On appeal from the Superior Court, Law Division, Hudson County.
Fritz, Furman and Deighan. The opinion of the court was delivered by Furman, J.A.D.
[193 NJSuper Page 407] Defendant housing authority appeals from jury verdicts of $650,000 in favor of infant plaintiff and $16,389.90 in favor of his mother as his guardian in an action under N.J.S.A. 59:4-2 of
the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. While playing in a common yard outside the rear door of the building where he resided in defendant's housing project, infant plaintiff, then aged seven, was struck by a bicycle frame thrown or dropped from a stairwell window. He suffered permanent brain damage.
Defendant urges on appeal that, because plaintiffs failed as a matter of law to establish liability for a dangerous condition of property under N.J.S.A. 59:4-2, the trial court erred in denying its motions for dismissal at the close of plaintiffs' case and for judgment notwithstanding the verdict. It also charges error in the admission into evidence of a hearsay statement by Kenneth Gourdine, then a juvenile, that he threw the bicycle frame out of the eighth-floor stairwell window; in the admission into evidence of a section of the Jersey City Property Maintenance Code; and in the trial court's instruction to the jury that failure to repair or replace a missing window frame would have constituted a violation of that code, which would not by itself conclude the issue of liability against defendant, but could be considered by the jury along with the other evidence in the case.
In the light most favorable to plaintiffs, as we must view it, the evidence supporting plaintiffs' cause of action was as follows. The upper window frame on the eighth-floor stairwell window above the rear door was missing, enlarging the aperture from a maximum of about 56 1/2 inches by 7 inches when opened with the upper frame intact to about 56 1/2 inches by 15 to 17 inches; the upper frame had been missing for two weeks or longer; the bottom of the upper window was about four feet above the floor; the window was recessed; the bicycle frame was about 34 inches by 28 1/2 inches by 10 inches; the bicycle frame could be thrown, as well as dropped, out of the window with the upper window frame missing but could not be thrown out of the window with the upper window frame intact; the bicycle frame was thrown, not dropped, because it cleared a canopy above the rear door when it struck plaintiff at play in
the common yard outside the rear door; Kenneth Gourdine admitted that he threw the bicycle frame out of the eighth-floor stairwell window; several prior complaints of debris thrown or dropped from windows had been reported; a tenant had been struck by a piece of glass thrown from a window three months before; someone else had been struck by a dog food can thrown from a window about eight days before; the common yard where plaintiff was struck was an area frequented by children and others; defendant employed a glazier full-time to repair and replace windows.
N.J.S.A. 59:4-2 establishes governmental tort liability for injury caused by a dangerous condition of public 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 ...