The opinion of the court was delivered by: Pollock, J.
Argued September 22, 1997
On certification to the Superior Court, Appellate Division.
The New Jersey Tort Claims Act (Act), N.J.S.A. 59:4-1a, defines a "dangerous condition" on the property of a public entity as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." This appeal questions the extent to which the reasonableness of a claimant's use of property is relevant to the determination whether the condition of the public entity's property was dangerous. The Law Division granted the motion for summary judgment of defendant, Township of Middletown (Middletown). In an unreported opinion, the Appellate Division reversed. We granted the Middletown's petition for certification, 147 N.J. 579 (1997). We reverse the judgment of the Appellate Division and reinstate the Law Division's judgment of dismissal.
Because this matter arises on defendant's motion for summary judgment, we accept plaintiff's version of the facts and give plaintiff the benefit of all favorable inferences. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995); Judson v. People Bank & Trust Co., 17 N.J. 6 (1954). The underlying accident occurred on a Middletown parking lot adjacent to a New Jersey Transit station. At night the lot is illuminated. Middletown also owns thirty-five parks, many of which have football fields. Two of the parks have lighting.
Plaintiff, Dennis Garrison, was injured at about 9:30 p.m. on November 19, 1989, while playing touch football on the parking lot. No one on behalf of Middletown gave permission to the players to play football on the parking lot. During previous football games on the parking lot, patrolling police officers had not told the players to stop. Plaintiff and his friends used the lot because it was lighted and the lines demarcating the parking spaces served as boundaries.
Before the game began, plaintiff knew that the area on which he was playing had an uneven surface or declivity. In that area, which was about twenty-one feet from one of the "sidelines," the paved part of the lot was one and one-half inches lower than adjacent broken gravel.
Plaintiff, who was just a few weeks away from his seventeenth birthday at the time of the accident, nonetheless decided to play night football on the lot. He and his friends agreed to try to avoid the uneven pavement. They also agreed not to start any plays in that area. After they had been playing for about an hour, however, plaintiff tried to rush the quarterback on the opposing team. While trying to evade a blocker, plaintiff ran from the pavement to the adjacent area, planted his foot on the uneven surface, and damaged his knee.
Plaintiff sued both Middletown and New Jersey Transit alleging that they had negligently allowed a dangerous condition to exist in the parking lot and that the condition caused his injury. Both defendants moved for summary judgment. Ultimately, the Law Division granted both motions. Although plaintiff did not appeal from the judgment of dismissal in favor of New Jersey Transit, he did appeal from the judgment in favor of Middletown.
In granting Middletown's motion, the Law Division reasoned that Middletown neither intended nor anticipated plaintiff's use of the parking lot, that plaintiff knew that the pavement was uneven in the area where the accident occurred, and that the uneven pavement was not a "dangerous condition" as defined by the Act.
The Appellate Division reversed, determining that the Law Division had misconstrued the Act by focusing on the intended use of the parking lot. According to the Appellate Division, plaintiff's use of the property as a football field was foreseeable. Although Middletown could assert plaintiff's negligence as an affirmative defense, his negligence would not constitute a lack of due care sufficient to bar his claim. The Appellate Division concluded that plaintiff presented sufficient evidence of Middletown's actual or constructive knowledge of the defective condition, and of the unreasonableness of Middletown's actions concerning the defective condition, to preclude summary judgment for Middletown.
The Act establishes a system for public entities in which immunity from tort liability is the general rule and liability is the exception. Bombace v. City of Newark, 125 N.J. 361, 372 (1991). Thus, the Act sets forth as its purpose:
It is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carrying out the above legislative declaration.
To recover under the Act, a plaintiff must prove, among other things, that at the time of the injury the public entity's property was in a dangerous condition, that the condition created a foreseeable risk of the kind of injury that occurred, and that the condition proximately caused the injury. N.J.S.A. 59:4-2. Even then, the Act imposes no liability on a public entity if "the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." N.J.S.A. 59:4-2.
Essential to the determination of a public entity's tort liability is the definition of the statutory term "dangerous condition." The Act defines a "dangerous condition" as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1a. By its terms, the Act explicitly requires that a dangerous condition can be found to exist only when the public entity's property "is used with due care."
The issue in the instant case is not whether Middletown intended the parking lot to be used for night football games. Rather, the issue is whether the declivity in the parking lot created a substantial risk of injury when the property was used with due care. So stated, our analysis focuses not on plaintiff's individual conduct, but on whether playing night football on a paved parking lot with a known declivity constitutes a use of the property with the care that was due.
If a public entity's property is dangerous only when used without due care, the property is not in a "dangerous condition." Accordingly, in Speziale v. Newark Housing Auth., 193 N.J. Super. 413, 417 (App. Div. 1984), the Appellate Division reversed a jury verdict for the plaintiff because she failed to show that two to three inches of rain water on the floor created a substantial risk of injury when the property was used with due care. The plaintiff slipped and fell while attempting to step from a staircase over a pit filled with water onto a single step leading into a laundry room. Id. at 415. Because the plaintiff could have sought assistance or waited for the water to abate, she had not used the property with due care. Id. at 417. Hence, the condition of the property did not constitute a dangerous condition, and the case should not have been submitted to the jury for a determination of contributory negligence. Ibid.
Although the plaintiff's lack of due care negated a finding of a dangerous condition, the Appellate Division emphasized that a plaintiff's contributory negligence will not ordinarily immunize a public entity from liability. Id. at 418. The Appellate Division reasoned that such a Conclusion would be contrary to N.J.S.A. 59:9-4, which provides that a plaintiff's negligence shall not bar her claim unless her negligence is greater than that of the public entity. Id. at 418-19. The court indicated that, when a condition is dangerous to all users, the plaintiff may be able to establish the existence of a dangerous condition even though he may have been contributorily negligent:
For instance, let us assume that a county constructs a straight road which abruptly, without warning signs or indicia, veers at a 45 degree angle. That condition could be said to create a substantial risk of injury when used in the darkness with due care by driver generally in a manner reasonably foreseeable that it will be used. However, the individual driver who traverses such a road at an excessive rate of speed while embracing a companion may still be found culpable of contributory negligence by a jury.
Similarly, in Hawes v. New Jersey Dep't of Transp., 232 N.J. Super. 160, 164 (Law Div.), aff'd, 232 N.J. Super. 159 (App. Div. 1988), the Law Division granted summary judgment in favor of New Jersey Transit and held that unprotected railroad tracks did not constitute a dangerous condition. In that case, a train struck and killed the decedent as he tried to cross a railroad track. Id. at 161. Plaintiff, the administratrix of decedent's estate, argued that New Jersey Transit, although it knew trespassers regularly used the crossing, created a dangerous condition by failing to erect a fence or take other protective measures. Ibid. The Law Division rejected the argument, finding that anyone using the railroad's property with due care would not encounter a substantial risk of harm. As the court stated, common sense dictates that a person using due care would make certain no trains were approaching before walking across a railroad track. Exercising even a minimum of care, a person should be able to eliminate any chance of being hit by a train. Accordingly, [the railroad's] property did not constitute a dangerous condition.
Finally, in Lytle v. City of Newark, 166 N.J. Super. 191, 192 (Law Div. 1979), the parties' automobiles collided in an intersection in which the traffic lights were not working. Aware that the traffic lights did not work, plaintiff nonetheless proceeded through the intersection after she saw the traffic light a block ahead turn green. Id. at 195. She claimed that the broken lights constituted a dangerous condition. Id. at 193. The Law Division granted a judgment of dismissal in favor of the city of Newark. It concluded that the manner in which she proceeded "indicates that the property was not used with due care. As such, a dangerous condition could not have existed." Ibid. Additionally, the Law Division noted that the plaintiff failed to demonstrate "how the absence of a traffic control signal in any way contributed to the accident." Ibid.
Because the California Tort Claims Act was the model for the Act, we often consider interpretations of that Act when interpreting our own. Levin v. County of Salem, 133 N.J. 35, 46 (1993). Consideration of California law is appropriate here because the definition of "dangerous condition" in the California statute, Cal. Gov't Code § 830a, is nearly identical to that in N.J.S.A. 59:4-1a. The California Law Revision Commission's Comment to Cal. Gov't Code § 830 explains:
A condition is not dangerous within the meaning of this chapter unless it creates a hazard to those who foreseeably will use the property or adjacent property with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.
The plaintiff is required to establish that the condition was one that created a hazard to a person who foreseeably would use the property or adjacent property with due care.
Pursuant to that legislative mandate, California courts, like those in New Jersey, have refused to find that property is in a dangerous condition if the property poses a substantial risk of injury only to those who engage in objectively unreasonable conduct. For example, in Fredette v. City of Long Beach, the plaintiff injured himself when he dove into shallow water from a pier in the final stages of reconstruction. 187 Cal. App. 3d 122, 127-28 (Ct. App. 1986). He argued that the absence of barricades or warning signs on the pier created a dangerous condition. Id. at 129. The California court rejected that argument, explaining:
The negligence of a plaintiff-user of public property . . . is a defense which may be asserted by a public entity; it has no bearing upon the determination of a "dangerous condition" in the first instance. So long as the plaintiff-user can establish that a condition of the property creates a substantial risk to any foreseeable user of the public property who uses it with due care, he has successfully alleged the existence of a dangerous condition regardless of his lack of due care. [Id. at 131 (citations omitted).]
On the other hand, if "it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not dangerous." Ibid. In sustaining a jury verdict for the city of Long Beach, the court found that "the physical characteristics" of the pier notified "persons exercising due care" that the activity in which the plaintiff participated was, "in and of itself, a hazardous activity that should be avoided. We think it clear that no member of the public may ignore the notice which the condition itself provides." Id. at 132. The court concluded that the city of Long Beach had not created a dangerous condition, and that its failure to erect barricades or post signs was not the proximate cause of plaintiff's injuries. Id. at 131.
In Rombalski v. City of Laguna Beach, 213 Cal. App. 3d 842, 849 (Ct. App. 1989), a thirteen-year old plaintiff was rendered a quadriplegic after diving from a rock on a public beach. Affirming summary judgment for the municipality of Laguna Beach, the Court of Appeal held as a matter of law that the rock was not a dangerous condition because the plaintiff could not show that he had exercised due care. Id. at 849-50. The court reasoned that "[i]n Fredette, as in this case, the condition of the rock only become ...