Garrison v. Township of Middletown , 154 N.J. 282 ( 1998 )

The opinion of the Court was delivered by

POLLOCK, J.

The New Jersey Tort Claims Act (Act), N.J.S.A. 59:4-la, 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 Middletown’s petition for certification, 147 N.J. 579, 688 A.2d 1054 (1997). We reverse the judgment of the Appellate Division and reinstate the Law Division’s judgment of dismissal.

I.

Because this matter arises on defendant’s motion for summary judgment, we accept plaintiffs 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, 666 A.2d 146 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 110 A.2d 24 (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 plaintiffs 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, plaintiffs use of the property as a football field was foreseeable. Although Middletown could assert plaintiffs 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.

II.

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, 593 A.2d 335 (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.

[N.J.S.A 59:1-2.]

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-la. 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 plaintiffs 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, 474 A.2d 1085 (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, 474 A.2d 1085. 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, 474 A.2d 1085. Hence, the condition of the property did not constitute a dangerous condition, and the ease should not have been submitted to the jury for a determination of contributory negligence. Ibid.

Although the plaintiffs lack of due care negated a finding of a dangerous condition, the Appellate Division emphasized that a plaintiffs contributory negligence will not ordinarily immunize a public entity from liability. Id. at 418, 474 A.2d 1085. The Appellate Division reasoned that such a conclusion would be contrary to N.J.S.A. 59:9-4, which provides that a plaintiffs negligence shall not bar her claim unless her negligence is greater than that of the public entity. Id. at 418-19, 474 A.2d 1085. 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.

[Id. at 419,474 A.2d 1085.]

Similarly, in Hawes v. New Jersey Dep’t of Transp., 232 N.J.Super. 160, 164, 556 A.2d 1224 (Law Div.), aff'd, 232 N.J.Super. 159, 556 A.2d 1224 (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, 556 A.2d 1224. 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.

[Id. at 164, 556 A.2d 1224.]

Finally, in Lytle v. City of Newark, 166 N.J.Super. 191, 192, 399 A.2d 333 (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, 399 A.2d 333. She claimed that the broken lights constituted a dangerous condition. Id. at 193, 399 A.2d 333. 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, 626 A.2d 1091 (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-la. 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, 231 Cal.Rptr. 598 (1986). He argued that the absence of barricades or warning signs on the pier created a dangerous condition. Id. at 129, 231 Cal.Rptr. 598. 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.

[Id. at 131, 231 Cal.Rptr. 598 (citations omitted).]

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, 231 Cal.Rptr. 598. 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 plaintiffs injuries. Id. at 131, 231 Cal.Rptr. 598.

In Rombalski v. City of Laguna Beach, 213 Cal.App.3d 842, 849, 261 Cal.Rptr. 820 (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, 261 Cal.Rptr. 820. The court reasoned that “[i]n Fredette, as in this case, the condition of the rock only become dangerous when misused.” Id. at 850, 261 Cal.Rptr. 820. The dive, moreover, was a hazardous recreational activity for which the city was immune. Id. at 851-52, 261 Cal.Rptr. 820.

Finally, in Mathews v. City of Cerritos, 2 Cal.App. 4th 1380, 1382, 4 Cal.Rptr.2d 16 (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, 4 Cal.Rptr.2d 16. 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 plaintiffs 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.

[Id. at 1384-85, 4 Cal.Rptr.2d 16.]

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, 571 A.2d 1329 (App.Div.) (citations omitted) (emphasis in original), certif. denied, 122 N.J. 325, 585 A.2d 343 (1990); see also Speziale, supra, 193 N.J.Super. at 419, 474 A.2d 1085 (“[T]he 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 (emphasis omitted) (quoting Holmes v. Oakland City, 260 Cal.App. 378, 67 Cal.Rptr. 197 (1968)).”) 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, 641 A.2d 1091 (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, 649 A.2d 1291 (1994); Daniel, supra, 239 N.J.Super. at 590, 571 A.2d 1329 (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 plaintiffs 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 plaintiffs 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, 571 A.2d 1329, it invites examination whether the plaintiffs “conduct while engaging in a foreseeable activity amounts to an objectively reasonable use of the property.” Levin, supra, 133 N.J. at 59, 626 A.2d 1091 (Stein, J., dissenting); see Speaks v. Jersey City Hous. Auth., 193 N.J.Super. 405, 411, 474 A.2d 1081 (App.Div.1984) (“the reasonable user requirement [of N.J.S.A. 59:4-la] 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 plaintiffs 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.

III.

Our concurring colleagues agree with the dismissal of plaintiffs action but would do so because the declivity was not a proximate cause of plaintiffs injury. In short, they would judge the unreasonableness of the plaintiffs conduct exclusively with regard to proximate causation or comparative negligence. (Cone. op. at 295, 712 A.2d at 1108). 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 plaintiffs use of the property under N.J.S.A. 59:4-la 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 plaintiffs 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, 571 A.2d 1329 (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, 474 A.2d 1085 (same). In a sense, proof of a plaintiffs due care, like proof of the physical condition of property, is a threshold requirement. That plaintiffs 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, 593 A.2d 335. The Legislature could have written the Act to create more expansive liability for public entities. Specifically, the Legislature could have provided that the plaintiffs due care is irrelevant to the inquiry whether property is in a “dangerous condition.” Alternatively, the Legislature could have limited consideration of a plaintiffs 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 plaintiffs 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.