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Ross v. Moore

Decided: October 28, 1987.

LISA ROSS, PLAINTIFF-APPELLANT,
v.
KIMBERLY ANN MOORE, DENNIS J. HARKINS, BOROUGH OF HI-NELLA, BOROUGH OF SOMERDALE, ERNEST THOMAS, EFFIE THOMAS AND MARY E. HARKINS, DEFENDANTS, AND STERLING HIGH SCHOOL BOARD OF EDUCATION, DEFENDANT-RESPONDENT



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

Furman, Long and Scalera. The opinion of the court was delivered by Furman, P.J.A.D.

Furman

After entry of final judgment against defendants Thomas and Moore pursuant to settlement, plaintiff appeals from summary judgment previously granted in favor of defendant Sterling High School Board of Education (school). We affirm.

Plaintiff was enrolled as a student in an adult education evening course at the school. She paid a tuition fee. On the evening when she was injured, she was to attend her third class. Her husband, who drove her by car, found no available space at the school and parked in a shopping center parking lot opposite the school across Warwick Road, a county road. Plaintiff was walking across Warwick Road, not at an intersection, when she was struck by a car owned by defendants Thomas and driven by defendant Moore. The school's business administrator in his deposition acknowledged awareness that adult evening students parked in the shopping center parking lot and walked across Warwick Road to the school. There is no reference in the record to any prior accident to an adult evening student in crossing Warwick Road to or from class.

On appeal plaintiff's primary theory of governmental tort liability is novel. She argues that the school's motion for summary judgment should have been denied under N.J.S.A. 59:4-2 because public property owned or controlled by the school was in a dangerous condition proximately causing her

injury. Recognizing that Warwick Road itself is not owned or controlled by the school, plaintiff's attenuated argument, without supporting authority, is that the school property itself was in a dangerous condition because of its limitation to about 250 parking spaces and the reasonable foreseeability that an adult evening student en route to class, like plaintiff unable to park at the school, would park in the shopping center parking lot opposite the school and from there jaywalk across Warwick Road and be struck by a vehicle.

At oral argument before us, plaintiff conceded that the school parking lot was not itself in a dangerous condition creating a substantial risk of injury when used with due care, N.J.S.A. 59:4-1; and, specifically, that no danger inhered in the school's failure to provide sufficient parking spaces for adult evening students except in combination with the reasonable foreseeability of an accident to an adult evening student forced to park elsewhere.

In applying the Tort Claims Act, N.J.S.A. 59:1-1 et seq., we have consistently rejected the contention that dangerous activities of other persons on public property, even if reasonably foreseeable, establish a dangerous condition of the property itself, Sharra v. City of Atlantic City, 199 N.J. Super. 535, 540-541 (App.Div.1985); Setrin v. Glassboro State College, 136 N.J. Super. 329, 333-335 (App.Div.1975).*fn1

Plaintiff would go a step beyond Sharra and Setrin and premise governmental liability for a dangerous condition of property upon a dangerous activity by a third party somewhere off the property. That step is not authorized under statute or decisional law. As we have said, no danger inhered in the

school's property itself in the relative shortage of parking spaces; no danger was let loose on the school's property which resulted in injury to plaintiff on the adjoining public highway.

Although unnecessary for our decision, we point out that immunity under N.J.S.A. 59:2-3(d) would bar liability for failing to provide sufficient parking spaces, even if contrary to our view, such deficiency is assumed to be a dangerous ...


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