Liability

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.

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.

FACTS

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.

PROCEDURAL HISTORY

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.

THE APPELLATE DECISION IN STEINBERG

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.

By: Betsy G. Ramos, Esq.

Plaintiff Miguelina Hernandez was injured when she slipped and fell on snow and ice while walking in the parking lot of the Raritan Bay Mental Health Center, which is owned and operated by Middlesex County. The trial court found that the defendants, as public entities, were shielded from liability under the common law snow removal immunity and granted summary judgment, dismissing the complaint. In Hernandez v. County of Middlesex, 2014 N.J. Super. Unpub. LEXIS 2041 (App. Div. Aug. 18, 2014), the plaintiff, however, argued that the immunity should be unavailable based upon the Bligen v. Jersey City Housing Authority exception.

In Bligen, the Supreme Court created an exception to this snow removal immunity. The plaintiff had fallen in the driveway of the Jersey City Housing Authority. The Court found that the Housing Authority, as a municipal landlord, owed the same duty of care as a private landlord. Thus, the Court held that the Housing Authority was not immunized from liability for failing to prevent foreseeable injuries, including those caused by snow or ice. The Court also recognized that the property of the Housing Authority was limited and finite, making the removal of snow and ice from its property “relatively manageable.”

In Hernandez, the plaintiff argued that because the parking lot area adjacent to the Health Center was also limited and finite, the defendants should not be permitted to utilize the common law snow removal immunity to protect them from liability. However, it was not disputed that the County actually owns many other properties, in addition to the Health Center.

The Appellate Division noted that it would be “impractical and prohibitively costly” to require the County to remove all snow and ice from its driveways, parking lots, and walkways.” Further, the court stated that the Health Center was neither a public housing authority, nor a municipal landlord.

Thus, the Appellate Division found that the narrow exception to the snow removal immunity created in the Bligen case did not apply. Hence, the appeals court upheld the trial court’s order finding that the public entity defendants were immune from liability.

By: Betsy G. Ramos, Esq.

Charlotte Robinson walked across school grounds as a short cut to reach a local diner. As she walked across the grounds, a stray dog, owned by a neighboring resident, attacked her, causing her injuries. The attack occurred on a Saturday when school was not in session, nor when a school event was ongoing. In Robinson v. Vivirito, 2014 N.J. LEXIS 243 (2014), Robinson sued the school district and its principal on the basis that they had a duty to protect her from a known dangerous dog. This appeal to the New Jersey Supreme Court determined whether the school district and its principal could be liable for this attack.

This dog had slipped its leash before and had attacked a passersby, and the school principal had notice of the incident. The plaintiff contended that the principal and the school district had a duty to prevent future attacks.

The Appellate Division found that a duty did exist to take measures to prevent entry of a known dangerous dog onto school property. However, the Supreme Court reversed, finding that a school principal owes no duty of care to a third party who decides to use school property after hours for personal purposes and is injured by a stray animal that is neither owned nor controlled by school personnel.

The Court looked at whether the harm to plaintiff was foreseeable and whether recognition of a duty of care to plaintiff under these circumstances comports with considerations of fairness and public policy. While the Court recognized that the principal could have called the police or the animal control officers during the week, neither the principal nor the school had any control over the dog or activities on the neighboring property. Moreover, once the school day ended, the principal had no ability to monitor conduct on or near school grounds.

Further, in looking at other factors, the Court noted that there was no relationship between Robinson and the school. She was a trespasser and it was her unilateral decision to use the school yard as a short cut.

While Robinson certainly had a claim against the dog’s owner, a non-owner has no ability to control the location and behavior of the neighbor’s dog. The principal’s actions to prevent an encounter would be limited to calling the police or animal control. As a result, the Court found no public interest in imposing a duty of care on school personnel to protect persons with no relationship to the school from attacks by a neighbor’s dog. Otherwise, it would render the school an insurer of the negligent behavior of others, which is contrary to the Tort Claims Act. Accordingly, this case was dismissed.