a jaywalking pedestrian in a roadway would not be faced by an operator of a motor vehicle who would pass harmlessly over a depression, which might cause a pedestrian to trip.

The Appellate Division found that the plaintiff failed to show that Ridgefield was palpably unreasonable because it did not allocate its limited resources to repair a depression in the middle of the street so that it would be safer for pedestrians to cross there. The Court noted that public entities do not have the resources to remove all roadway dangers peculiar to pedestrians.

Ridgefield presented evidence that its failure to fix this roadway was as a result of allocating limited resources to other high-need areas prior to the plaintiff’s fall. Plaintiff tried to argue that it would not have been that costly to simply fill in the depression with a half-ton of asphalt.

The Appellate Division held that the courts do not have the authority or expertise to dictate to public entities the ideal form of road inspect and repair program. It found that, ultimately, Ridgefield had the discretion to allocate its limited funds to projects that were of higher priority. Hence, the Court found that the plaintiff failed to meet her burden to establish that Ridgefield conduct was palpably unreasonable and upheld the summary judgment granted to the Township.

This case points out the viability of the palpably unreasonable defense when dealing with an injury caused by a condition of public property that was not repaired or maintained, despite the public entity’s prior knowledge of the condition. In defending such a claim, one should focus on how the public property was being utilized at the time of the accident, whether the public entity was aware of the alleged defect, and, if so, the rationale as to why it was not repaired. If the public entity can establish that the defect was not repaired due to limited resources that were allocated to more pressing needs, these facts can be used to establish a viable allocation of resources defense.  When coupled with the palpably unreasonable defense, a public entity should have a very defensible claim.

Township Found Not Liable for Fatality Caused by Falling Tree Limb from Tree on Township’s Right-of-Way

By: Betsy G. Ramos

Tragically, James Connor was killed when he was clearing snow from his driveway and a 25 foot tree limb from a Bradford Pear tree fell on him, killing him instantly. The tree was located in the right-of-way owned and controlled by the Township of East Brunswick. In Connor v. Township of East Brunswick, 2016 N.J. Super. Unpub. LEXIS 921 (App. Div. April 20, 2016), the plaintiff Michael Connor (the Executor of the Estate of James Connor) sued the Township for this fatality. He claimed that the Township was not immune from liability under either the Tort Claims Act or the Shade Tree Commission Act, had actual or constructive notice of the dangerous condition of this tree and, thus, should be liable for the fatal injury inflicted by the tree’s limb to the decedent James Connor.

Bradford Pear trees had been planted by municipalities in the 1980’s and early 1990’s for shade. However, they turned out to have a genetic flaw which caused them to split apart. As a result, their mature tree branches would stress and break off from their trunk, risking serious or fatal injury to people nearby.

Sometime after the trees had been planted but, before this accident, the Township learned of this defect. The Township’s trees were maintained under its shade tree program managed by its Recreation Department. The program was fully compliant with the requirements set forth in the New Jersey Shade Tree and Community Forestry Assistance Act (“Community Forestry Act”).

The defendant Township filed a motion for summary judgment. The trial court judge found that the Township was immune from liability as a volunteer participant in a community forestry program and, therefore, was immune from liability under the Tort Claims Act provision, N.J.S.A. 59:4-10(shade tree commission immunity). The judge also concluded that the Township was immune under the Tort Claim Act’s provision, N.J.S.A. 59:2-3(a) and (d)(immunities for discretionary activities).

The Appellate Division disagreed that the Township would be immune under N.J.S.A. 40:64-14, as a volunteer participating in the Community Forestry Program, or have immunity under N.J.S.A. 59:4-10 (immunity provided to a shade tree commission or a member of the shade tree commission).

In reviewing the Community Forestry Program statute, the Appellate Division concluded that the Township did not qualify as a “volunteer.” It found that the Township is a municipal governing body, not a person providing volunteer services. Likewise, the court found that the Township was not immune under the Tort Claims Act, N.J.S.A. 59:4-10. It was not a shade tree commission, member of a shade tree commission or volunteer participating in a community forestry program. This provision in the Tort Claims Act did not provide immunity to the local government.

Next, the plaintiff argued that the Township also had no immunity under the Tort Claim Act provision, N.J.S.A. 59:4-2 (dangerous condition of public property) because the Township was aware of the inherent dangerous condition posed by the Bradford Pear trees and was negligent in not removing the tree before the branch caused the Connor fatality. The Plaintiff contended that this knowledge met the notice requirement under the Tort Claims Act. Plaintiff further argued that the question whether the Township’s decision not to remove the tree was “palpably unreasonable” was a fact sensitive inquiry which should have been decided by a jury.

The Appellate Division noted that there was nothing in the record to indicate that this particular tree was in a dangerous state. The Township did have a proactive program in which it conducted yearly inspections and removed hazardous or dead trees. Plaintiff’s contention, however, was that because the Township knew that the Bradford Pear trees had inherent dangers, it should have removed all of them.

The Court found that this contention was unreasonable and refused to find that this knowledge created constructive notice on the part of the Township. Further, the Appellate Division held that, even assuming that the Plaintiff could establish notice, it still had to establish that the Township’s action or inaction as to the tree was “palpably unreasonable.”

The Court noted that “palpably unreasonable” had been defined as “behavior that is patently unacceptable under any given circumstances.” It further found that palpably unreasonable conduct “implies a more obvious and manifest breach of duty than negligence.”

Here, the Township did have a yearly inspection program for its trees, which was a discretionary activity. With the Township’s limited resources, the Appellate Division held that it was not within their power to impose an “ideal” tree inspection program on the Township. There was no reported problem either with this tree or any tree in this neighborhood. The Court found that the Township’s program was not unreasonable. Hence, it concluded that no rational factfinder could find that the Township was palpably unreasonable for its failure to remove this tree which caused the decedent Connor’s death. Thus, it upheld the trial court’s dismissal of this matter.

Jersey City Found Not Liable for Accident Resulting from Plaintiff’s Motorcycle Striking its Fire Hydrant

By Betsy G. Ramos, Esq.

Public entities can be liable if they create or allow a dangerous condition to exist on their property. In Bunero v. City of Jersey City, 2015 N.J. Super. Unpub. LEXIS 2784 (App. Div. Dec. 3, 2015), plaintiff George Bunero was injured when his motorcycle was struck in the rear by the defendant DaSilva’s motorcycle, propelling plaintiff’s motorcycle to the side of the road and up the curb. The plaintiff’s right leg struck the nozzle cap of the City’s fire hydrant, located on the sidewalk, causing plaintiff to suffer a leg fracture. The plaintiff sued the City on the basis that the fire hydrant was improperly placed and constituted a dangerous condition.

The City filed a motion for summary judgment, arguing that the fire hydrant did not constitute a dangerous condition of property. The trial court judge concluded that the hydrant was not a dangerous condition and that the City’s actions as to the hydrant were not palpably unreasonable.

Upon appeal, the plaintiff argued that the motion judge erred by granting summary judgment to the City. The plaintiff contended that he had presented sufficient evidence to support his claim against the City.

The Appellate Division found that the motion judge had erred by determining that the fire hydrant was not a dangerous condition. According to the plaintiff’s expert, the nozzle cap of the hydrant was only 1.5 inches from the curb line, which was less that the six inches recommended by the American Water Works Association (“AWWA”), as stated in 1938. In 1970, the AWWA published a statement recommending a set-back of 2 feet from the curb line to the point of the hydrant nearest the curb and that remained the standard in 2010.

Thus, the Court found that the plaintiff did present sufficient evidence from which a reasonable jury could conclude that the hydrant’s proximity to the curb line posed a danger to a person on a motorcycle who veers close to the curb line. Further, a jury could find that the hydrant created a reasonably foreseeable risk of the kind of injury which was incurred.

However, the Appellate Division agreed with the trial court judge that a reasonable jury could not find that the City’s action or inaction with regard to the hydrant was “palpably unreasonable.” Under the Tort Claims Act, a plaintiff has the burden of demonstrating that a public entity acted in a palpably unreasonable manner with regard to an alleged dangerous condition, which is a more onerous showing then ordinary negligence. Here, it was undisputed that the hydrant had been at its location since at least 1939. No evidence had been presented that the hydrant had been the cause of any incident or injury in that time.

Further, the City’s engineer testified that, based upon the City’s diagrams and his own analysis, the City probably could not have installed the subject fire hydrant further from the roadway, due to the adjacent property line and he location of the water main. Although the plaintiff insisted that the movement of the fire hydrant further back from the cub line was not impossible, he failed to show that the City’s failure to do so was a course of action or inaction that “no prudent person would approve of.”

The court considered that the City had thousands of fire hydrants on its properties and it was unclear how many of them were in close proximity to the roadways. However, it noted that the subject fire hydrant had been at its location for more than 70 years, apparently without any reported complaint or injury. Undoubtedly, the City had considerable responsibility for the maintenance of it properties and limited public resources for that purpose.

Hence, the Appellate Division concluded that a reasonable jury could not find that the City’s failure to move the hydrant further away from the roadway was palpably unreasonable. Accordingly, it affirmed the trial court’s order for summary judgment, dismissing the complaint.

Township Found Not Liable For Fall on Residential Driveway Apron Due to Snow Removal Immunity

By: Betsy G. Ramos

Plaintiff Rosa Nappi slipped and fell outside the defendant Gregory Kohl’s residence on his driveway apron. She sued Kohl and the Town of Secaucus, where the Kohl property was located, for her personal injuries. In Nappi v. Town of Secaucus, 2015 N.J. Super. Unpub. LEXIS 64 (App. Div. January 12, 2015), the plaintiff claimed that both the homeowner Kohl and the Town should be liable for her injuries. The issue on appeal for the Town was whether it was entitled to snow removal immunity and whether it could be liable for a driveway that it allegedly owned or controlled.

It was undisputed that the Town plowed the snow and that it inadvertently plowed the snow into Kohl’s driveway apron. The Town’s unofficial snow removal policy was to avoid plowing snow onto sidewalks and driveway aprons but the Town admitted that there have been incidents where snow from plows might have been accidentally pushed onto sidewalks and driveway aprons. The Town administrator pointed out, that in an urban environment, sometimes this plowing is an unfortunate consequence.

The plaintiff also retained an engineering expert who opined that the driveway’s apron was a 26% slope, which is greater than the 12 ½% slope permitted by New Jersey’s building code. Both defendants denied constructing the driveway and it was unknown when it was constructed or what standards would have been in effect at that time.

The Town was granted summary judgment based upon the well recognized common law snow removal immunity enunciated in the case of Miehl v. Darpino, 53 N.J. 49 (1968). The plaintiff appealed, claiming that the Town was not entitled to this immunity and it should be liable because it owned or controlled the driveway apron.

The Appellate Division found that the trial court properly granted the Town summary judgment based upon snow removal immunity. This immunity was not abrogated by the Tort Claims Act.

There is an exception to the application of this immunity if the public entity’s snow removal activities might result in hazardous conditions different in character from the dangers ordinarily expected from the snowstorm. The creation of such conditions would necessarily involve palpably unreasonable conduct by a public entity that was separate and distinct from its snow removal functions.

The appeals court agreed with the trial court that the Town’s conduct in plowing the snow onto the driveway apron while clearing the street was not of such extreme or different in character from dangers ordinarily expected from a snow storm or palpably unreasonable conduct. Having snow end up on driveways and sidewalks is an unavoidable consequence of plowing snow. Further, the Town’s ordinance requiring homeowners to clear snow from walkways and driveways abutting their property also indicates that the Town took additional steps to mitigate the dangers from snowfall and snow removal.

The Appellate Division also found the plaintiff’s argument unpersuasive that the Town should be liable because it owned or controlled the driveway. There were no facts that the Town constructed the driveway apron or that it had actual or constructive notice of the purported improper slope of the apron.

Thus, the appeals court found that summary judgment was properly granted to the Town.

School District Found Not Liable for Child Burned on Radiator

By Betsy G. Ramos, Esq.

The minor plaintiff Ashanti Atkins, age 6, a first grader at Lincoln School in Newark, was burned by a radiator in the girl’s bathroom. She had climbed onto the 26 inch high uncovered, cast-iron radiator to look out the window, her foot slipped, and her leg became wedged behind the radiator. As a result, she suffered third-degree burns on her leg. In Atkins v. State-Operated School District of Newark, 2014 N.J. Super. Unpub. LEXIS 2430 (Oct. 14, 2014 App. Div.), she sued the Newark School District (“District”), claiming that the radiator was a dangerous condition of its property.

The plaintiff’s claim was subject to the immunities of the Tort Claims Act (“TCA”). The trial court concluded that the radiator was in a physical condition for what it was intended – to heat the room – and there was no evidence that it was palpably unreasonable for the District to leave the radiators uncovered, as they were when they were originally installed.

The plaintiff argued to the Appellate Division that an uncovered, cast-iron radiator placed in a restroom used by children as young as Atkins does qualify as a dangerous condition under the TCA and that it was palpably unreasonable for the District to leave it uncovered.

The Appellate Division pointed out that New Jersey has rejected the approach that a dangerous condition looks to the effects – that whenever danger exists, so does a dangerous condition of property. Here, the hotness of the radiator is essential to the only purpose served by the fixture – to heat the room. It is not designed to be a step-stool.

There was no evidence that anyone was ever injured by accidental contact with the radiator and the plaintiff was unable to establish that the District had actual or constructive knowledge of the need to protect a child from wedging his or her limb behind a radiator in the bathroom. Further, the plaintiff was unable to establish that it was palpably unreasonable to forego covering these radiators or for the District to fail to warn children who might enter a room with an uncovered radiator that it is hot. Thus, the Appellate Division affirmed the dismissal of the complaint.

This case also highlights that a “dangerous condition” under the TCA will only exist when that condition creates a substantial risk of injury “when such property is used with due care in a manner in which it is reasonably foreseeable to be used.” Thus, when analyzing a premises TCA case, one must consider not only the condition of the property but how was it used by the plaintiff when the injury occurred. Its use should be scrutinized to determine if the use was with “due care” in a foreseeable manner. If not, a public entity will have a valid defense under the TCA.

School Board Found Not Liable for Fall on School Property

By Betsy G. Ramos, Esq.

Laurie Ortiz Guerrero sued defendant Toms River Regional Schools Board of Education due to a fall on an icy school walkway. Plaintiff argued that the exception to the immunity provisions in the Tort Claims Act, as set forth in the New Jersey Supreme Court in Bligen v. Jersey City Housing Authority applied to the facts. In Guerrero v. Toms River Regional Schools Board of Education, 2014 N.J. Super. Unpub. LEXIS 1971 (Aug. 8, 2014 App. Div.), the Appellate Division disagreed and affirmed the trial court’s dismissal of the lawsuit.

Plaintiff, while walking between classes, decided to go outside to avoid the crowded hallways. As plaintiff exited the building, she noticed that it was icy everywhere but she was unable to get back into the building. She fell on the ice, breaking her ankle and lower leg.

Plaintiff contended that the defendant’s employees were negligent in allowing the property to contain a dangerous condition at the time of her accident. Further, she contended the Bligen exception applied and, thus, the defendant could not claim immunity for snow removal activities.

Bligen had modified the well-established common law public entity immunity for snow removal activities as to a municipal landlord. In Bligen, a tenant fell on an icy driveway of a public housing authority. The court deemed a public housing authority to have the same standard of care to their tenants as did other commercial landlord and did not permit the common law snow removal activity to shield the conduct of the defendant housing authority.

Plaintiff argued that a public school should be subject to the same responsibility as a housing authority. Even though the school was a smaller, self-contained area, this argument ignored the underpinnings of Bligen, which related only to a municipal landlord’s common law tort liability. Without a clearly established landlord-tenant relationship, the courts have refused to classify a public entity as akin to a commercial landlord to fit it within the Bligen exception.

Hence, the Appellate Division refused to apply the Bligen exception and found that the defendant Board of Education remained immune from this suit based upon the common law snow removal immunity.

N.J. Appellate Division Affirms Summary Judgment on Liability Waiver

On October 31, 2014, the New Jersey Appellate Division affirmed the Trial Court’s grant of Summary Judgment in the case of Steinberg v. Sahara Sam’s Oasis, et al.  In its 2-1 decision, the majority affirmed the 2013 dismissal of all injury claims against the owner of an indoor water park arising from an accident on a water ride because plaintiff had signed a Liability Waiver.


A 44 year old psychologist sustained a serious spinal cord injury while riding a simulated surf machine called the FlowRider inside the indoor water park in Berlin, N.J.  The FlowRider’s design uses high powered water jets to create a continuous water flow up an inclined membrane to simulate an ocean wave.  Riders are given the option of riding a “boogie board” on their stomach or standing up like a surfer.  Most riders ride the wave on their stomach.  Riders standing on the board usually “wipe out” for the first few times until they learn to balance on the rushing water flow.  Prior to entering the ride, all riders of the FlowRider are required to sign a liability waiver which acknowledges the physical risks of riding the FlowRider and releasing Sahara Sam’s from all liability.  Plaintiff was recorded on closed circuit security video reading and signing the two-page document prior to riding the FlowRider and being given a special wrist band indicating he had signed the waiver before riding the FlowRider.

Plaintiff opted to ride the FlowRider standing up his first time.  He was shown on video being instructed by the attendants on how to position his feet and balance while the board was on the dry deck and the use of a tether rope.  Plaintiff stood on the board while the attendant slowly pushed the board into the water flow.  Plaintiff held one end of a tether rope for balance but moments after the attendant released the end of the board, plaintiff pitched forward from his standing position and landed on the top of his head in the shallow water flow.

Plaintiff fractured several cervical vertebrae and bruised his spinal cord.  He underwent emergency spinal fusion and was rendered was an incomplete quadriplegic until he was rehabilitated to the point where he could walk without any assistance.


The plaintiff filed suit in N.J. Superior Court Camden County against the owner and operator of the water park, the inventor of the FlowRider, the builder who installed the ride, as well as several component manufacturers.  The other defendants settled with plaintiff at mediation.  Sahara Sams Oasis, represented by Christopher J. Hoare, Esq. and Laura M. Danks, Esq. of Capehart Scatchard filed a motion for summary judgment based on N.J. Supreme Court decision in Stelluti v. Casapenn Enterprises, 1 A.3d 678, 203 N.J. 286 (2010).  The trial court granted Sahara Sams’ motion for summary judgment finding that the facts in the FlowRider case were on all fours with the Stelluti decision.  Plaintiff appealed.

In Stelluti, a patron of a health club injured herself during a spinning class after signing a membership application which contained liability waiver language.   The N.J. Supreme Court applied general contract principles to liability waivers and held that under New Jersey law, release of liability contracts signed by adult patrons who voluntarily use recreational and fitness facilities are generally enforceable.  The exceptions to the applicability of such waivers are: (1) contracts of adhesion, (2) contract which violate  public policy, or (3) where there is evidence of willful or gross negligence.  New Jersey is unique among many states such as California and New York, both of which disfavor liability waivers as against public policy.


In his appeal, Steinberg argued that Stelluti should not apply to the Steinberg accident because Sahara Sams’ employees had not given adequate verbal instructions to the plaintiff prior to his ride and that this constituted gross negligence.  Plaintiff also cited a later edition of the FlowRider operators’ manual that had been published by the manufacturer after the date of installation of the ride at Sahara Sams which contained an additional warning sign that was not in place on the day of the accident.  The N.J. Appellate Division held no exceptional circumstances existed and that waiver signed by plaintiff was enforceable.   In a 29 page opinion, the majority  analyzed the language of the waiver signed by Mr. Steinberg, the video of waiver signing, the conduct of Sahara Sams’ employees, and the numerous warning signs and messages around the FlowRider.  The panel noted that the New Jersey Department of Community Affairs, which licenses all amusement park rides in the state, had reviewed and approved the FlowRider’s design, manual, and warning signage shortly before the accident.  The panel found no evidence of gross negligence on the part of Sahara Sams or its employees.   The majority also rejected Steinberg’s claims that the FlowRider lacked additional signage and rider instructions recommended by the inventor and manufacturer of the ride in subsequent editions of the Operations Manual for the FlowRider.  The panel noted that riding the FlowRider was not required and that as an adult, plaintiff knew the risks of serious physical injury and voluntarily released Sahara Sams from liability.

A lone dissenting opinion held that factual issues as to gross negligence were present in the case and would have reversed the trial court’s grant of summary judgment and remanded the case for trial.

Sahara Sam’s was insured by First Mercury Insurance and defended by the Christopher J. Hoare, Esq. and Laura M. Danks, Esq. of  Capehart Scatchard at the trial level and on appeal.  Laura Danks, Esq. argued the case for Sahara Sams.  The Plaintiff was represented by the law firm of Saltz Mongelluzzi at the trial level and Fox Rothschild on the appellate brief.

For a full copy of the appellate opinion or more information, please contact Christopher J. Hoare, Esq. at choare@capehart.com.

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