Patrick v. City of Elizabeth, 449 N.J. Super. 565 (App. Div. 2017). The Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3 (“TCA”), contains numerous immunities and other impediments for plaintiffs who seek to recover against public entities or public employees for tort-based injuries. Today’s opinion by Judge Currier, which affirmed summary judgment in favor of defendants City of Elizabeth and Elizabeth Board of Education, illustrates some of those immunities.
Plaintiff Bryce Patrick was eight years old at the time of the incident that led to this case. He and other children were crossing a street near a city park that is about one block away from an elementary school. There was a “Watch for Children” sign on the street in question. One car stopped to allow the children to cross the street, but another vehicle passed the stopped car and struck plaintiff.
Plaintiff and his mother sued the City and the Board of Education, alleging that the area of the accident was a dangerous condition and that the signage was not adequate to warn motorists of the presence of children. Both defendants moved for summary judgment.
The City asserted that there was no evidence of a dangerous condition or that the City had actual or constructive notice of a dangerous condition, assuming that one existed. The City also relied on TCA immunity for the City’s alleged failure to provide ordinary traffic signs, citing N.J.S.A. 59:4-5. The Board sought summary judgment on the ground that it did not own or control the street and had no responsibility for the placement or failure to place traffic signs. The Law Division agreed with defendants and granted summary judgment to both of them. Plaintiff appealed, but the Appellate Division affirmed.
Judge Currier applied the de novo standard of review to the Law Division’s legal conclusions, as required on summary judgment. She also observed that the standard of review in other respects is the same as the test that applies at the trial level: “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
In order to show a dangerous condition, Judge Currier stated, plaintiffs had to demonstrate “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” N.J.S.A. 59:4-1. Under N.J.S.A. 59:4-2, she noted, the dangerous condition must have “created a reasonably foreseeable risk of the kind of injury which was incurred.” N.J.S.A. 59:4-3(b) provides that a public entity has constructive notice of a dangerous condition if “the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” Finally, a public entity will not be held liable unless its action or inaction as regards the condition is “palpably unreasonable,” N.J.S.A. 59:4-2, a term construed by case law to mean “patently unacceptable under any circumstance.”
Affirming the Law Division, Judge Currier found that plaintiffs had not shown a dangerous condition. There was no history of similar accidents in the area. Plaintiffs cited prior accidents, but only one of those even involved a pedestrian, and that incident was nothing like what happened here. There had been no complaints about a lack of signage, and defendants were not “palpably unreasonable” in not placing additional signs near the school. N.J.S.A. 59:2-3(a) gives public entities discretion as to signage and immunizes them for such discretionary decisions.
There was also immunity as to the signage under N.J.S.A. 59:4-5, which immunizes public entities from claims arising out of alleged failure to provide “ordinary traffic signals, signs, markings or similar devices.” Plaintiffs argued that signs in a school zone are not “ordinary,” but Judge Currier did not see it that way. The TCA does not distinguish school zone signs from others, and Judge Currier cited examples where the Legislature had expressly imposed a higher standard of care in a school zone. That demonstrated an intent not to do so here.
The Board won affirmance for a different reason. It did not own or control the area of the accident, and N.J.S.A. 59:4-1(c) and 59:4-2 combine to limit public entity liability to property that the entity owns or controls. Plaintiffs contended that because the park was near a school, the Board had a duty to ensure that the City installed proper signage, but that argument foundered on N.J.S.A. 59:4-5, as previously discussed. Nor did the Board have any independent duty of care arising out of the fact that it knew the park might be used outside of school hours.
The TCA is a powerful shield for public entities in tort cases, as the Legislature intended. Today’s ruling shows that very clearly.