(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 22, 1997 -- Decided July 7, 1998
POLLOCK, J., writing for the Court.
In this appeal, the Court considers the extent to which the reasonableness of a claimant's use of
public property is relevant to the determination whether the condition of a public entity's property was
dangerous.
Seventeen-year-old Dennis Garrison, was injured at about 9:30 p.m. on November 19, 1989, while
playing touch football on an illuminated parking lot owned by Middletown Township (“Middletown”) and
adjacent to a New Jersey Transit station. Although no one on behalf of Middletown gave the players
permission to play football on the parking lot, during previous games there, patrolling police officers had not
told the players to stop. Garrison and his friends used the lot because it was lighted and because the lines
demarcating the parking lot served as boundaries.
Before the game began, Garrison and the other players knew that the area in the vicinity of the
“sidelines” had an uneven surface or declivity. He and his friends, however, agreed to try to avoid the
uneven pavement. After playing for about an hour, Garrison was injured while rushing the quarterback and
evading a blocker, when he planted his foot on the area the players had been avoiding.
Garrison sued both Middletown and New Jersey Transit alleging that they had negligently allowed a
dangerous condition to exist in the parking lot and that the condition caused his injury. Both moved for
summary judgment, which was ultimately granted. In granting Middletown's motion, the Law Division held
that Middletown neither intended nor anticipated Garrison's use of the parking lot, that Garrison knew that
the pavement was uneven in the area where the accident occurred, and that the uneven pavement was not a
“dangerous condition” as defined by the New Jersey Tort Claims Act (“the Act”). Garrison appealed from
the judgment in favor of Middletown.
The Appellate Division reversed, finding that the use of the parking lot as a football field was
foreseeable and concluding that although Middletown could assert Garrison's negligence as an affirmative
defense, his negligence would not constitute a lack of due care sufficient to bar his claim.
The Supreme Court granted Middletown's motion for summary judgment.
HELD: Touch football on a poorly lit uneven railroad station parking lot constitutes a use of public
property that is, as a matter of law, “without due care,” and Garrison therefore has not proved that the
property created a substantial risk of injury to the general public when used with due care.
1. The New Jersey Tort Claims Act establishes a system for public entities in which immunity from tort
liability is the general rule and liability is the exception. ( pp. 4-5)
2. By its terms, the Act explicitly requires that a dangerous condition can be found to exist only when the
public entity's property “is used with due care.” When a condition is dangerous to all users, a claimant
may be able to establish the existence of a dangerous condition, regardless of his or her own negligence.
(pp. 5-8)
3. The cases construed under the California Tort Claims Law, after which the New Jersey Act was modeled,
confirm that the language “used with due care' implies a standard of objective reasonableness, and a use
that is not objectively reasonable from the community perspective is not one “with due care.” ( pp. 8-12)
4. When property owned by a public entity poses a danger to all users, an injured party may establish that
property was in a dangerous condition notwithstanding his or her failure to exercise due care. In that case, a
claimant's negligence more appropriately relates not to the determination whether the property was
dangerous, but to the issues of proximate causation or comparative negligence. (pp. 12-13)
5. Proof of a claimant's due care, like proof of the physical condition of property, is a threshold
requirement under the Act. That a claimant's conduct relates also to proximate causation and comparative
negligence does not preclude its relevance to the determination whether the property was in a dangerous
condition. (pp. 14-15)
6. When construing the Act, courts seek to follow the legislative mandate favoring the immunity of public
entities. The Legislature made a conscious policy choice to exclude public entities from liability for people
who engage in unreasonable activities on public property. (pp. 15-16)
Judgment of the Appellate Division is REVERSED.
JUSTICE STEIN filed a separate concurring opinion in which JUSTICE O'HERN joins. Although
Justice Stein agreed with the Court's judgment, he believed that the Court's analysis and rationale will
generate confusion and imprecision in the conduct of Tort Claims Act litigation. Justice Stein would have
dismissed Garrison's claim on the bases that the declivity was not a proximate cause of his injury and that
Garrison failed to establish that Middletown's conduct in respect of the declivity was palpably unreasonable.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, GARIBALDI, and COLEMAN join in
JUSTICE POLLOCK's opinion. JUSTICE STEIN has filed a separate concurring opinion, in which
JUSTICE O'HERN joins.
SUPREME COURT OF NEW JERSEY
A-
12 September Term 1997
DENNIS GARRISON,
Plaintiff-Respondent,
v.
TOWNSHIP OF MIDDLETOWN,
Defendant-Appellant,
and
NEW JERSEY TRANSIT,
Defendant.
Argued September 22, 1997 -- Decided July 7, 1998
On certification to the Superior Court,
Appellate Division.
Bernard M. Reilly argued the cause for
appellant (Dowd & Reilly, attorneys).
Steven L. Kessel argued the cause for
respondent (Drazin and Warshaw, attorneys).
The opinion of the Court was delivered by
POLLOCK, J.
The New Jersey Tort Claims Act (Act), N.J.S.A. 59:4-1a,
defines a “dangerous condition” on the property of a public
entity as “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.” This appeal questions the extent to which the
reasonableness of a claimant's use of property is relevant to the
determination whether the condition of the public entity's
property was dangerous. The Law Division granted the motion for
summary judgment of defendant, Township of Middletown
(Middletown). In an unreported opinion, the Appellate Division
reversed. We granted the Middletown's petition for
certification,
147 N.J. 579 (1997). We reverse the judgment of
the Appellate Division and reinstate the Law Division's judgment
of dismissal.
Because this matter arises on defendant's motion for summary judgment, we accept plaintiff's version of the facts and give plaintiff the benefit of all favorable inferences. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995); Judson v. People Bank & Trust Co., 17 N.J. 6 (1954). The underlying accident occurred on a Middletown parking lot adjacent to a New Jersey Transit station. At night the lot is illuminated. Middletown also owns thirty-five parks, many of which have football fields. Two of the parks have lighting.
Plaintiff, Dennis Garrison, was injured at about 9:30 p.m. on November 19, 1989, while playing touch football on the parking lot. No one on behalf of Middletown gave permission to the
players to play football on the parking lot. During previous
football games on the parking lot, patrolling police officers had
not told the players to stop. Plaintiff and his friends used the
lot because it was lighted and the lines demarcating the parking
spaces served as boundaries.
Before the game began, plaintiff knew that the area on which
he was playing had an uneven surface or declivity. In that area,
which was about twenty-one feet from one of the “sidelines,” the
paved part of the lot was one and one-half inches lower than
adjacent broken gravel.
Plaintiff, who was just a few weeks away from his
seventeenth birthday at the time of the accident, nonetheless
decided to play night football on the lot. He and his friends
agreed to try to avoid the uneven pavement. They also agreed not
to start any plays in that area. After they had been playing for
about an hour, however, plaintiff tried to rush the quarterback
on the opposing team. While trying to evade a blocker, plaintiff
ran from the pavement to the adjacent area, planted his foot on
the uneven surface, and damaged his knee.
Plaintiff sued both Middletown and New Jersey Transit
alleging that they had negligently allowed a dangerous condition
to exist in the parking lot and that the condition caused his
injury. Both defendants moved for summary judgment. Ultimately,
the Law Division granted both motions. Although plaintiff did
not appeal from the judgment of dismissal in favor of New Jersey
Transit, he did appeal from the judgment in favor of Middletown.
In granting Middletown's motion, the Law Division reasoned
that Middletown neither intended nor anticipated plaintiff's use
of the parking lot, that plaintiff knew that the pavement was
uneven in the area where the accident occurred, and that the
uneven pavement was not a “dangerous condition” as defined by the
Act.
The Appellate Division reversed, determining that the Law
Division had misconstrued the Act by focusing on the intended use
of the parking lot. According to the Appellate Division,
plaintiff's use of the property as a football field was
foreseeable. Although Middletown could assert plaintiff's
negligence as an affirmative defense, his negligence would not
constitute a lack of due care sufficient to bar his claim. The
Appellate Division concluded that plaintiff presented sufficient
evidence of Middletown's actual or constructive knowledge of the
defective condition, and of the unreasonableness of Middletown's
actions concerning the defective condition, to preclude summary
judgment for Middletown.
The Act establishes a system for public entities in which immunity from tort liability is the general rule and liability is the exception. Bombace v. City of Newark, 125 N.J. 361, 372 (1991). Thus, the Act sets forth as its purpose:
[I]t is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in
accordance with the fair and uniform
principles established herein. All of the
provisions of this act should be construed
with a view to carrying out the above
legislative declaration.
To recover under the Act, a plaintiff must prove, among
other things, that at the time of the injury the public entity's
property was in a dangerous condition, that the condition created
a foreseeable risk of the kind of injury that occurred, and that
the condition proximately caused the injury. N.J.S.A. 59:4-2.
Even then, the Act imposes no liability on a public entity if
“the action the entity took to protect against the condition or
the failure to take such action was not palpably unreasonable.”
N.J.S.A. 59:4-2.
Essential to the determination of a public entity's tort
liability is the definition of the statutory term “dangerous
condition.” The Act defines a “dangerous condition” as “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. 59:4-1a. By its terms, the Act explicitly requires that a dangerous
condition can be found to exist only when the public entity's
property “is used with due care.”
The issue in the instant case is not whether Middletown
intended the parking lot to be used for night football games.
Rather, the issue is whether the declivity in the parking lot
created a substantial risk of injury when the property was used
with due care. So stated, our analysis focuses not on
plaintiff's individual conduct, but on whether playing night
football on a paved parking lot with a known declivity
constitutes a use of the property with the care that was due.
If a public entity's property is dangerous only when used
without due care, the property is not in a “dangerous condition.”
Accordingly, in Speziale v. Newark Housing Auth.,
193 N.J. Super. 413, 417 (App. Div. 1984), the Appellate Division reversed a jury
verdict for the plaintiff because she failed to show that two to
three inches of rain water on the floor created a substantial
risk of injury when the property was used with due care. The
plaintiff slipped and fell while attempting to step from a
staircase over a pit filled with water onto a single step leading
into a laundry room. Id. at 415. Because the plaintiff could
have sought assistance or waited for the water to abate, she had
not used the property with due care. Id. at 417. Hence, the
condition of the property did not constitute a dangerous
condition, and the case should not have been submitted to the
jury for a determination of contributory negligence. Ibid.
Although the plaintiff's lack of due care negated a finding
of a dangerous condition, the Appellate Division emphasized that
a plaintiff's contributory negligence will not ordinarily
immunize a public entity from liability. Id. at 418. The
Appellate Division reasoned that such a conclusion would be
contrary to N.J.S.A. 59:9-4, which provides that a plaintiff's
negligence shall not bar her claim unless her negligence is
greater than that of the public entity. Id. at 418-19. The
court indicated that, when a condition is dangerous to all users,
the plaintiff may be able to establish the existence of a
dangerous condition even though he may have been contributorily
negligent:
For instance, let us assume that a county
constructs a straight road which abruptly,
without warning signs or indicia, veers at a
45 degree angle. That condition could be
said to create a substantial risk of injury
when used in the darkness with due care by
driver generally in a manner reasonably
foreseeable that it will be used. However,
the individual driver who traverses such a
road at an excessive rate of speed while
embracing a companion may still be found
culpable of contributory negligence by a
jury.
Similarly, in Hawes v. New Jersey Dep't of Transp., 232 N.J. Super. 160, 164 (Law Div.), aff'd, 232 N.J. Super. 159 (App. Div. 1988), the Law Division granted summary judgment in favor of New Jersey Transit and held that unprotected railroad tracks did not constitute a dangerous condition. In that case, a train struck and killed the decedent as he tried to cross a railroad track. Id. at 161. Plaintiff, the administratrix of decedent's estate, argued that New Jersey Transit, although it knew trespassers regularly used the crossing, created a dangerous condition by failing to erect a fence or take other protective measures. Ibid. The Law Division rejected the argument, finding that anyone using the railroad's property with due care would not encounter a substantial risk of harm. As the court stated,
common sense dictates that a person using due
care would make certain no trains were
approaching before walking across a railroad
track. Exercising even a minimum of care, a
person should be able to eliminate any chance
of being hit by a train. Accordingly, [the
railroad's] property did not constitute a
dangerous condition.
Finally, in Lytle v. City of Newark,
166 N.J. Super. 191,
192 (Law Div. 1979), the parties' automobiles collided in an
intersection in which the traffic lights were not working. Aware
that the traffic lights did not work, plaintiff nonetheless
proceeded through the intersection after she saw the traffic
light a block ahead turn green. Id. at 195. She claimed that
the broken lights constituted a dangerous condition. Id. at 193.
The Law Division granted a judgment of dismissal in favor of the
city of Newark. It concluded that the manner in which she
proceeded “indicates that the property was not used with due
care. As such, a dangerous condition could not have existed.”
Ibid. Additionally, the Law Division noted that the plaintiff
failed to demonstrate “how the absence of a traffic control
signal in any way contributed to the accident.” Ibid.
Because the California Tort Claims Act was the model for the
Act, we often consider interpretations of that Act when
interpreting our own. Levin v. County of Salem,
133 N.J. 35, 46
(1993). Consideration of California law is appropriate here
because the definition of “dangerous condition” in the California
statute, Cal. Gov't Code § 830a, is nearly identical to that in
N.J.S.A. 59:4-1a. The California Law Revision Commission's
Comment to Cal. Gov't Code § 830 explains:
A condition is not dangerous within the
meaning of this chapter unless it creates a
hazard to those who foreseeably will use the
property or adjacent property with due care.
Thus, even though it is foreseeable that
persons may use public property without due
care, a public entity may not be held liable
for failing to take precautions to protect
such persons.
The plaintiff is required to establish that
the condition was one that created a hazard
to a person who foreseeably would use the
property or adjacent property with due care.
Pursuant to that legislative mandate, California courts,
like those in New Jersey, have refused to find that property is
in a dangerous condition if the property poses a substantial risk
of injury only to those who engage in objectively unreasonable
conduct. For example, in Fredette v. City of Long Beach, the
plaintiff injured himself when he dove into shallow water from a
pier in the final stages of reconstruction.
187 Cal. App.3d 122, 127-28 (Ct. App. 1986). He argued that the absence of
barricades or warning signs on the pier created a dangerous
condition. Id. at 129. The California court rejected that
argument, explaining:
The negligence of a plaintiff-user of public
property . . . is a defense which may be
asserted by a public entity; it has no
bearing upon the determination of a
“dangerous condition” in the first instance.
So long as the plaintiff-user can establish
that a condition of the property creates a
substantial risk to any foreseeable user of
the public property who uses it with due
care, he has successfully alleged the
existence of a dangerous condition regardless
of his lack of due care.
On the other hand, if “it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not dangerous.” Ibid. In sustaining a jury verdict for the city of Long Beach, the court found that “the physical characteristics” of the pier notified “persons exercising due care” that the activity in which the plaintiff participated was, “in and of itself, a hazardous activity that should be avoided. We think it clear that no member of the public may ignore the notice which the condition itself provides.” Id. at 132. The court concluded that the city of Long Beach had not created a dangerous condition, and that its failure to erect barricades or post signs was not the proximate cause of plaintiff's injuries. Id. at 131.
In Rombalski v. City of Laguna Beach, 213 Cal. App.3d 842, 849 (Ct. App. 1989), a thirteen-year old plaintiff was rendered a quadriplegic after diving from a rock on a public beach. Affirming summary judgment for the municipality of Laguna Beach, the Court of Appeal held as a matter of law that the rock was not a dangerous condition because the plaintiff could not show that he had exercised due care. Id. at 849-50. The court reasoned that “[i]n Fredette, as in this case, the condition of the rock only become dangerous when misused.” Id. at 850. The dive,
moreover, was a hazardous recreational activity for which the
city was immune. Id. at 851-52.
Finally, in Mathews v. City of Cerritos,
2 Cal. App. 4th
1380, 1382 (Ct. App. 1992), the eight-year old plaintiff injured
himself while attempting to ride his bicycle down a steep hill in
a city park when the grass was wet with dew. The boy knew the
hill was too steep and dangerous for bike-riding. Id. at 1383.
In affirming summary judgment for the city of Cerritos, the Court
of Appeal reasoned that the condition of the park did not
constitute a dangerous condition:
Reasonably foreseeable use with due care, as
an element in defining whether property is in
a dangerous condition, refers to use by the
public generally, not the contributory
negligence of the particular plaintiff who
comes before the court; the particular
plaintiff's contributory negligence is a
matter of defense. Nevertheless, the
plaintiff has the burden to establish that
the condition is one which creates a hazard
to persons who foreseeably would use the
property with due care.
Applying these principles here, we conclude
that the danger of riding a bicycle down a
very steep, wet, grassy hill is obvious from
the appearance of the property itself, even
to children exercising a lower standard of
care.
The California cases confirm that "used with due care" implies a standard of objective reasonableness. A use that is not objectively reasonable from the community perspective is not one "with due care." To this extent, "used with due care" refers
not to the conduct of the injured party, but to the objectively
reasonable use by the public generally. See California Tort
Liability Practice § 3.21, at 321 (3rd Ed. 1992) (stating that
"`used with due care' requirement refers to use by the public
generally"); California Jury Instruction Civil § 11.54, at 473
(7th Ed. 1986) (stating that "`used with due care' refers to
whether the condition would result in injuries when used with due
care by the public generally. It does not refer to the care used
by any person in connection with this particular accident.")
Consistent with California's interpretation, the Appellate
Division has held that the existence of a dangerous condition
depends on "whether the property creates a substantial risk of
injury `to persons generally, who would use the property with due
care in a foreseeable manner.'" Daniel v. New Jersey Dep't of
Transp.,
239 N.J. Super. 563, 587 (App. Div.) (citations omitted)
(emphasis in original), certif. denied,
122 N.J. 325 (1990); see
also Speziale, supra, 193 N.J. Super. at 419 (“the test is
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”). When the property poses a danger
to all users, an injured party may establish that property was in
a dangerous condition notwithstanding his or her failure to
exercise due care. See, e.g., Furey v. County of Ocean,
273 N.J.
Super. 300, 310-11 (App. Div.) (holding that drop-off at shoulder
of road ranging between two to six inches could be dangerous
condition because "roadway was not safe for drivers in general;"
hence, "it is irrelevant why decedent's vehicle left the road"),
certif. denied,
138 N.J. 272 (1994); Daniel, supra, 239 N.J.
Super. at 590 (holding that two road projects which created ramp
with tendency to catapult automobiles across highway median could
create dangerous condition because "a driver may make contact
with a median notwithstanding his or her exercise of due care").
In such cases the plaintiff's negligence more appropriately
relates not to the determination whether the property was
dangerous, but to the issues of proximate causation or
comparative negligence.
As the California opinions illustrate, courts concentrate on
the activity in which the plaintiff engaged. The purpose of the
evaluation is to ascertain whether the plaintiff had engaged in
an activity that is so objectively unreasonable that liability
for resulting injuries may not be attributed to the condition of
the property. The focus of the inquiry is not on the details of
the plaintiff's activity, but on the nature of the activity
itself. Although the inquiry “does not refer to the actual
activities of the plaintiff," Daniel, supra, 239 N.J. Super. at
587, it invites examination whether the plaintiff's “conduct
while engaging in a foreseeable activity amounts to an
objectively reasonable use of the property.” Levin, supra, 133
N.J. at 59 (Stein, J. dissenting); see Speaks v. Jersey Hous.
Auth.,
193 N.J. Super. 405, 411 (App. Div. 1984) (“the reasonable
user requirement [of N.J.S.A. 59:4-1a] of equal necessity, refers
to the conduct of an individual”).
In the present case, the record does not establish that the
declivity was dangerous to all foreseeable users of the parking
lot. Nothing indicates that the declivity posed a risk to
commuters or to other persons who parked their cars or walked to
the train station. In brief, the condition of the property was
not dangerous for anyone who used it “with due care.”
Furthermore, that plaintiff's use was not “with due care” is
manifest. Touch football on a poorly-lit uneven railroad-station
parking lot constitutes a use of public property that is as a
matter of law "without due care." The fact that plaintiff was
injured does not prove that the condition of the property posed a
risk of harm to anyone who exercised due care in the use of the
property. Even under the generous test applicable to motions for
summary judgment, plaintiff has not proved that the property when
used with due care created a substantial risk of injury to the
general public.
Our concurring colleagues agree with the dismissal of plaintiff's action but would do so because the declivity was not a proximate cause of plaintiff's injury. In short, they would judge the unreasonableness of the plaintiff's conduct exclusively with regard to proximate causation or comparative negligence. (slip op. at 2). That analysis, however, ignores the relevance of proof of the use of the property with due care as part of establishing that the property was in a dangerous condition. To
that extent, the concurrence departs from the plain language and
purpose of the Act.
An examination of the objective reasonableness of the
plaintiff's use of the property under N.J.S.A. 59:4-1a does not
conflict with an examination of that use under N.J.S.A. 59:9-4,
which pertains to the comparative negligence of the parties.
N.J.S.A. 59:9-4 provides that a plaintiff's negligence is not a
bar to recovery unless it is greater than the public entity's
negligence. Daniel, supra, 239 N.J. Super. at 588 (plaintiff may
be able to establish existence of dangerous condition even though
he personally may have been negligent); Speziale, supra, 193 N.J.
Super. at 419 (same). In a sense, proof of a plaintiff's due
care, like proof of the physical condition of property, is a
threshold requirement. That plaintiff's conduct relates also to
proximate causation, N.J.S.A. 59:4-2, and comparative negligence,
N.J.S.A. 59:9-4, does not preclude its relevance to the
determination whether the property was in a dangerous condition.
When construing the Act, courts seek to follow the
legislative mandate favoring the immunity of public entities.
Bombace, supra, 125 N.J. at 373. The Legislature could have
written the Act to create more expansive liability for public
entities. Specifically, the Legislature could have provided that
the plaintiff's due care is irrelevant to the inquiry whether
property is in a “dangerous condition.” Alternatively, the
Legislature could have limited consideration of a plaintiff's use
of the public property to issues of causation or comparative
negligence. A statute so drafted would comport with our
concurring colleagues' construction of the Act. The Legislature,
however, took a different course. It wrote the “due care”
requirement into the definition of “dangerous condition.” In
brief, the Legislature made a conscious policy choice to exclude
public entities from liability for people who engage in
unreasonable activities on public property.
Because of our disposition in this case, we need not resolve
whether the declivity posed a substantial risk of injury, whether
the declivity was the proximate cause of plaintiff's injury,
whether Middletown had notice of the declivity, or whether
Middletown's actions were “palpably unreasonable.”
The judgment of the Appellate Division is reversed and the
judgment of the Law Division is reinstated.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, GARIBALDI, and
COLEMAN join in JUSTICE POLLOCK's opinion. JUSTICE STEIN has
filed a separate concurring opinion, in which JUSTICE O'HERN
joins.
SUPREME COURT OF NEW JERSEY
A-
12 September Term 1997
DENNIS GARRISON,
Plaintiff-Respondent,
v.
TOWNSHIP OF MIDDLETOWN,
Defendant-Appellant,
and
NEW JERSEY TRANSIT,
Defendant.
STEIN, J. concurring.
I join in the Court's judgment reversing the judgment of the
Appellate Division. The Court's analysis and rationale, however,
are flawed and will generate confusion and imprecision in the
conduct of Tort Claims Act (Act) litigation.
Misreading the statute, the Court holds that for purposes of
public entity liability under the Act a condition of public
property is not "dangerous" unless the specific plaintiff that
brought the litigation satisfies the "threshold requirement" that
he or she used due care when encountering the property. Ante at
___ (slip op. at 15.) Thus, under the Court's analysis a large,
deep, unmarked and obviously hazardous pothole in a public-entity-owned parking lot would constitute a "dangerous condition"
in a lawsuit brought by a person who tripped on the pothole while
exercising due care, but the identical pothole would not
constitute a dangerous condition in a different suit against the
same public entity brought by a person who tripped on the pothole
while roller-blading backwards across the lot. The Court claims
that its contradictory and illogical standard for identifying a
"dangerous condition" of public property is faithful to the Act.
The Court's analysis disregards, however, those other provisions
of the Act that do attach relevance to the specific conduct of
the plaintiff in the litigation. For example, N.J.S.A. 59:9-4
provides that a plaintiff's contributory negligence not greater
than that of the public entity does not bar recovery under the
Act and requires the fact finder to allocate fault between the
plaintiff and the public entity. N.J.S.A. 59:4-2 imposes
liability on a public entity based on a dangerous condition of
property only if the plaintiff's injury was proximately caused by
the dangerous condition. Those sections of the Act, not the
definition of "dangerous condition," are designed to accord
significance to the conduct of the specific plaintiff and to his
or her lack of due care.
The Court's faulty analysis does not affect the result in
this appeal because the record reveals a failure of proof either
that the condition of public property at issue here was a
proximate cause of plaintiff's injury or that the public entity's
lack of action to address that condition was palpably
unreasonable. See N.J.S.A. 59:4-2. Nevertheless, the Court's
strained effort to define a "dangerous condition" of property by
focusing not on the foreseeable hazard posed by the property to
careful users but rather on the carelessness of the specific
plaintiff retards the orderly development of our Tort Claims Act
jurisprudence and diminishes the persuasiveness of the Court's
disposition.
As summarized in the Court's opinion, ante at ___ (slip op.
at 2-4), plaintiff's claim is based on an injury he sustained
while playing touch football at night with friends on an
illuminated township parking lot located adjacent to a New Jersey
Transit station. Neither party disputes, for purposes of the
township's summary judgment motion, that plaintiff was injured
when he rushed the passer and stumbled on an uneven portion of
the lot -- an area where the paved portion was one and one-half
inches lower than an adjacent broken gravel surface. Plaintiff
was aware of the uneven surface. He and his friends noticed it
before the football game began and agreed that they would try to
avoid that area of the lot.
After discovery was completed the Law Division granted
defendants' motions for summary judgment, reasoning that the
uneven surface of the parking lot did not constitute a dangerous
condition as a matter of law because the touch football game was
not an intended use of the property. Reversing, the Appellate
Division panel observed that the same injury plaintiff
experienced "could have been sustained by, for example, a
commuter who had parked his car in the lot and then run, or even
walked, to catch a train, falling at the point where the repaved
and unrepaved portions of the lot met," and noting that "any
person using the parking lot for its intended use could have
suffered the same mischance that plaintiff did because the danger
lay not in the use itself but rather in the defective condition."
The Court now reverses and holds that "a dangerous condition
can be found to exist" only when the plaintiff uses the public
entity's property with "due care," ante at ___ (slip op. at 5),
emphasizing that public property is not "dangerous," as that term
is used in N.J.S.A. 59:4-1a, if someone is injured while failing
to exercise due care. Ante at ___ (slip op. at 14).
Apparently recognizing the incongruity of an analysis that
makes the dangerousness of property depend not on its general
condition but rather on a specific plaintiff's use, the Court
qualifies its holding by observing that to some extent "'used
with due care' refers not to the conduct of the injured party,
but to objectively reasonable use by the public generally." Ante
at ___ (slip op. at 11). Adding further confusion to its
analysis, the Court back-pedals and concedes that "[w]hen the
property poses a danger to all users, an injured party may
establish that property was in a dangerous condition
notwithstanding his or her failure to exercise due care. Ante at
___ (slip op. at 12). But the Court discards that more rational
approach when it insists that to decide these cases "courts must
first evaluate the activity in which the plaintiff engaged."
Ante at ___ (slip op. at 13.)
After demanding a plaintiff-specific analysis to determine
if public property is dangerous, the Court thereafter abandons
that inquiry, determining that in this case
the record does not establish that the
declivity was dangerous to all foreseeable
users of the parking lot. Nothing indicates
that the declivity posed a risk to such
persons as commuters or to other persons who
parked their cars or walked to the train
station. In brief, the condition of the
property was not dangerous for one who used
it "with due care."
Ante at ___ (slip op. at 13-14).
Without acknowledging its inconsistency, the Court effectively
decides this case by concluding as a matter of law that the
municipal parking lot did not constitute a dangerous condition
because it posed no risk to any person using due care, thereby
confirming that plaintiff's lack of due care is irrelevant in
determining whether the parking lot was dangerous. If the record
had contained abundant evidence of commuters tripping and falling
daily on the very same declivity, I infer that the Court would
concede that the property was dangerous irrespective of
plaintiff's lack of due care.
The Court supports its plaintiff-specific understanding of the term "dangerous condition" by reliance on decisional law in this state, as well as on cases decided by courts in California on whose Tort Claims Act New Jersey's statute was modeled. See Levin v. County of Salem, 133 N.J. 35, 46 (1993). However, neither jurisdiction's decisional law supports the Court's unorthodox interpretation of the term "dangerous condition" as used in the Act. The statute defines a dangerous condition as "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. 59:4-1a. The interpretative issue is readily apparent: does the statute contemplate, as the Appellate Division concluded, that a dangerous condition exists if it poses a risk of injury to any person using the property with due care in a reasonably foreseeable manner, or does it contemplate, as the Court concludes, that no matter how hazardous a condition of property may be it is not a "dangerous condition" unless the specific plaintiff used the property with due care in a reasonably foreseeable manner. The plain language of the statute, which includes no reference to the specific plaintiff's use of the property, clearly supports the Appellate Division's interpretation that focuses on whether public property poses a substantial risk of injury to any person using the property with
due care in a reasonably foreseeable manner. Because of the
Court's acknowledged reliance on precedent to sustain its
interpretation, I focus on the same cases but reach a different
conclusion.
The first case discussed by the Court, Speziale v. Newark
Housing Authority,
193 N.J. Super. 413 (App. Div. 1984),
expressly contradicts the Court's analysis. There, the plaintiff
"slipped and fell while attempting to step from a staircase over
a pit filled with water onto a single step leading into a laundry
room." Ante at ___- ___ (slip op. at 6). Reversing a jury
verdict for the plaintiff, the Appellate Division concluded that
the plaintiff had failed to prove the existence of a dangerous
condition of property, concluding that the flooded condition
posed no substantial risk of injury because "[a] person in
plaintiff's position here could have been reasonably expected to
wait until the water condition abated, or to have sought
assistance." 193 N.J. Super. at 417. The court added, however,
that a public entity was not immune from liability under the
"dangerous condition" section of the act merely because the
specific plaintiff was contributorily negligent. Id. at 418.
The Appellate Division quoted with approval the California Law
Revision Commission's comment to the corresponding section of the
California statute, Cal. Gov't Code § 830(a):
Although the condition will not be
considered dangerous . . . unless it creates
a hazard to those who foreseeably will use
the property . . . with due care, this does
not require that the injured person prove
that he was free from contributory
negligence. . . . The plaintiff is, however,
required to establish that the condition was
one that created a hazard to a person who
foreseeably would use the property . . . with
due care.
Hawes v. New Jersey Department of Transportation,
232 N.J.
Super. 160 (Law Div.), aff'd,
232 N.J. Super. 159 (App. Div.
1988), also relied on by the Court, does not support the Court's
analysis. There, the trial court granted the defendant's motion
for summary judgment in a suit brought by the administratrix of
the estate of a decedent killed by one of the defendant's trains
when he attempted to cross a railroad track. Focusing on a
hypothetical user rather than the plaintiff, the court concluded
that the property did not constitute a dangerous condition
because "it is clear . . . that if a person were to use the
defendant's property with due care, he would encounter no
substantial risk of harm." Id. at 164. But the Law Division
expressly rejected the defendant's contention that a dangerous
condition cannot exist if the specific plaintiff does not use due
care: "The defendant also seems to imply that due care is a
condition precedent to a finding that property is dangerous.
This position is untenable." Id. at 161 n.1 (citing Speziale,
supra,
193 N.J. Super. 413).
Lytle v. City of Newark,
166 N.J. Super. 191 (1979), another
Law Division opinion relied on by the Court, appears to support
the Court's construction of the statute. In Lytle, the plaintiff
was injured in a collision with another car in an intersection at
which the traffic lights were inoperative. Concluding that even
without functioning traffic lights the intersection would not
have been dangerous if the drivers had used due care, the court
concluded that the specific plaintiff's lack of due care
precluded a finding that a dangerous condition existed. Id. at
195. Notably, the Appellate Division in Speziale, supra, on
which the Court also relies, expressly disapproved of Lytle to
the extent that it suggests that no dangerous condition can exist
if a plaintiff is contributorily negligent. 193 N.J. Super. at
418.
In Daniel v. New Jersey Department of Transportation,
239 N.J. Super. 563 (App. Div.), certif. denied,
122 N.J. 325 (1990),
also cited by the Court, the Appellate Division's analysis flatly
contradicts the Court's holding that a dangerous condition cannot
exist if the specific plaintiff fails to use due care. There,
the court sustained a jury verdict in favor of the executrix of
the decedent's estate and against the New Jersey Department of
Transportation (DOT). The decedent, Barbara Rhem, was killed
while she was a front-seat passenger in a car traveling eastbound
on Route 30 driven by her cousin, William Rhem, when a car driven
by George Jones, Jr. traveling westbound on Route 30 became
airborne, crossed the median, and collided head-on with the Rhem
vehicle. In asserting a claim against the State, the plaintiff
contended that a dangerous condition existed by virtue of DOT's
reduction of the curb height in 1970 from eight to two inches and
the asphalt paving of the median in 1981 that allegedly created a
"ramp-like" effect that caused Jones's vehicle to be catapulted
into the eastbound lane. Id. at 571.
In discussing the statutory term "dangerous condition," the
Appellate Division was critical of the trial court's charge
informing the jury that the statutory phrase "due care" referred
to the conduct of the driver of the Rhem vehicle. The court
stated:
As we understand the statute, the phrase
"used with due care" does not refer to the
actual activities of the parties. Rather,
the focus is on the condition of the property
itself. In deciding whether a dangerous
condition exists, the fact-finder must
determine whether the property creates a
substantial risk of injury "to persons
generally, who would use the property with
due care in a foreseeable manner." Holmes v.
Oakland City,
260 Cal.App.2d 378, 387-388,
67 Cal.Rptr 197, 203 (App. Ct.1968) [Emphasis
in original]. Accordingly, in order to prove
his case, "plaintiff must show 'that the
condition was one that created a hazard to a
person who foreseeably would use the property
. . . with due care.'" Ibid.
The court added that it would not be feasible for a public
entity to predict "every imaginable way in which its property can
or will be used." Id. at 587. Therefore, the court noted,
[t]he Legislature has dealt with this problem
by creating a fictitious person, a reasonable
person of ordinary prudence. Under the
statutory definition, a dangerous condition
exists if the property poses a substantial
risk of injury when it is used in a
reasonably prudent manner in a foreseeable
way. To that extent, the reasonable user
requirement does not refer to the actual
activities of the plaintiff or others.
Rather, it constitutes a personification of a
community ideal of reasonable behavior.
In that context, the trial court erred
when it referred solely to the Rhems'
behavior in determining whether the property
presented a dangerous condition. Contrary to
the instruction given in this case, the
actual conduct of the plaintiff is wholly
irrelevant to this inquiry. Thus, a
plaintiff "may be able to establish the
existence of a dangerous condition even
though he personally may have been
contributorily negligent." Speziale v.
Newark Hous. Auth., 193 N.J. Super. at 419.
Under the Act, "[c]ontributory negligence
shall not bar recovery. . . ." N.J.S.A.
59:9-4. A person who negligently contributes
to the injury he sustains is not barred from
bringing suit as long as it can be shown that
there was a defect in the public property and
that the harm would have occurred even had he
exercised due care. Ibid.
In Furey v. County of Ocean, 273 N.J. Super. 300 (App. Div.), certif. denied, 138 N.J. 272 (1994), also relied on by the Court, the Appellate Division upheld a jury verdict in favor of the surviving spouse of a volunteer fireman who was killed when his vehicle went out of control and struck a tree. His estate contended that a two to four inch drop-off from the paved road to the unpaved shoulder was a "dangerous condition" that proximately caused his death. In response to the County's contention that the plaintiff was unable to establish why the decedent's vehicle left the roadway, the Appellate Division emphasized that "[i]n determining if the drop-off created a dangerous condition, it is irrelevant why decedent's vehicle left the road." Id. at 310. The court observed that what was relevant was whether the condition of the road and shoulder posed a substantial risk of injury to a driver using due care. Ibid. The court referred to
the "used with due care" language of N.J.S.A. 59:4-1a and cited
Daniel, supra, 239 N.J. Super. at 587, with approval, noting that
the Daniel court had "rejected the argument that the actual
conduct of the plaintiff would be relevant in determining if a
dangerous condition existed." 273 N.J. Super. at 311.
The Court's reliance on California cases that squarely
contradict its holding is bewildering. In Fredette v. City of
Long Beach,
231 Cal. Rptr. 598 (Ct. App. 1986), the plaintiff was
rendered a quadriplegic when he dove into shallow water from a
pier undergoing reconstruction, and he contended that the absence
of warning signs or barricades on the pier created a "dangerous
condition." Section 830(a) of the California Government Code
defines dangerous condition as “a condition of property that
creates a substantial (as distinguished from a minor, trivial or
insignificant) risk of injury when such property or adjacent
property is used with due care in a manner in which it is
reasonably foreseeable that it will be used,” a definition
substantially identical to that contained in our Tort Claims Act.
Although sustaining a jury verdict in favor of the defendant, the
Fredette court held that the plaintiff's lack of due care had no
bearing on whether a dangerous condition existed:
It is well settled, however, that the
negligence or lack of due care exhibited by a
plaintiff-user of public property does not
necessarily defeat his cause of action. The
Law Revision Commission's Comment to section
830 provides: "Although the condition will
not be considered dangerous within the
meaning of this chapter unless it creates a
hazard to those who foreseeably will use the
property or adjacent property with due care,
[emphasis in original] this does not require
that the injured person prove that he was
free from contributory negligence.
Contributory negligence is a matter of
defense under subdivision (b) of Section 815.
The plaintiff is, however, required to
establish that the condition was one that
created a hazard to a person who foreseeably
would use the property or adjacent property
with due care."
The negligence of a plaintiff-user of
public property, therefore, is a defense
which may be asserted by a public entity; it
has no bearing upon the determination of a
'dangerous condition' in the first instance.
(See Callahan v. City and County of San
Francisco (1967)
249 Cal.App.2d 696, 702-703,
57 Cal.Rptr. 639; Van Alstyne, Cal.
Government Tort Liability Practice
(Cont.Ed.Bar 1980) § 3.12, pp. 198-201.) So
long as a plaintiff-user can establish that a
condition of the property creates a
substantial risk to any foreseeable user of
the public property who uses it with due
care, he has successfully alleged the
existence of a dangerous condition regardless
of his personal lack of due care. If,
however, it can be shown that the property is
safe when used with due care and that a risk
of harm is created only when foreseeable
users fail to exercise due care, then such
property is not "dangerous" within the
meaning of section 830, subdivision (a).
adhering to California precedent, expressly stated that the
plaintiff's due care was not an element of the definition of
dangerous condition:
Reasonably foreseeable use with due
care, as an element in defining whether
property is in a dangerous condition, refers
to use by the public generally, not the
contributory negligence of the particular
plaintiff who comes before the court; the
particular plaintiff's contributory
negligence is a matter of defense.
Nevertheless, the plaintiff has the burden to
establish that the condition is one which
creates a hazard to persons who foreseeably
would use the property with due care.
Although not acknowledged by the Court's opinion, numerous
California cases, consistent with Fredette, supra, state
unequivocally that the specific plaintiff's lack of due care is
irrelevant to the determination of the existence of a dangerous
condition. See, e.g., Alexander v. State,
205 Cal. Rptr. 758,
763 (Ct. App. 1984)("'Instructions defining for the jury the
statutory concept of a dangerous condition should avoid creating
any implication that due care on the part of the plaintiff or of
third persons must be established by plaintiff as a condition of
recovery.'")(quoting Van Alstyne, Cal. Government Tort Liability
Practice § 3.85, at 315 (1980)); Swaner v. City of Santa Monica,
198 Cal. Rptr. 208, 213 (Ct. App. 1984)("The negligence of a
plaintiff-user of public property, therefore, is a defense which
may be asserted by a public entity; it has no bearing upon the
determination of a 'dangerous condition' in the first
instance.");
Holmes v. City of Oakland,
67 Cal. Rptr. 197, 203
(Ct. App. 1968)("[T]he test is whether the condition creates a
substantial risk of harm to persons, generally, who would use the
public property with due care in a foreseeable manner. . . . [The
plaintiff] need not, however, allege that he was free from
contributory negligence since contributory negligence is a matter
of defense. . . .");
Callahan v. City & County of San Francisco,
57 Cal. Rptr. 639, 644 (Ct. App. 1967)("Plaintiff does not say,
and is not required to say, that the driver with whom she was
riding was exercising due care. . . . There is logic, as well as
the quoted commentaries, in favor of appellant's position that
section 830, subdivision (a) defines dangerous condition with
relation to the general public and not to a particular driver or
user or person coming into contact with public property.").
In the face of overwhelmingly contradictory precedent both
in our cases and in California decisions, I find mystifying the
Court's intransigent demand that determination of a "dangerous
condition" must depend on the plaintiff's conduct, ante at
___
(slip op. at 13)
, and its insistence on "the relevance of proof
of the use of the property with due care as part of establishing
that the property was in a dangerous condition." Ante at ___
slip op. at 14). Despite those broad assertions, the Court
seemingly rejects its own rationale when it declares that if
property poses a danger to all users, "an injured party may
establish that property was in a dangerous condition
notwithstanding his or her failure to use due care." Ante at ___
(slip op. at 12). The Court's inconsistent positions concerning
the significance of a plaintiff's conduct raises grave doubts
about the cogency and durability of the Court's analytical
approach.
Moreover, the Court holds that playing touch football at
night on an uneven parking lot constitutes a use that is as a
"matter of law `without due care.'" Ante at ___ (slip op. at
14). That holding implies that girls who play hop scotch on a
city sidewalk, or boys who play stick ball in a city street at
night or stoop ball on the city sidewalks in front of their homes
lack "due care" as a matter of law. In such cases, even if the
city were on notice of a defective condition of its property,
such as a sinkhole under the area or a leaking gas main, the
youthful user of the streets would be precluded from recovery
because the Court disapproved of the game "as a matter of law."
The Court's formulation is thus both illogical and certain
to pose analytical difficulties for trial courts. For example,
in a suit by an automobile passenger injured in part because of
an obviously dangerous condition of public property, but in a
factual setting in which the driver of her car failed to use due
care, the Court's rationale could be understood to preclude a
finding that a dangerous condition existed. Cf. Callahan, supra,
57 Cal. Rptr. at 644 (posing similar hypothetical and criticizing
rule defining dangerous condition in terms of plaintiff's or
third person's due care because "[s]uch a holding would bar
liability of the governmental unit in many cases affecting wholly
blameless parties.") Nor is the Court's analysis necessary to
vindicate the legislative objectives underlying the Tort Claims
Act because the public entity can assert a plaintiff's lack of
due care or inappropriate use of public property in support of a
defense based on comparative negligence or lack of proximate
cause.
In my view, the decisions of the Appellate Division in
Furey, supra, 273 N.J. Super. at 310-12, Daniel, supra, 239 N.J.
Super. at 586-88, and Speziale, supra, 193 N.J. Super. at 418-19,
as well as the analogous holdings of the California cases
regarding the proper role of “due care” in the determination of
the existence of a “dangerous condition,” fairly reflect the
legislative purpose underlying the definition of dangerous
condition in the New Jersey Tort Claims Act. If the public
property is safe when used by any person with due care and a risk
of harm is created only when foreseeable users fail to exercise
due care, then the property is not “dangerous” within the meaning
of N.J.S.A. 59:4-1a. However, if a plaintiff can establish that
a condition of the property creates a substantial risk to any
foreseeable user of the property who uses it with due care, that
plaintiff has established the existence of a dangerous condition
irrespective of the nature of plaintiff's use of the property or
the plaintiff's lack of due care. In either case the conduct of
the specific plaintiff is not relevant to the determination of a
“dangerous condition,” but rather bears on causation and on any
defense of comparative negligence raised by the public entity.
Plaintiff has submitted evidence of a physical defect in the
Township's parking lot. As the Appellate Division observed, the
type of injury sustained by plaintiff could have been sustained
by a commuter running or even walking to catch a train.
Accordingly, if the trial court determined that the condition of
the public property created a substantial risk of injury to a
foreseeable user exercising due care, summary judgment on the
ground that plaintiff could not establish a dangerous condition
of the property would be improper.
Nevertheless, I would sustain the grant of summary judgment
in favor of the Township on the basis that, even assuming a
"dangerous condition" existed, the condition as a matter of law
was not a proximate cause of plaintiff's injury.
In the context of the Tort Claims Act, proximate cause has
been defined as “any cause which in the natural and continuous
sequence, unbroken by an efficient intervening cause, produces
the result complained of and without which the result would not
have occurred.” Polyard v. Terry,
160 N.J. Super. 497, 511 (App.
Div.)(quoting Fernandez v. Baruch,
96 N.J. Super. 125, 140 (App.
Div. 1967), rev'd on other grounds,
52 N.J. 127 (1968)), aff'd,
79 N.J. 547 (1979). The element of proximate cause in the Act,
however, is essentially no different than the element of
proximate cause within our common law negligence jurisprudence.
On several occasions this Court has declared that proximate causation is not a simple factual inquiry of cause and effect, but rather that “[p]roximate or legal causation is that combination of 'logic, common sense, justice, policy and precedent' that fixes a point in a chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery.” People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 264 (1985)(quoting Caputzal v. Lindsay Co., 48 N.J. 69, 77-78 (1966)); see also Kuzmicz v. Ivy Hill Apartments, Inc. 147 N.J. 510, 540-41 (1997)(Stein, J., dissenting)(same); Contey v. New Jersey Bell Tel. Co., 136 N.J. 582, 587 (1994)("We have . . . defined the