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Ogborne v. Mercer Cemetery Corp.

January 29, 2009

SUZANNE K. OGBORNE, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
MERCER CEMETERY CORPORATION AND JOHN DOES 1-10 (PERSONS RESPONSIBLE FOR THE OWNERSHIP, MAINTENANCE AND CONTROL OF SAID PREMISES WHERE PLAINTIFF FELL AND SUSTAINED INJURIES), DEFENDANTS, AND CITY OF TRENTON, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.

In this appeal, the Court must decide whether, under the Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3, the conduct of a public entity and its employee should be governed by the general rule of vicarious liability set forth in N.J.S.A. 59:2-2, or under public entity liability with regard to the dangerous condition of public property set forth in N.J.S.A. 59:4-2.

On November 26, 2001, plaintiff, Suzanne Ogborne, decided to take a walk through Mercer Cemetery Park (Park), which is located in Trenton. The Park contains walking paths, benches, and picnic areas for the public. It has two wrought iron gates that are used as public entrances, and it is entirely enclosed, partially by a wrought iron picket fence approximately five or six feet in height and partially by a brick wall that ranges in height from three to five feet measured from inside.

The City of Trenton's Department of Recreation, Natural Resources, and Culture (City) is responsible for opening and closing the gates to the Park. On weekdays, the gates are unlocked from 7:30 a.m. and locked around 4:30 p.m. Prior to locking the gates, an employee of the City is required to check the interior of the Park to make sure no one is inside. The employees responsible for locking and unlocking the gates are the only persons who possess the keys to the locks.

Ogborne, who was thirty-five years old at the time, walked leisurely through the Park for about thirty minutes. When she attempted to leave, she noticed that the front gate was locked. She walked around the perimeter of the Park hoping to discover a means of egress or, at least, someone who could provide assistance, but she was unsuccessful. Ogborne finally decided to scale a three-foot section of the brick wall to escape the Park. From a seated position on top of the wall, Ogborne dropped six to seven feet to the ground below. She landed awkwardly and fractured her right tibia. She could not move and remained on the ground for approximately thirty minutes until a passerby noticed her and summoned help.

Tests revealed that Ogborne suffered fractures of her right tibia -- the bone was broken into three pieces. She underwent surgery, and a rod and screws were inserted into her leg to facilitate healing. Ogborne was out of work for three months, and developed a pulmonary embolism as a result of the injury and/or the treatment for the injury.

Ogborne filed a complaint alleging that the City negligently maintained the Park, causing her to fall and suffer permanent injury. Ogborne sought partial summary judgment. The trial court granted the motion, finding that the City was negligent and that Ogborne's injuries met the Act's threshold to recover pain and suffering damages, but held that the issues of proximate cause and comparative fault must be decided by a jury. The City moved for reconsideration, contending that Ogborne's cause of action should be governed by N.J.S.A. 59:4-2, which holds public entities liable for injuries caused by "dangerous conditions" on public property and requires a finding that a defendant acted in a "palpably unreasonable" manner. The trial court denied the motion.

The jury returned a verdict in favor of Ogborne and awarded damages in the amount of $1,640,000. The City appealed. In an unpublished opinion, the Appellate Division affirmed in part, reversed in part, and remanded for a new trial on liability. The panel found that the trial court erred by applying the ordinary negligence standard pursuant to N.J.S.A. 59:2-2 and remanded for application of the more stringent "palpably unreasonable" standard pursuant to N.J.S.A. 59:4-2 because Ogborne's cause of action implicated a "dangerous condition" of property. In remanding for a new trial, the panel held that the parties must resubmit proofs of proximate cause and comparative fault, but concluded that the damages award need not be retried.

The Supreme Court granted Ogborne's petition for certification and the City's cross-petition for certification. 192 N.J. 599 (2007).

HELD: The "palpably unreasonable" standard of N.J.S.A. 59:4-2 applies to this cause of action because it concerns the physical condition of public property. In addition, the issues of proximate cause and comparative negligence must be retried because issues concerning the dangerous condition of the property and whether the City acted in a palpably unreasonable manner are intertwined with the issues of causation and foreseeability.

1. The guiding principle of the Act is that immunity from tort liability is the general rule and liability is the exception. This appeal does not present us with the clash between a liability provision and an immunity provision of the Act, but rather a clash between two liability provisions. N.J.S.A. 59:2-2 governs a plaintiff's cause of action when it turns on whether a public employee was ordinarily negligent in undertaking the action that caused the plaintiff's injury. The competing liability provision is N.J.S.A. 59:4-2, which states that a public entity will only be liable for injuries resulting from a dangerous condition of property created by an employee's negligence if the entity acted in a palpably unreasonable manner in failing to protect against the condition. The "palpably unreasonable" standard is not defined by the Act. This Court, however, has stated that the palpably unreasonable standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff than the standard of ordinary negligence. The Court further explained that for a public entity to have acted or failed to act in a manner that is palpably unreasonable, "it must be manifest and obvious that no prudent person would approve of its course of action or inaction." (pp. 9-13)

2. In the present case, the Court must determine whether the ordinary negligence standard of N.J.S.A. 59:2-2 must give way to the palpably unreasonable standard of N.J.S.A. 59:4-2 when a public employee's negligent conduct causes a plaintiff to come into contact with a condition of property that causes his or her injury. In light of the Act's silence on that issue, the Court looks to the underlying legislative intent. It is obvious that the Legislature intended public entities to receive broad immunity protection under the Act. As a result, this Court has held that an immunity provision of the Act will trump an applicable liability provision. That same principle guides the result here. Consistent with the Legislature's purpose of providing broad immunity under the Act, the Court believes that the Legislature also intended a broad reading of the dangerous condition of public property provisions of N.J.S.A. 59:4-2, with its higher standard for imposition of liability. Therefore, when the facts are reasonably debatable that a public employee's act or failure to act created a dangerous condition of property, and that condition of property causes an injury, the higher standard of palpably unreasonable conduct operates to trump the ordinary negligence standard which otherwise applies when the act of a public employee causes an injury. (pp. 13-15)

3. It is obvious that if Ogborne had not been in the Park, the employee's conduct in locking the gates would not have created a dangerous condition of property. It was the combination of Ogborne being in the Park and the City's employee locking the gates that rendered the Park potentially dangerous to Ogborne. Under those conditions, it is reasonably debatable that the locking of the gates rendered the Park a dangerous condition because Ogborne was unable to walk out in the same manner that she entered the Park. Consequently, the Court agrees with the Appellate Division that the proper legal standard for judging Ogborne's claim against the City should have been the combined dangerous condition of property and palpably unreasonable standard pursuant to N.J.S.A. 59:4-2. (pp. 15-16)

4. The Court also agrees with the Appellate Division's conclusion that the issues of proximate cause and comparative negligence must be retried. Issues concerning the dangerous condition of the property and whether the City acted in a palpably unreasonable manner are intertwined with the issues of causation and foreseeability. (pp. 16-17)

5. Regarding the City's challenge to the damages verdict, the Court notes that the City did not move for a new trial based on the weight of the evidence. Absent a new trial motion on that ground, the claim that the damages verdict was against the weight of the evidence is not cognizable on appeal. Even if the Court were to find justifiable reason to disregard that rule, the Court finds no necessity to order a new trial on damages. This Court has held that when the damages award is not tainted by the error in the liability portion of the case and is fairly separable, retrial need not include the issue of damages. And, although the damages award here was high, it was reasonably supported by the evidence. Consequently, the Court finds no need to retry the damages issue. (pp. 17-19)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUSTICE WALLACE's opinion.

The opinion of the court was delivered by: Justice Wallace, Jr.

Argued October 6, 2008

In this appeal, we must decide whether, under the Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3, the conduct of a public entity and its employee should be governed by the general rule of vicarious liability set forth in N.J.S.A. 59:2-2, or under public entity liability with regard to the dangerous condition of public property set forth in N.J.S.A. 59:4-2. Plaintiff was trapped inside the Mercer Cemetery Park (Park) after an unidentified City employee locked the gates several hours before the Park was scheduled to close. Finding no other means of egress, plaintiff climbed atop a lower part of the brick wall surrounding the Park and dropped to the ground outside the walls. In doing so, she fractured her right tibia.

The trial court found that the public entity was vicariously negligent as a matter of law for the conduct of a public employee acting within the scope of employment, but that a jury must decide the issues of proximate cause and comparative negligence. A jury returned a verdict in favor of plaintiff and awarded her $1,640,000 in damages. On appeal, the Appellate Division held that the trial court should have applied N.J.S.A. 59:4-2 because plaintiff's injuries were allegedly caused by the dangerous condition of the property after the employee's actions had ceased. The panel remanded for a new trial on liability only, determining that the damages award was separate and distinct from the liability issues. We granted plaintiff's petition for certification raising the liability issues and ...


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