On appeal from the Warren County Court.
Crane, Milmed and King. The opinion of the court was delivered by King, J.A.D.
In this case the infant plaintiff, Robert Williams, brought suit against the Town of Phillipsburg through his guardian Gerald Williams, who also sued individually, for personal injuries. The town's liability was predicated on the section of our Tort Claims Act, N.J.S.A. 59:4-2, which described the substantive requirements for imposition of liability on a public entity for conditions of public property causing personal injury.
On July 3, 1974 Robert was playing behind the backstop of a municipally-owned baseball field near his home when he fell and injured his eye on glass debris. The case was tried on liability only. The contest focused on the responsibility of the town for the dangerous condition of the playing field and the contributory negligence of the infant plaintiff. The town disputed the extent of its notice of the condition and proved the efforts it took to keep the ballfield clear of glass. The broken glass apparently appeared recurrently as a result of teenage nocturnal activities.
The jury returned a liability verdict of 66% on defendant town's part and 34% on the infant plaintiff's part. Following the trial on liability the parties entered into a consent judgment for $15,000 in plaintiffs' favor, subject to the right of defendant to appeal the jury verdict of liability. If defendant's appeal were unsuccessful, the $15,000 jury verdict was to be apportioned in accordance with the jury's findings on liability. It was further agreed in the consent judgment that the judgment on the damage amount would "survive any retrial as to liability aspects."
On this appeal defendant contends that the trial judge erred in the jury instructions relating to the town's substantive liability under the Tort Claims Act.
N.J.S.A. 59:4-2 specifically states the conditions under which a public entity may be liable for injury caused by a condition of its property:
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
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. [Emphasis added]
Plaintiff did not proceed under subsection (a) relating to negligent acts or omissions of an employee of the public entity creating the dangerous condition. Plaintiff proceeded under subsection (b) because the broken glass hazard was created by unknown third persons.
Plaintiff was therefore required to prove these elements: (1) a dangerous condition of property at the time of injury, (2) which proximately caused the injury, (3) a reasonably foreseeable risk of the kind of injury incurred, and (4) actual or constructive notice of the condition in compliance with N.J.S.A. 59:4-3. Even if these elements were established, liability would not attach under N.J.S.A. 59:4-2 unless the taking or the failure to take measures to protect against the condition was "palpably ...