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City and Board of Education Found Immune from Liability for School Child Struck by Car Crossing Road Near School

Eight year old plaintiff Bryce Patrick was crossing the street on his way to his elementary school when he was struck by a car. He was a block away from his school when the accident occurred. In the published decision of Patrick v. City of Elizabeth, 2017 N.J. Super. LEXIS 53 (App. Div. April 24, 2017), his parents, as his guardians ad litem, sued for his injuries, contending that the area was a dangerous condition and, because it was near a school zone, it should have had additional signage to prevent this accident.

Plaintiff claimed in this lawsuit that there were other accidents at this intersection and that both of the defendants were negligent due to the inadequate signage to warn motorists of the presence of children. However, there was one sign “Watch for Children,” posted on the street where the cars were driving.

The City argued that the plaintiff failed to prove the area was a dangerous condition or that it had actual or constructive notice of any such condition, both requirements to prevail on a claim under the Tort Claims Act. Further, the City argued that it had immunity for the failure to provide ordinary traffic signs under the Act’s immunity provision, N.J.S.A. 59:4-5.

As for the Board of Education (“BOE”), it argued that it did not own, control, or maintain the roadway on which the incident occurred, nor was it responsible for the placement of traffic signs. The plaintiff contended that the BOE should be liable because it was responsible for school property and claimed that the BOE must ensure that the public road outside the school was likewise safe.

The trial court agreed with the defendants’ arguments and dismissed as to both defendants. This appeal ensued.

The Appellate Division pointed out that none of the prior accidents at this intersection revealed any similar accident reported in this area. Also, there was no evidence of prior complaints to the City as to this area, nor were there any proofs presented to conclude “that defendants were palpably unreasonable in not placing additional signage in the area around the school, apart from the children crossing sign that was further down the street closer to the school.” The Appellate Division ruled that the type of signage and where to place the signage was within the discretion of the City and it is immunized under N.J.S.A. 59:2-3(a)(immunity to public entities for the exercise of judgment or discretion vested in the entity.)

The Appellate Division also found that the City had immunity under N.J.S.A. 59:4-5, which provides that a public entity is not liable for an injury caused by the failure to provide ordinary traffic signs. The Court rejected the plaintiff’s argument that a sign near a school zone should be considered to be other than an “ordinary” traffic sign.

As for the BOE, while the plaintiff conceded that the BOE did not own, control, or maintain the roadway, the plaintiff nevertheless argued that the BOE had a duty to maintain the area in a safe and suitable condition for use so that the children traversing the area could do so safely. However, the Appellate Division pointed out that to impose liability under the Tort Claims Act, there must be ownership of public property. Because it is undisputed that the BOE did not own the roadway where the accident occurred, it cannot be held liable for property that is owned by another entity that contains an allegedly dangerous condition.

The Appellate Division also rejected the plaintiff’s argument that the BOE should be required to ensure that the City installed property school area signage. There were no proofs presented that the BOE was responsible to install signage and, regardless, the Court ruled that the BOE would be similarly immune under N.J.S.A. 59:4-5 for the failure to install an ordinary traffic sign.

Hence, the Appellate Division affirmed the trial court’s decision to dismiss as to both defendants.

Appellate Division Finds Plaintiffs Fail to Meet Standard to File Late Notice of Tort Claim

By: Charles F. Holmgren, Esq. and Betsy G. Ramos, Esq.

To file a personal injury claim against a public entity, the Tort Claims Act requires that a plaintiff must file a notice of tort claim with that entity within 90 days of his/her accident. If no tort claim notice is filed within that time period, a claimant has up to one year to seek leave with the court to file a late notice of tort claim. However, the claimant must establish that extraordinary circumstances prevented his or her filing of this notice within that 90 day time period – which is a difficult standard to meet. In a case handled by our firm before the New Jersey Appellate Division, Silver v. Wang, 2017 N.J. Super. Unpub. LEXIS 441 (App. Div. Feb. 24, 2017), the Appellate Division ruled that even the death of the claimant is not an impediment to the court’s refusal to find extraordinary circumstances exist to relax the strict requirement of a timely filed notice of tort claim.

The accident in the Silver case occurred on April 11, 2014. There, Plaintiffs’ decedent Jennifer Peplinski died when her car swerved off of Route 130 in North Brunswick, New Jersey and struck a utility pole off the side of the road. On January 21, 2015, the Middlesex County Prosecutor’s Office and the North Brunswick Police Department issued an investigation report of the accident showing that Mrs. Peplinski’s car was struck by another vehicle that caused her to lose control of her car and strike the pole. On receipt of this report, Mrs. Peplinski’s adult children, the plaintiffs, met with an attorney on January 31, 2015, took steps to create an estate for her, and filed a motion for leave to file a late notice of tort claim. They argued that only when they received the report, well after the ninety day notice period, did they learn that that defendants Township of North Brunswick and the State of New Jersey could have been involved in their mother’s accident and, during that ninety day period, no estate existed in order to file a claim on their mother’s behalf.

The defendants opposed the motion. The defendants argued that the claimant learned nothing new from the investigation report pertaining to North Brunswick or the State; that, at the time of her death or soon thereafter, the plaintiffs knew Mrs. Peplinski died from striking a pole off of Route 130 in North Brunswick and, on these facts alone, they had sufficient information to file a timely tort claims notice and that the plaintiffs’ failure to do so alone fails to satisfy the extraordinary circumstances requirement of pertinent Tort Claims Act section, N.J.S.A. 59:8-9. Furthermore, the defendants argued that the Tort Claims Act makes clear that an estate did not need to exist in order for the plaintiffs to file a notice on the decedent’s behalf.

The trial court was unpersuaded by the defendants’ position and found that the totality of the circumstances showed that only when they received the report did the plaintiffs learn the facts of the accident and, based on those proofs, met the threshold intended by the Act. Furthermore, the court found that without an estate to file the claims notice, there would be no entity chargeable with the failure to file a notice. Thus, the trial court permitted the plaintiffs to file a late notice of tort claim. Both defendants appealed this order.

On appeal, the Appellate Division reversed. The two issues before the appellate court were whether the trial court abused its discretion in finding the plaintiffs demonstrated extraordinary circumstances to relax the ninety day statutory period and whether the plaintiffs could have filed a notice of tort claim on behalf of the estate before the estate was created.

The Appellate Division found that the plaintiffs never indicated what new information they learned from the investigation report that prompted them to pursue the claim on their mother’s behalf against North Brunswick and the State. The Court found that the plaintiffs only came to an understanding they had a claim against the defendants after they visited an attorney who then informed them that the utility pole, which may be owned by either defendant, could be too close to the road and thereby could have contributed to the decedent’s death. As there was nothing in the investigation report that set forth the proximity of the utility pole to the roadway, the investigation report did not provide them with any information they did not already have in their possession immediately after their mother’s death. Because the failure to seek an attorney or ignorance of the filing period fails to satisfy the extraordinary circumstances threshold, the Court determined the plaintiffs could not meet the strict standards required by the Act. Thus, the Appellate Division found the trial court erred in its decision to grant the plaintiffs’ motion to file a late tort claims notice.

Furthermore, the Tort Claims Act specifically states that a notice “shall be signed by the claimant or by some person on his behalf.” Indeed, no case interpreting the Act supported the plaintiffs’ claim that only an estate can file a notice. Hence, the Appellate Division also ruled that an estate need not be created before a notice of tort claims is filed on a decedent’s behalf.

Don’t Let Your Public Entity Client Get Tripped up by a Pothole

By way of background, a public entity is only liable for an injury proximately caused by a condition of its property within the limitations of N.J.S.A. 59:4-2.  To impose liability on a public entity pursuant N.J.S.A. 59:4-2, a Plaintiff must prove the following five elements: (1) a dangerous condition existed at the time of Plaintiff’s injury; (2) Plaintiff’s injuries were proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kinds of injuries that Plaintiff sustained; (4) the public entity created the dangerous condition or had notice of it a sufficient time prior to Plaintiff’s injury to have taken measures to protect against it; and (5) the public entity’s failure to take action to protect against the dangerous condition was palpably unreasonable.  Failure to prove all five elements defeats Plaintiff’s claim.

In order to satisfy the first element, a claimant must show that there was a dangerous condition, defined as a “condition of property that creates a substantial risk of injury” when the property is used with due care in a reasonably foreseeable manner.  N.J.S.A. 59:4-1a.  Courts interpreting this definition ask whether the condition created a substantial risk of harm to persons, generally, who would use the public property with due care in a foreseeable manner.

In a long line of cases, courts have held that minor imperfections on public travel-ways are not dangerous conditions under the Tort Claims Act because they do not pose a substantial risk of injury to the public.  Courts have so held notwithstanding the fact that the imperfections may directly cause Plaintiffs severe injuries or even death.

For example, in Polyard v. Terry, 160 N.J. Super. 497, 504, 507-08 (App. Div. 1978), aff’d o.b. 79 N.J. 547 (1979), a man drove his car over a three-eighths-inch declivity connecting a highway to a bridge, and then drove over a section of pavement that had comparatively less traction than the rest of the road.  As he drove over these two defective conditions, another car cut him off.  The man lost control of his vehicle, ultimately injuring one plaintiff and killing another.  In a subsequent lawsuit against the State, the Plaintiffs’ theory of the case — backed up by expert testimony at trial — was that the defective conditions of the road contributed to the man’s losing control of his car.  The jury agreed, and found the State thirty percent liable for causing the accident.  The Appellate Division (and the Supreme Court, which adopted the Appellate Division’s reasoning in its entirety) concluded that there was no dangerous condition within the Tort Claims Act notwithstanding that the jury reached a contrary conclusion, and notwithstanding that two defects in the road caused the Plaintiffs’ injury and death.  The Court explained that the Tort Claim Act establishes a threshold level of objective severity to make a defect actionable — defects falling below that threshold are not actionable as a matter of law.  The Court additionally held that a baseline number of defects must be tolerated in public property as being consistent with public expectations.

Another case rejecting the dangerousness of a condition that caused severe injuries is Charney v. City of Wildwood, 732 F. Supp. 2d 448, 452-53 (D.N.J. 2010).  There, a woman, while walking on the Wildwood boardwalk, tripped over a hole that was roughly shaped like a right triangle measuring approximately three and three-eighths inches long and one and one-half inch deep.  Even though the woman sustained multiple fractures, and even though there was evidence that the defendant had repaired adjacent wooden boards as well as the subject board in the past, the Court held that there was no dangerous condition as a matter of law.

Yet another example is Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 641, 643 (D.N.J. 1997) where a bicyclist sustained paralysis when his bicycle struck the property owner’s elevated railroad tracks, thereby launching him head-first over the handlebars and on to the street pavement.  The railroad track was raised between 5/8 and 7/8 of an inch above the roadway.  The court granted summary judgment finding that so slight a differential could not possibly be a dangerous condition creating a substantial risk of injury.  The court found that, that would impose an unfair onerous burden on the County to keep roadways free of even the slightest imperfections.  The court found further that even if one assumed that the small differential was a dangerous condition allowing such a difference could not possibly be found to be palpably unreasonable.

These three cases represent but a few of the many that hold that minor imperfections in public travel-ways are not actionable under the Tort Claims Act even if they do happen to cause substantial injuries.

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Plaintiff Asserting a Bystander Liability Claim against Public Entity Required to Comply with Notice Requirements of Tort Claims Act

Plaintiff Linda Alberts claimed that she suffered personal injuries when she fell from a bicycle while operating her bicycle on a bike path owned by defendant County of Atlantic. She alleged that the bike path was in a dangerous condition and sought compensation for her injuries. Her husband Randy Alberts (“Randy”), who witnessed her accident, attempted to assert an indirect claim for negligent infliction of emotional distress (Portee v. Jaffee claim). The issue in Alberts v. Gaeckler, 446 N.J. Super. 551 (Law Div. 2014)(approved for publication August 18, 2016) was whether her husband was required to file his own Tort Claims Act (“TCA”) notice before he could pursue the claim and, if a separate TCA notice was not required, does the 2 year statute of limitation bar his claim if filed after the expiration of the limitations period.

When plaintiff filed her TCA notice, she listed her husband as a witness but it did not contain any information that could be construed as Randy suffering injuries as a result of him being an eyewitness to her injuries. Randy did not file a separate TCA notice.

Shortly after filing the complaint, but more than 2 years after the accident, plaintiff filed a motion to amend the complaint to add a count alleging that Randy was entitled to compensation for the emotional injury he suffered in witnessing the injury to his wife. While the court granted the motion, it did not preclude any defenses to the amended complaint. Thereafter, the first amended complaint was filed, adding a claim for Randy based upon bystander liability. Defendant then filed a motion to dismiss the bystander liability claim for failure to state a claim.

Plaintiff opposed the motion, arguing that Randy had substantially complied with the TCA notification requirements because there had been general compliance with the notice requirements and defendant would not be prejudiced by the presentation of a Portee claim. The plaintiff relied up case law holding that, for a husband’s per quod claim, a separate TCA notice was not required.

The court rejected the argument that the TCA notice filed on behalf of plaintiff Linda Alberts substantially complied with the notice requirements of the TCA for the purpose of asserting a bystander liability claim. The court noted that there was nothing that would alert the defendant to the fact that Randy was making his own claim for negligent infliction of emotional distress.

The court distinguished a Portee claim from a claim filed by the injured party. A different investigation would be needed to determine whether a contemporaneous observation was made and whether the bystander required medical or psychological treatment due to witnessing the injury. Thus, the court found that, to pursue a Portee claim, Randy was required to file his own TCA notice. To rule otherwise would require a public entity to spend taxpayer funds to investigate every time a spouse was a potential witness just because there was a possibility a claim for bystander liability would be asserted.

As for the statute of limitations issue, the court determined that a Portee claim was a separate cause of action and not derivative of the underlying personal injury claim. This type of claim is different than a loss of consortium claim that is derivative of the claim of the injured spouse. Because this claim is an independent claim, the statute was not tolled by the lawsuit filed by his wife Linda. It did not relate back to the date of the filing of the original complaint. Thus, the court ruled that Randy’s claim was time barred by the failure to file it within the 2 year statute of limitations. Hence, for both of the above reasons, the court dismissed the count filed by Randy Alberts as to his Portee claim with prejudice.

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New Jersey School Districts Have Duty of Reasonable Supervision of Students at Dismissal

Since the New Jersey Supreme Court decided Jerkins v. Anderson, 191 N.J. 285 (2007), it has been clear that school districts remain responsible to supervise their students during dismissal. In Jerkins, the Court set forth three elements that define the scope of this duty. This duty was more recently revisited in McKinney v. Mathew, 2016 N.J. Super. Unpub. LEXIS 1543 (App. Div. June 29, 2016) in the context of an alleged duty to supervise before arrival at school.

In Jerkins, a nine year old child was dismissed early from school. He was in a “walking district” with no bus service. He usually walked home with a family member. His parents were unaware of the early dismissal. The minor left school unattended and went to play with friends. About 2 hours later, he was hit by a car several blocks from school. He was paralyzed as a result of the accident.

The plaintiffs argued that the school district breached their duty of reasonable supervision. The defendant school district claimed they had no responsibility for an accident that occurred after the child’s dismissal, blocks from the school. The Supreme Court disagreed with the defendant school district, finding that the school did have a duty to exercise reasonable care for the supervision of their students’ safety at dismissal.

The Court enunciated three elements that a school district must follow to fulfill its duty of care:

  • the school district must adopt a reasonable policy concerning dismissal and the manner in which students of different ages will be dismissed;
  • the school must provide adequate notice of that policy to all parents or guardians; and
  • the school must effectively implement that policy and adhere to parents’ reasonable requests regarding dismissal.

In the more recent case of McKinney v. Mathew, in an unpublished Appellate Division decision, the court reviewed the applicability of Jerkins to an accident in which a high school student was hit by a car while walking to school. The plaintiff, age 17, was struck by a car and injured while crossing in the middle of a block at an intersection near his school.

The plaintiff argued that the school district failed in its duty to supervise the minor on his way to school. He argued that the district should have had a crossing guard at this location.

However, the Appellate Division refused to apply Jerkins and expand a duty to supervise before arrival upon school property. The court considered the age of the minor (age 17) and noted that he was old enough to appreciate the risk and exercise due care. The court found that the rationale of finding responsibility at dismissal did not apply to the imposition of a duty before the student arrived at the school. Further, even if there was a crossing guard at this intersection, it would not have not prevented the accident because the minor crossed in the middle of the block. The court noted that it would have been futile to direct a resistant teenager to cross in the crosswalk. It would have been a burden to impose on the school a requirement for a crossing guard. For all of these reasons, the Appellate Division found that it would be burdensome to impose the duty of reasonable supervision upon the school district, requiring supervision before the student arrives on school property.

Hence, while recognizing the existence of a duty of reasonable supervision, the McKinney court refused to extend this duty to before school supervision. Regardless, this duty remains applicable upon dismissal.

Based upon Jerkins, school districts must formulate and adopt a specific policy governing dismissal practices. It must include sufficient detail about the adult supervision and patrols present during dismissal, the assigned duties and locations of those adults at dismissal, and procedures for early dismissal days.

Once adopted, the school district must notify the parents of the dismissal policy. Additionally, the school district must inform the parents what supervision will be provided by the school district at the end of the school day and what supervised after school services, if any, are available. Finally, the school district has to adhere to its adopted policy, which includes compliance with the parent’s instructions about releasing a child to walk home alone. If these steps are followed, a school district will satisfy its duty of reasonable care in the dismissal of its students.

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Res Ipsa Loquitur: the Thing Speaks for Itself… Unless the Thing We’re Speaking of Involves a Public Entity

By:  Jessica M. Anderson, Esq.

Res ipsa loquitur is not available in an action against a public entity grounded upon a dangerous condition of public property.  Rocco v. New Jersey Transit Rail Operations, Inc., 330 N.J. Super. 320, 339-40 (App. Div. 2000).  The Tort Claims Act requires proofs beyond those necessary for a res ipsa loquitur inference.

Similarly, the “mode of operation” rule, which permits a rebuttable inference of negligence where a business owner could reasonably anticipate that dangerous conditions would routinely arise from the customary method and manner in which he operates his business, does not apply to a public entity.  Application of that rule would not only broaden the circumstances under which a public entity could be held liable for a dangerous condition beyond those provided by N.J.S.A. 59:4-2 but would also impermissibly shift the burden of proof to the public entity.  Carroll v. New Jersey Transit, 366 N.J. Super. 380, 389-90 (App. Div. 2004).

In the recent unpublished Appellate decision, Chen v. New Jersey Transit, 2014 N.J. Super. Unpub. LEXIS 1480 (App. Div. June 20, 2014), in which this author represented Defendant, Plaintiff suffered an injury to her hand requiring internal fixation surgery when a metal object the size of a softball struck her while she was standing on the platform of the Edison train station. Two witnesses stated that the metal object either fell off or was kicked up by a passing train.  The trial court judge granted summary judgment, finding that Plaintiff could not demonstrate a prima facie case against New Jersey Transit, and failed to prove the elements necessary to establish dangerous condition liability under the New Jersey Tort Claims Act.  Plaintiff appealed, arguing that, as an invitee, Plaintiff vaulted the summary judgment threshold under the doctrine of res ipsa loquitur or the mode of operation doctrine.  The Appellate Division affirmed the trial court’s decision granting summary judgment, holding that res ipsa loquitur and the “mode of operation” rule do not apply to personal injury claims against public entities based upon the existence of an alleged dangerous condition of public property.

Filing an Internal Affairs Complaint with Police Department Not “Substantially Comply” with Tort Claims Act Notice Requirement

By: Betsy G. Ramos

Plaintiff Malik Macklin alleged that three Camden County Police Officers used excessive force when they assaulted and arrested him without probable cause as he was walking down the street and, as a result, he suffered injuries. Less than one month later, he reported the incident to the Camden County Police Department’s internal affairs department. Approximately 2 years later in Macklin v. County of Camden, No. 15-7641, 2016 U.S. Dist. LEXIS 83581 (D.N.J. June 28, 2016), the plaintiff filed suit in federal court against the three officers, along with the County, the police department and the chief of police, alleging claims under the federal and New Jersey constitutions, as well as various state law tort claims. The defendants filed an initial motion to dismiss the state law claims, arguing that the plaintiff’s complaint should be dismissed due to his failure to file the required notice under the New Jersey Tort Claims Act (“TCA.”)

Plaintiff claims that he was walking home after a basketball game when he was stopped by a police car with several police officers inside. The encounter escalated from questioning to the officers allegedly, without provocation, throwing plaintiff to the ground and assaulting him with punches and kicks until Plaintiff’s family members came to the scene. Plaintiff was arrested and charged with resisting arrest, aggravated assault, obstruction of justice, and eluding an officer of the law, but he was later exonerated by a jury. Plaintiff claims to have suffered bodily injuries, emotional distress, and pain and suffering.

Shortly after the incident occurred, the Plaintiff and his mother filed a complaint with the Camden County Police Department. His mother complained that her son was arrested but that he was targeted and mistreated physically. Additionally, Plaintiff reported the excessive force incident to a detective in the Office of Internal Affairs. About 2 years after the incident, the Plaintiff filed suit, asserting claims for excessive force and negligent hiring and training under the United States and New Jersey Constitutions, as well as common law tort claims for assault, negligence, and abuse of process.

The defendants filed a motion to dismiss for failure to state a claim as to the state law claims on the basis that the Plaintiff failed to comply with the notice requirement of the TCA. The TCA bars claims against public entities unless specific information concerning the claim is presented to the public entity within 90 days of the claim’s accrual.

These specific notice requirements serve several purposes. They allow the public entity to investigate the claim when the facts are fresh, provide the opportunity to settle meritorious claims, and afford them an opportunity to correct the conditions which give rise to the claim, and inform the entity in advance as to the expected liability that it may be expected to meet.

It is undisputed that the Plaintiff did not file a notice of claim with the Camden Police Department. However, the plaintiff and his mother did make written and verbal complaints. The question before the court was whether those complaints substantially complied with the TCA’s notice requirement.

Plaintiff argued that the complaints lodged by him and his mother to the Internal Affairs Department substantially complied with the notice requirement because they informed the Camden County Police Department of the specifics of his claim within 90 days of the incident. He also claims that, in their complaints, he described his injuries. Further, it was sufficient for IA to conduct an investigation of the officers’ alleged misconduct.

However, the District Court found that, notwithstanding the specificity of the report to the police department, the written complaints did not substantially comply with the notice requirement because they failed to give notice of a potential civil suit for damages and the amount of the damages claimed. The purpose behind this notice requirement is not only to allow the public entity time to investigate the claim but also to advise the public entity of the intent to make a claim. Such information permits the public entity sufficient time to prepare a defense, preserve evidence, examine its liabilities and indebtedness, and settle meritorious suits.

Here, the complaint to the Internal Affairs department makes no mention of civil liability. It was just a request for the police department to look into an alleged incident of misconduct of its officers. The court noted that not every civilian complaint to the police department results in the filing of a civil lawsuit and the defendant is not required to interpret the Plaintiff’s complaint to investigate an incident as an indication of future litigation.

Accordingly, the District Court found that the filing of the complaints with the Internal Affairs department did not substantially comply with the notice requirements of the Tort Claims Department. Hence, the defendants’ motion to dismiss the state law claims was granted.

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.

  • Articles

Municipality Found Not Liable for Fall on Boardwalk Based upon Snow Removal Immunity

By Betsy G. Ramos, Esq.

Plaintiff Kimberly Walter was attending a fireworks display on New Year’s Eve when she slipped and fell on the Ocean City boardwalk. Although it had not snowed that day, it had snowed between 5 to 10 inches a few days earlier. City employees cleared a pathway on the boardwalk for the festivities. While walking toward the music pier, the plaintiff fell, fracturing both wrists. In Walter v. City of Ocean City, 2016 N.J. Super. Unpub. LEXIS 613 (App. Div. March 22, 2016), the plaintiff argued that the common law snow removal immunity afforded to the City should not bar her claim and appealed the summary judgment order granted to the defendant City.

The Appellate Division noted that municipalities have no duty to clear snow and ice from the streets. Often, just attempting to clear snow and ice creates new perils in the form of obstructive snow piles and melting water that refreeze on walkways.

The Court explained that the common law doctrine of snow removal was “born out of a recognition that complete ‘broom-swept’ snow clearance is unrealistic, and even negligent snow removal is better than no snow removal.” Further, this immunity recognizes that municipalities face a difficult task of prioritization following a snowfall and protects them from the “limitless liability” that could result if they could be liable to every person injured from ice and snow on a municipality’s streets and highways.

The common law snow removal immunity has traditionally applied to plowed streets, driveways, and sidewalks. Plaintiff contended that it should not apply to a boardwalk which is fundamentally different from a sidewalk or street because there is no emergency traffic and shops are mostly closed during the winter. Further, it is not contiguous to the street.

However, the Appellate Division found that the boardwalk is maintained by Ocean City and open to pedestrian traffic year round. Thus, when allocating scarce snow removal resources, Ocean City must necessarily include the boardwalk among the areas it must consider. Thus, it is different from a public housing development (which would not be able to utilize this immunity) because the boardwalk does not represent a discrete area with its own maintenance staff.

Plaintiff also argued that Ocean City’s actions were so egregious that the court should not apply snow removal immunity. The plaintiff contended that Ocean City had notice that many visitors would attend the boardwalk New Year’s Eve and the extra burden of salting and sanding would have been minimal. However, the Appellate Division rejected this argument, finding that such a conclusion would have been contrary to its prior decisions.

As the Supreme Court pointed out in a prior case, “the usual traveling conditions following a snowfall are obvious to the public. Individuals can and should proceed to ambulate on a restricted basis, and if travel is necessary, accept the risks inherent at such a time.”

Accordingly, the Appellate Division rejected the plaintiff’s arguments and upheld the order granting summary judgment to Ocean City, dismissing the case

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