ANTHONY VICTOR VS. BOROUGH OF RED BANK (L-2293-15, MONMOUTH COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1393-17T2
ANTHONY VICTOR,
Plaintiff-Appellant,
v.
BOROUGH OF RED BANK, and
BOARD OF EDUCATION OF
RED BANK,
Defendants-Respondents.
_______________________________
Submitted June 19, 2018 - Decided September 27, 2018
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-2293-15.
The Clancy Law Firm, PC, attorneys for appellant
(Donna H. Clancy, on the briefs).
Orlovsky, Moody, Schaaff, Conlon & Gabrysiak,
attorneys for respondents (Michael E. McGann, of
counsel and on the brief; Allison A. Krilla, on the
brief).
PER CURIAM
In this Title 59 matter, plaintiff Anthony Victor appeals from the entry
of summary judgment dismissing his complaint against defendants Borough of
Red Bank and its Board of Education. Because we agree that summary
judgment was properly granted to the Borough and its Board on the undisputed
facts, we affirm.
The essential facts are these. Plaintiff went to Red Bank's Count Basie
Field to watch his grandson's baseball game. He described the accident as
follows:
[I]t was a beautiful Sunday. I had gotten a cup of iced
coffee. And I normally have a fairly quick gait 'cause
that's the way I walk. And I was walking on the
walkway toward the game. I saw him out in the
batting cage. And I didn't see the bench across the
path and I went flying over it.
The bench plaintiff tripped over was a dugout bench that the Borough
moved between fields as needed to provide players a place to sit during games
or practices. The parties agree it was a portable aluminum bench with a back
rest. The bench was approximately twenty-one feet long and held up by four
vertical supports each terminating in a perpendicular metal bar two inches in
diameter. Each of the four bars extended fifteen inches beyond the back of the
bench. The bench was behind some metal bleachers on a concrete pad next to
one of the fields, facing the same way as the bleachers. Plaintiff was walking
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behind the bleachers across the pad to reach the batting cages and anothe r
field. He testified at deposition that he had walked almost the entire length of
the bench when his right foot tripped on the last support.
When asked why he failed to see the bench's metal supports as he
walked along behind it, plaintiff replied, "I was walking and, as I said before,
one of the boys was in the batting cage, you know, I was headed — I was
looking straight ahead. When I walk I don't look at the ground. Just a normal
walk to the field." That led to the following exchange:
Q: So what did Red Bank do wrong?
A: Well, apparently that bench shouldn't be in
the walkway. It's a bench I guess for people to watch
the games. I don't know why it was in the walkway.
Q: But I mean it was obvious it was there,
correct?
A: Correct.
Q: It wasn't a surprise, it wasn't dark out or
anything, right?
A: Correct.
....
Q: It was plain to your vision, it was plain and
obvious?
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A: [Counsel], if I had seen it, I wouldn't have
tripped over it. I didn't see it.
Q: I know but why didn't you see it?
A: Because I wasn't looking down.
Although plaintiff referred to where he tripped as a walkway, his expert
and the Borough's witnesses described it as a concrete pad or slab adjacent to
the third base line of field number two, on which stand permanent bleachers
for spectators. Although not part of a continuous walkway, the Borough
acknowledged that some spectators cut across the pad to reach the batting
cages.
Following discovery, defendants moved for summary judgment
contending plaintiff could not demonstrate the property was in a dangerous
condition or that the placement of the bench was palpably unreasonable.
Plaintiff opposed the motion, contending that the placement of the bench on
the pad constituted a dangerous condition and whether it was palpably
unreasonable was a jury question.
After reviewing the applicable case law, the judge concluded the bench
itself was not dangerous and "as positioned is only potentially dangerous to
those who do not make observations." Satisfied the case did not present "a
close call," the judge concluded that
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[e]ven giving Mr. Victor the benefit of all reasonable
inferences, he's not using the park with due care. He's
not watching where he's going. It's his own testimony.
He's walking quickly, wants to get to the ball game,
wants to see his grandchild play. All the types of
things you, you know, you admire about grandfathers
being involved in their grandkids' lives. I get it
completely. But you still have the duty to watch
where you're going. And I don't think any reasonable
fact finder could find otherwise.
Plaintiff appeals, contending the trial court failed to apply the correct
legal standard and that he "met the standard of due care by walking across a
known pedestrian walkway looking straight ahead" and that "[s]ummary
judgment should have been denied based upon an issue of fact as to proximate
cause." Plaintiff argues that "leaving a dugout bench with 15" metal bars
protruding from the back of a bench that were hidden from view by pedestrians
walking normally on a pathway was a dangerous condition created by
Defendants" and because "reasonable minds can differ as to whether
Defendants acted in a palpably unreasonable manner," the question is for the
jury. We disagree.
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We review summary judgment using the same standard that governs the
trial court.1 Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).
Thus, we consider "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." Liberty Surplus Ins. Corp. v. Nowell Amoroso,
P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 536 (1995)).
N.J.S.A. 59:4-2 addresses a dangerous condition of public property and
provides as follows:
A public entity is liable for injury caused by a
condition of its property if the plaintiff establishes that
the property was in dangerous condition at the time of
the injury, that the injury was proximately caused by
the dangerous condition, that the dangerous condition
created a reasonably foreseeable risk of the kind of
injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an
employee of the public entity within the scope of his
employment created the dangerous condition; or
1
Because we apply the same standard as the trial judge and review questions
of law de novo without deference to interpretive conclusions we believe
mistaken, Nicholas v. Mynster, 213 N.J. 463, 478 (2013), Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we need not
address plaintiff's argument that the trial judge misapplied the summary
judgment standard.
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b. a public entity had actual or constructive
notice of the dangerous condition under section 59:4-3
a sufficient time prior to the injury to have taken
measures to protect against the dangerous condition.
Nothing in this section shall be construed to
impose liability upon a public entity for a dangerous
condition of its public property if the action the entity
took to protect against the condition or the failure to
take such action was not palpably unreasonable.
Thus "to impose liability on a public entity pursuant to that section, a plaintiff
must establish the existence of a 'dangerous condition,' that the condition
proximately caused the injury, that it 'created a reasonably foreseeable risk of
the kind of injury which was incurred,' that either the dangerous condition was
caused by a negligent employee or the entity knew about the condition, and
that the entity's conduct was 'palpably unreasonable.'" Vincitore v. N.J. Sports
& Exposition Auth., 169 N.J. 119, 125 (2001).
As defendants did not dispute that plaintiff was injured by tripping over
the bench the Borough placed behind the bleachers on the concrete pad, the
focus on the motion was whether the concrete pad, where spectators were
known to walk, was in a dangerous condition and, if so, whether the failure to
correct it was palpably unreasonable. The Tort Claims Act, N.J.S.A. 59:1-1 to
12-3, defines "dangerous condition" as "a condition of property that creates a
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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(a).
As we have elsewhere explained, "the phrase 'used with due care' does
not refer to the actual activities of the parties," but to "the condition of the
property itself." Daniel v. State, Dep't of Transp., 239 N.J. Super. 563, 586
(App. Div. 1990). "In deciding whether a dangerous condition exists," the
question is "whether the property creates a substantial risk of injury 'to persons
generally, who would use the property with due care in a foreseeable manner.'"
Id. at 587 (quoting Holmes v. Oakland City, 67 Cal. Rptr. 197, 203 (Ct. App.
1968)). Thus a "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.Applying that standard makes clear the trial court was correct to find
plaintiff failed to establish the Borough's placement of the bench behind the
bleachers rendered the concrete pad in a dangerous condition to a person who
foreseeably would walk behind the bleachers to access the batting cages or one
of the other fields. As plaintiff testified, there was nothing obscuring his view
of either the bench or the bleachers. He tripped over one of the bench supports
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after walking almost the entire length of the bench only because he "wasn't
looking down."2
Because "it would be folly to impose a burden on a public entity to
protect individuals from every conceivable risk attendant to the use of its
property," the Legislature has limited liability from a dangerous condition to
those instances where "the property poses a substantial risk of injury when it is
used in a reasonably prudent manner in a foreseeable way." Daniel, 239 N.J.
Super. at 587. Because, as the trial judge found, the bench "as positioned
[was] only potentially dangerous to those who [did] not make observations," it
did not pose a substantial risk of injury to those persons crossing the pad "in a
reasonably prudent manner in a foreseeable way." Ibid.Even were plaintiff able to somehow establish that placement of the
bench behind the bleachers constituted a dangerous condition, he has provided
no proof that the Borough's placement of the bench or failure to move it was
2
We note the obvious nature of the bench and its supports would make it
difficult for plaintiff to recover against an owner without statutory immunities,
that is, had he been a guest on private property when the injury occurred. See
Tighe v. Peterson, 356 N.J. Super. 322, 326 (App. Div.) ("Where a guest is
aware of the dangerous condition or by a reasonable use of his [faculties]
would observe it, the host is not liable.") (internal quotation marks omitted)
(quoting Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div. 1997)), aff'd
o.b., 175 N.J. 240 (2002).
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palpably unreasonable, that is "manifest and obvious that no prudent person
would approve of its course of action or inaction," Kolitch v. Lindedahl, 100
N.J. 485, 493 (1985) (citation omitted), and certainly none sufficient to require
submission to a jury, see Brill, 142 N.J. at 536.
Affirmed.
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