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Court Finds That Strict Liability Dog Bite Statute Applies While Plaintiff Visiting Dog Sitter at Defendants’ Home

Defendant homeowners’ dog, Ringo, a miniature bull terrier, bit plaintiff Joseph Bernstein while at their home.  At the time, he was visiting their dog sitter, who was caring for their dog while they were on vacation for two weeks.  The issue in Bernstein v. Nossel, 2023 N.J. Super. Unpub. LEXIS 681 (App. Div. May 5, 2023), was whether the strict liability dog bite statute, N.J.S.A. 4:19-16 applied when defendants had no knowledge that their dog sitter’s friend, the plaintiff, would be coming over to visit her.  Defendants contended that Plaintiff qualified as a “trespasser.”

In this case, plaintiff moved for a summary judgment on liability based upon the dog bite statute.  The trial judge denied both the motion and the plaintiff’s subsequent motion for reconsideration, finding that there was a fact issue whether plaintiff was lawfully on the premises.  That decision was appealed to the Appellate Division. 

Defendant Kerri Nossel had asked Sarah Shore to house-sit for them and care for their dog for two weeks in October 2019 while they and their children vacationed out of the country.  She knew Shore was not married.  She told Shore that a mutual friend named Judy could visit Shore in their home while she was house sitting but she did not tell Shore that she was forbidden from having any other visitors.

Toward the end of her house-sitting assignment, Shore invited plaintiff, her friend, over to the house.  Shore had texted plaintiff, telling him that she was dog sitting and that she was kind of stuck there and would love to have visitors.  Plaintiff understood that she was lonely and wanted to have some company.

When plaintiff arrived at the house, the front door was left open. He played with Defendants’ dog for about 45 minutes, after which, he advised Shore that he was exhausted and needed about 10 minutes to put his head down alone.  Shore told him to go upstairs and lie down in the bed and she would wake him up in 10-15 minutes.

Thereafter, Shore took Ringo out for a walk.  When she went upstairs to wake him up, the plaintiff was still in the bed.  The dog ran into the room, jumped on the bed, clamped his mouth onto plaintiff’s foot, shaking it back and forth.  Ringo bit through and broke plaintiff’s phalanx bone and a second toe.  He was subsequently taken by ambulance to a hospital where he had surgery and stayed for several days. 

Plaintiff filed this complaint, alleging that he had been invited to the defendants’ house by their dog sitter and was lawfully at the home when defendants’ dog repeatedly bit him, causing him severe and permanent injuries.  He claimed that defendants were strictly liable under the dog bite statute, N.J.S.A. 4:19-16.  In order to recover under this statute, a plaintiff must prove the following:

  • The defendant owned the dog;
  • The dog bit the plaintiff; and
  • The bite occurred while the plaintiff was in a public place or lawfully in a private place, including the property of the owner of the dog.

Thereafter, plaintiff filed for summary judgment as to the issue of liability.  He argued that he satisfied the statute’s three elements because defendants owned Ringo, Ringo had bit him, and he had been a lawfully-present guest in defendants’ house.

Defendants opposed that motion, arguing that there was an issue whether plaintiff was a trespasser because based upon plaintiff’s Orthodox Jewish faith and his knowledge of defendants’ faith, he could not reasonably have believed he belonged in their home, yet alone with Shore or in the upstairs bedroom.  Both plaintiff and defendants and Shore were all observant Orthodox Jews and defendants asserted that under Orthodox Jewish law, it “strictly prohibits unrelated single men and single women, like plaintiff and Ms. Shore, from being alone together in a secluded location, like defendants’ home, unchaperoned.”   

While plaintiff admitted that all parties were Orthodox Jews, he contended that the law of “Yichud,” prohibits a Jewish adult from being alone in a closed, locked space with another adult of the opposite gender if they are unmarried and if no other person might unexpectedly enter this space.”  Defendants, on the other hand, understood Yichud “as prohibiting a man and a woman from being together alone in a secluded location if they are unmarried and unrelated.”  Shore’s view of the concept of Yichud was that it was a very grey area in Jewish law that allowed an unrelated and unmarried man and woman to be in the same vicinity in the same house or the same room “as long as someone is able to come in and see what is going on . . . and as long as there’s not an extended period of time that they are in the same room.”

The trial court judge found that plaintiff had established the first two prongs of the dog bite statute.  The judge also found that defendants had not specifically limited the people Shore could invite to the home while she was housesitting, and that Shore had extended an invitation to plaintiff.  However, the judge referenced Yichud and found that “plaintiff’s knowledge of Jewish law raises a triable issue regarding his reasonable interpretation of the invitation” extended to him. Hence, the court found that there was an issue of fact, precluding a summary judgment.

Plaintiff filed an application with the Appellate Division for leave to appeal, which was granted.  Plaintiff argued that he had met all the elements of the dog bite statute and the judge made a mistake in denying his motion.  Further, he argued that the motion judge was confused on the issue of whether plaintiff’s presence in defendants’ home was lawful with the question of whether it was moral under Jewish law, an irrelevant consideration under the dog bite statute.

The Appellate Division disagreed with the motion judge that plaintiff’s knowledge of Jewish law created a genuine issue of material fact as to the third prong of the dog bite statute, thus concluding that the trial court judge made a mistake in denying plaintiff’s summary judgment motion.  Hence, the Appellate Division reversed and remanded the matter back to the trial court. 

The Appellate Division found that the third prong of the dog bite statute, whether a plaintiff was lawfully in a private place was to be broadly construed to “include all those who have express or implied permission to be on the owner’s property.”   That would include those lawfully on the property, including both invitees and licensees (including social guests), but not trespassers and “anyone whose presence is expressly or impliedly permitted on the property should be entitled to the protection of the statute.”

Under the facts of this case, the defendants retained Shore as their house and dog sitter.  They knew she was an unmarried woman but did not tell her she could not have guests and did not limit the type of guests she could have or where the guests could be in their house.  Shore did invite plaintiff over to the house and directed him to nap in the upstairs bedroom and the defendants’ dog bit plaintiff while in defendants’ home.

The Appellate Division rejected the trial court’s decision that the custom of Yichud, essentially converted plaintiff into a trespasser.  The Court pointed out that the record demonstrated that the parties did not have a common understanding or practice.  The Court found that plaintiff “reasonably believed” that the invitation permitted him to be where he was when defendants’ dog bit him.  The Appellate Division noted that “[n]othing in the record demonstrates plaintiff knew or should have known defendants had a different understanding and interpretation of Yichud that he and Shore had.”

Hence, the Appellate Division reversed and remanded for proceedings consistent with their opinion.

Employee Exclusion Bars Coverage For Injured Pool Worker Employee

Plaintiffs were a Condominium Association and a Management Corporation responsible for a condominium property whose pool was maintained by Preferred Pool Management, Inc. (“PPM”).  PPM employee James Visconti (“Visconti”) fell on Plaintiffs’ property while performing maintenance on the condominium’s pool in the course of his employment with PPM and allegedly suffered injuries.   In a state court lawsuit, Visconti asserted various tort claims (personal injury claims) against Plaintiffs, claiming that he was injured because Plaintiffs failed to keep the pool’s premises in a safe condition.  Plaintiffs joined PPM as a third-party defendant in the underlying tort action, seeking contribution and indemnification under the Pool Maintenance Contract.  The dispute in the federal court case of Harmon Cove IV Condominium Association, Inc. v. Indian Harbor Insurance Company, 2023 U.S. Dist. LEXIS 71960 (D.N.J. Apr. 25, 2023) was who should be responsible for the cost of defending Plaintiffs and any damages that might be awarded in the underlying tort action.

Defendants Indian Harbor Insurance Company (“Indian Harbor”) and Ohio Security Insurance Company (“Ohio Security”) each issued a general liability policy to PPM which had a blanket additional insured endorsement providing coverage to parties with whom PPM agreed in writing to add as additional insureds and Scottsdale issued an excess liability policy to PPM for damages covered by, but in excess of limits of, the Indian Harbor policy.  In the Pool Maintenance Contract, PPM agreed to add Plaintiffs as additional insureds to these policies.  Thus, Plaintiffs claimed that they were additional insureds under both the Indian Harbor and Ohio Security policies, as well as Scottsdale’s excess liability policy.

The issue before the court was whether Scottsdale owed coverage for the underlying tort claims. Scottsdale filed a motion before the District Court claiming that its policy did not provide coverage and the complaint should be dismissed as to it.

The Scottsdale excess policy contained an “Injury to Worker Exclusion” which excluded coverage for an injury to an “employee . . . of any insured . . . if such injury arises out of and in the course of their employment.”  This exclusion also expressly excluded from coverage any “obligation of any insured to defend, indemnify or contribute with another because of injury to  . . . [an] employee  . . . of any insured.”  As for additional insured coverage, it noted that such coverage would not be broader than coverage provided by the controlling underlying policy which, would be the Indian Harbor policy.

The District Court found that the Injury to Worker Exclusion in the Scottsdale Excess Policy unambiguously barred Plaintiffs from seeking coverage for Visconti’s injuries and Plaintiffs’ defense in the underlying tort action.  The complaint had alleged that Visconti was an employee of PPM and that, on the day he fell, PPM had directed him to perform pool service and maintenance work on the condominium’s pool.  Specifically, it alleged that Visconti was carrying a heavy bucket and containers of liquid shock while walking up wooden steps to the pool house when he suffered his injuries.

The District Court noted that the Injury to Worker Exclusion excluded from coverage any injury to an employee of any insured if such injury arose out of and in the course of their employment.  Although the Complaint alleged that Visconti was an employee of PPM, and not Plaintiffs, the Court found that the exclusion plainly applied here because it excluded coverage for employees of “any” insured, which included PPM’s employees and because the Complaint alleged that Visconti was injured in the course of his pool maintenance work for PPM.

The District Court found no ambiguity in the Injury to Worker Exclusion, nor any public policy reason for not enforcing it.  It found that it was written in plain terms and prominently featured in the policy.  Further, by plain terms, the Plaintiffs were precluded from seeking coverage that was broader than that provided to PPM.

Based upon all of these reasons, the District Court held that it must enforce the plain terms of the Injury to Worker Exclusion and dismiss Plaintiffs’ claims against Scottsdale, which had sought indemnification and defense from a party that it had no contractual obligation provide such coverage.  Hence, Scottsdale’s motion to dismiss was granted and Plaintiffs’ claims against Scottsdale were dismissed for a failure to state a claim. 

Joint Insurance Fund’s Self-Insurance Found Not To Trigger Other Insurance Clause

The issue in the Supreme Court case, Statewide Insurance Fund v. Star Insurance Co., 2023 N.J. LEXIS 205 (2023), was whether the Statewide Insurance Fund (the “Fund”) or Star Insurance Company (“Star”), a commercial general liability insurance company, had the primary responsibility to pay the settlement of a negligence claim brought against Long Branch.  This lawsuit involved a tragic accident in which a boy died from injuries while at the beach with his family in the City of Long Branch.  After the case settled, an insurance coverage dispute arose between the Fund and Star to determine which entity was responsible to pay the balance of the settlement after Long Branch paid its $1 million dollar self-retention under the Star policy. The issue was which policy was primary and which one was excess based upon their respective “other insurance” clauses.

The boy had been visiting the beach with his family in the City of Long Branch and dug a tunnel in the sand near a lifeguard stand.  Unfortunately, the sand collapsed on the boy and he died the next day from his injuries.

The boy’s parents filed a negligence action, suing Long Branch, Long Branch Beach Patrol, and seasonal beach police officers who were responsible for patrolling the area.  The underlying negligence action was settled but the payment of the balance of this settlement awaited the conclusion of this appeal.

The Supreme Court noted that Long Branch had joined the plaintiff Statewide Insurance Fund, which is a public entity JIF created under the Joint Insurance Fund Act. Through the JIF, Long Branch was entitled to receive $10 million dollars in liability coverage per each occurrence.  However, the Fund’s contracting document contained a clause which limited recovery from the Fund to liability in excess over other “insurance or self-insurance” coverage.  Thus, based upon this provision, Long Branch could recover from the Fund only after it exhausted any other insurance or self-insurance coverage to which it was entitled.

Long Branch had also purchased a commercial insurance policy from the defendant Star.  Under that policy, Long Branch had $10 million dollars in liability insurance coverage with a $1 million dollar self-insured retention (“SIR”).  Star’s policy had a provision making its coverage excess over “other insurance.”

Payment of the SIR was not an issue on this appeal.  That amount was paid to the plaintiffs.  The question in this case was whether the Fund or Star had the primary responsibility to pay the remaining settlement amount. 

At the trial court level, both Star and the Fund filed for a summary judgment.  The trial court granted the Fund’s motion and denied Star’s motion.  The trial court judge concluded that Long Branch’s membership in the Fund did not trigger Star’s “other insurance” clause.  Further, the judge determined that the Fund did not provide insurance coverage to its members.  Rather, Long Branch self-insured by joining the Fund.  Thus, the plaintiffs in the underlying negligence lawsuit could look to Star’s primary policy limits, above the SIR, for the balance of their settlement with Long Branch.

This matter went up on appeal to the Appellate Division.  The Appellate Division agreed with the trial court judge that the Fund was not an insurance company and that the Fund did not qualify as an insurer under New Jersey law.  The Appellate Division determined that Fund membership protected Long Branch against liability claims through “self-insurance” and it upheld the Fund’s summary judgment order.

The Supreme Court accepted this appeal upon petition for certification.  Star’s main argument was that, regardless of the statutory framework, the Fund issued what Star characterized as an insurance policy to Long Branch and is bound by its terms.  Under that purported policy, Star claimed that the Fund provided “insurance,” not “self-insurance.”  Thus, Star argued that its own “other insurance” clause is therefore triggered, making Star’s coverage excess to the “insurance” provided by the Fund. 

The Fund rebutted this argument based upon two reasons.  First, it asserted that the Legislature “explicitly exempted JIFs from insurance statutes and regulations, conclusively precluded JIFs from acting as insurers, and unambiguously declared that authorized JIF activities do not constitute the transaction of insurance or doing insurance business.”  Secondly, the Fund argued that because claims against Long Branch are satisfied from member assessments, rather than from an authorized insurance policy, Long Branch “self-insured – and retained risk by joining the Fund.”  Because its members protected against liability through self-insurance, rather than insurance, the Fund argued that Star’s “other insurance” clause would not be triggered and, therefore, Star should cover the damages that exceeded the SIR up to Star’s policy limit.  The Fund contended that it would only provide excess coverage after Star’s policy limit was exhausted.

The New Jersey Supreme Court reviewed the JIF enabling statute and found that the Fund was not an insurance company.  Rather, its authorized activities do not constitute either the transaction of insurance or doing the business of insurance.  More importantly, the Fund was not subject to the extensive insurance laws contained in New Jersey statutes.  Hence, the New Jersey Supreme Court ruled that JIFs cannot insure members.  Instead, “JIFs enable members to self-insure, spread risks, and reduce insurance costs.”

Thus, the Court rejected Star’s argument that general references to “insurance” in the Joint Insurance Fund Act “should be interpreted to mean that JIFs are providing insurance to their members.”  Further, the Supreme Court found that the word “insurance” in the Fund’s contracting documents do not override the Legislature’s clear mandate that JIFs are not insurance companies.  The Supreme Court found that “[a]s a matter of law, Long Branch’s liability protection as a Fund member is through ‘self-insurance,’ not insurance.”

The Supreme Court found that because self-insurance is not the same as insurance under the law and because membership in the Fund protected against liability claims rather than by insurance, the Supreme Court agreed with the trial court and Appellate Division that Star’s “other insurance” clause was not triggered.  Unlike the Fund’s contracting document, which specified that the Fund’s obligation were excess over “insurance or self-insurance,” the Court noted that Star’s clause states only that insurance coverage available under the Star policy is “excess over . . . any of the other insurance.”  The Supreme Court held that because Star’s clause did not encompass the self-insurance available to members through the Fund, Star’s insurance policy was primary in covering the underlying plaintiff settlement of the negligence action against Long Branch. 

Hence, the Supreme Court affirmed the Appellate Division decision.

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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.”

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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