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Davenport v. Borough of Closter

November 8, 1996

THOMAS DAVENPORT, PLAINTIFF-APPELLANT,
v.
BOROUGH OF CLOSTER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication November 8, 1996.

Before Judges Shebell, P.g. Levy and Braithwaite. The opinion of the court was delivered by.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

Plaintiff, Thomas Davenport, appeals from a summary judgment dismissing his complaint. The complaint against defendant, Borough of Closter, alleged that as a result of its negligence, plaintiff fell on Borough property and sustained serious injuries. Therefore, this appeal deals with the Tort Claims Act (TCA or Act), N.J.S.A. 59:1-1 to 12-3. Under the Act, immunity is the norm, unless liability is provided for by the Act. Rochinsky v. New Jersey Dep't of Transp., 110 N.J. 399, 407, 541 A.2d 1029 (1988). The Legislature specifically stated that "'the [court's] approach should be whether an immunity applies and if not, should liability attach.'" Id. at 408 (quoting N.J.S.A. 59:2-1 Task Force Comment). Plaintiff seeks to impose liability under N.J.S.A. 59:4-2.

On February 1, 1994, plaintiff fell on accumulated snow and ice when walking across Borough property. He was rendered unconscious, experienced convulsions and cardiac arrest and went into a comatose state. He was hospitalized until February 22, 1994, and missed many months from work and incurred substantial medical expenses as a result of the fall. According to plaintiff, he was crossing a vacant lot owned by the Borough adjacent to Borough Hall in an attempt to get to a store located in a nearby strip mall, as he could not reach the store via the sidewalk or the street due to the accumulation of snow and ice on them. He said there was a "well-worn path" by which he and other pedestrians were crossing the lot. He alleged that the lot was also in a dangerous condition due to the accumulation of snow and ice, causing him to fall.

Plaintiff maintains that the dangerous conditions of the sidewalk and street were created by the Borough's negligent snow removal activity, and that a field inlet on the lot was covered by snow placed there by Borough employees. The blocked inlet thereby prevented the drainage of surface water, leaving the lot covered with fallen snow and ice. He claims the Borough had either actual or constructive notice of these dangerous conditions, was aware of the use of the lot as a crossway and failed to either remedy the dangerous condition or post warnings.

Therefore, appellant argues that he has stated a cause of action under N.J.S.A. 59:4-2, which states:

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.

The essence of the Law Division Judge's decision granting summary judgment was that, no matter which factual scenario was considered, immunity would operate so as to discharge the Borough from liability. Plaintiff argues that the Judge erred in finding that the Borough would be immune from suit, and also that ...


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