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Ellison v. Housing Authority

Decided: September 28, 1978.

TERESA ELLISON AND ALFRED ELLISON, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
HOUSING AUTHORITY OF THE CITY OF SOUTH AMBOY, B. J. LUCARELLI & CO., INC., AND AMERICAN HOUSE OF ALUMINUM, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Middlesex County.

Conford and Pressler. The opinion of the court was rendered by Pressler, J.A.D.

Pressler

[162 NJSuper Page 348] This case, arising under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. , requires our construction and application of that provision thereof,

N.J.S.A. 59:4-6, which accords a public entity plan and design immunity.

Plaintiffs, pursuant to leave granted, appeal from a summary judgment dismissing their complaint against defendant Housing Authority of the City of South Amboy (Authority). They contend that the trial judge erred in concluding that the record before him evinced no genuine dispute of fact in respect of the Authority's claim of immunity from liability pursuant to N.J.S.A. 59:4-6. We agree that the motion for summary judgment was improvidently granted and accordingly reverse and remand for trial.

According to plaintiffs' proofs, they were, on July 11, 1976, tenants of an apartment in a housing project owned by the Authority and constructed by it some 25 years earlier. On that date plaintiff Teresa Ellison sustained injuries when she fell off a concrete porch at the front entrance of her apartment after being struck by the screen door at the entranceway. It is her theory of the case, supported by her expert's report, that the proximate cause of the accident was a dangerous condition of the premises created by the juxtaposition of the screen door in relation to the concrete porch. More specifically, it was her expert's opinion that the dangerous condition resulted from "the undersized depth of the exterior concrete platform (34") and the direction of swing of the self-closing screen door. The screen door, being spring hung, can virtually strike a person and sweep him off the narrow platform. The condition is aggravated by the limits of the screen door swing (approximately 75 degree instead of 90 degree)." It was his further opinion that the dangerous condition could be satisfactorily remedied by hinging the screen door to the opposite jamb or enlarging the platform. Plaintiffs' proofs also included documentary evidence that within three years prior to her fall two virtually identical accidents had occurred in the housing project and that the Authority had been advised by its own

insurance carrier that the manner in which the screen doors were hung was the causative factor and should be remedied.

It is evident that these facts, if proved at trial, would support a prima facie case of actionable negligence on defendant's part. See N.J.S.A. 59:4-2, expressly declaring the liability of a public entity for

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

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.*fn1

And see, e.g., Meta v. Cherry Hill Tp. , 152 N.J. Super. 228 (App. Div. 1977); McGowan v. Eatontown , 151 N.J. Super. 440 (App. Div. 1977); Whaley v. Hudson Cty. , 146 N.J. Super. 76 (Law Div. 1976).

The Authority, as indicated, sought to avoid the liability consequence resultant from application to the facts here of N.J.S.A. 59:4-2 by relying on the immunity provision of ...


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