On appeal from Superior Court, Law Division, Essex County.
Bischoff, Botter and Morton I. Greenberg. The opinion of the court was delivered by Bischoff, P.J.A.D.
This appeal arises from the filing of a complaint against the defendant Newark Board of Education (board) and the City of Newark seeking recovery of damages resulting from an accident in which the infant plaintiffs Christopher Law and Darryl Berger were run over by a city fire truck while participating in a recreational program run by the board.*fn1
Trial disclosed the following facts. During the early evening of October 7, 1975 plaintiffs Christopher Law, age 8, and Darryl Berger, age 11, were playing basketball with several other boys as part of a recreational program run by defendant Newark Board of Education at the McKinley Street School in Newark. Under this program the board supplied recreational facilities and supervisors at the McKinley Street School from 8:30 a.m. to 9:00 p.m. Although children apparently were not required to participate in any particular activity or given instruction, they were allowed to use the school facilities under the supervision of board employees.
At about 7 that evening the Newark Fire Department responded to a dumpster fire on the school playground. Two fire trucks, a "pumper" and a "hook and ladder," entered the school yard through its only practicable entrance, a gate approximately 12 feet wide. While the firefighters extinguished the fire quickly, the excitement quite naturally attracted the young children playing in the school yard, and the hook and ladder was soon covered with children, even though one fireman stayed
with the truck. When the other firemen returned, however, they ordered the children off and prepared to leave.
Christopher and Darryl were among those children drawn to the scene by the excitement of the fire. They repeatedly climbed on and jumped off the truck until ordered off by the returning firemen. But as the hook and ladder left the school yard the two boys jumped back on -- out of the sight of the firemen. And while the firemen stopped the truck to order some other children off, Christopher and Darryl remained on the truck until it had passed through the school yard gate and turned into the street. Unfortunately when the boys attempted to jump off the moving truck, they slipped and fell underneath. Both boys were run over by the truck and seriously injured. The firemen returned to their station ignorant of the accident. Moreover, the playground supervisors were not near the gate when the truck left, despite the number of children around the truck and the obvious danger.
Prior to trial, all plaintiffs settled with the City of Newark and settlements in the following amounts were approved by the court:
$36,900 in favor of Levada Berger, individually;
$28,100 in favor of Darryl Berger, by his guardian ad litem Levada Berger;
$12,000 in favor of Anita Law, individually; and
$13,000 in favor of Christopher Law, by his guardian ad litem Anita Law.
Despite the settlements, the case was tried to a jury against both defendants, the board and the City of Newark. At the conclusion of trial the jury found defendant board 75% negligent and the City of Newark 25% negligent and awarded damages to Christopher Law in the amount of $1,500, to Anita Law in the amount of $4,700, to Darryl Berger in the amount of $70,000 and to Levada Berger in the amount of $26,200.
On post-verdict motions by both plaintiffs and the board the trial judge held that under N.J.S.A. 59:9-3 all plaintiffs except Darryl Berger were barred from recovery since the amounts they received in settlement exceeded the damages awarded them by the jury, and that the $70,000 awarded Darryl Berger must be reduced by $28,100, the amount received in settlement.
The court then denied plaintiffs' motion for a new trial on damages but granted the board's motion for judgment notwithstanding the verdict on the ground that plaintiffs' action was barred by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq.
Plaintiffs appeal from the orders of the trial court granting the board's motion for a judgment notwithstanding the verdict, molding the verdict and denying their motion for a new trial on damages. The board appeals from the court's order molding the verdict. The appeals have been consolidated.
Multiple legal issues are presented by the consolidated appeals.
At the conclusion of plaintiffs' case defendant board moved unsuccessfully for judgment under R. 4:40-1. At the conclusion of trial the board renewed its motion, arguing that plaintiffs had failed to establish a standard of conduct by which the action of the board's employees were to be evaluated and that the board is immune from liability by virtue of the Tort Claims Act.
The trial judge found the crucial issue to be "whether the municipally owned hook-and-ladder can be deemed a public recreational facility under the supervision of the Board of Education. . . ." The judge concluded that plaintiffs' claim was barred by the Tort Claims Act since the truck was neither a public recreational facility under the board's supervision nor a "dangerous condition" of public property. Plaintiffs argue on appeal that the board may be held liable under the act for its employees' negligent supervision of the children. We agree and reverse the judgment entered for the board notwithstanding the verdict.
A public entity is liable for injuries proximately caused by acts or omissions of its employees within the scope of their employment but may not be held liable when the employee is not liable, N.J.S.A. 59:2-2, and "a public employee is liable for injury caused by his act or omission to the same ...