On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None.
This case concerns the death of a five-year-old child in a fire. Plaintiffs allege a dangerous condition at defendant's high-rise apartment building as a cause of death. Plaintiffs further assert the absence of smoke detectors as evidence of the dangerous condition. We granted certification, 99 N.J. 176 (1984), to review the Appellate Division's determination, in an unreported opinion, that defendant, Newark Housing Authority (the Authority), is immune from liability for plaintiffs' claims under the "plan or design" immunity afforded by N.J.S.A. 59:4-6, part of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3 (the Act). In that court's view "the installation of a smoke detector system would have been integral to the original construction of defendant's high-rise apartment," mandating as a matter of law that plaintiffs' claims be barred because of plan or design immunity.
We reverse. We do not agree with the court below that it must be concluded "as a matter of law" that the installation of smoke detectors, or, more accurately, the decision not to provide for such installation, was integral to the construction of the apartments. Moreover, defendant's proofs do not otherwise require dismissal of plaintiffs' claims on the basis of design immunity.
At the outset we emphasize what this case is about, what it is not about, and the limited effects that follow from rigorous analysis of the principles of decision at work here. Our decision in no way indicates that the Housing Authority is or should be considered to have maintained a "dangerous condition" on the premises. Each of the strict conditions for public entity liability under N.J.S.A. 59:4-2 must be met. Specifically,
it is plaintiffs' burden to establish not only that the fire safety condition was dangerous but that any actions by defendant to address the alleged condition were "palpably unreasonable." N.J.S.A. 59:4-2.
Palpable unreasonableness refers to conduct which is "plainly, obviously, distinctly or manifestly unreasonable." Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div.1977), rev'd on other grounds, 160 N.J. Super. 497 (App.Div.1978), aff'd, 79 N.J. 547 (1979). The burden of proving that the action or inaction of the public entity is so unreasonable as to warrant a recovery under N.J.S.A. 59:4-2 rests with the plaintiff. Kolitch v. Lindedahl, 100 N.J.  at 493; see also Fox v. Township of Parsippany-Troy Hills, 199 N.J. Super. 82, 90-91 (App.Div.), certif. den., 101 N.J. 287 (1985). [ Wooley v. Board of Chosen Freeholders, 218 N.J. Super. 56, 61-62 (App.Div.1987)]
In addition, the Housing Authority's discretionary decision "in the face of competing demands * * * [about] how [best] to utilize or apply existing resources," N.J.S.A. 59:2-3(d), in phasing-in its smoke-detector system cannot be called into question unless the factfinder "concludes that the determination of the public entity was palpably unreasonable." N.J.S.A. 59:2-3(d). With these preliminary observations, we address the design immunity issue as projected in this case.
Plaintiffs seek recovery for personal injuries of plaintiff Stephanie Thompson, property damage sustained by Stephanie and Nathaniel Thompson, and damages flowing from the injuries to and the wrongful death of Tamara Thompson as the result of a fire in plaintiffs' apartment. The apartment was located in the Scudder Homes project in Newark, a public housing complex owned and operated by the defendant Authority, which built the project in 1961.
The Thompson family moved into their Scudder Homes apartment before 1979. When constructed in 1961, the apartment buildings were not equipped with smoke detectors, but in 1979 Newark enacted an ordinance that called for the installation and maintenance of smoke detectors in sleeping areas. The ordinance mandated compliance within three months of its
passage. In fact the Authority started to install smoke detectors in 1979, but plaintiffs' apartment was one of many not yet equipped with the safety devices when a fire broke out on April 6, 1980. In the confusion of her flight from the premises with her other children, Stephanie Thompson left behind her five-year-old daughter Tamara, who in her effort to escape fell from a sixth-story window in the apartment. She died the following day. Given the posture of the case as it comes to us on judgment for defendant on motion at the close of the evidence, R. 4:40-2, we assume that the absence of smoke detectors was a proximate cause of plaintiffs' injuries, losses, and damages, including the injuries to and death of Tamara.
Plaintiffs' complaint sets forth a cause of action under the Act without referring, however, to any specific section as a basis for liability. Defendant's answering pleading likewise raises the Act as a defense without pinpointing any particular section or provision as a ground for immunity. We are satisfied nevertheless that the parties and both courts below perceived the case as presenting the issue of liability arising from a dangerous condition of the property, see N.J.S.A. 59:4-2, and the issue of immunity for "plan or design," as provided by N.J.S.A. 59:4-6. Likewise adverted to at trial was N.J.S.A. 59:2-3, which relieves a public entity from liability for the exercise of discretion when, in the face of competing demands, it determines whether and how to use or apply existing resources, including those allocated for equipment, facilities, and personnel, "unless a court concludes that the determination of the public entity was palpably unreasonable."
The foregoing statutory sections provide the framework for our analysis. The Act's general liability section, N.J.S.A. 59:4-2, reads in full as follows:
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 ...