On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-8-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 26, 2011 - Decided: Before Judges Cuff and Sapp-Peterson.
Plaintiff Edward Champion, individually and on behalf of his minor son, Christopher, filed a complaint seeking compensatory damages for injuries sustained by his minor son when he collided with a motor vehicle driven by defendant James Pugsley. The minor plaintiff was crossing the street in front of his house on his bicycle at the time of the collision. Plaintiffs appeal from an order granting summary judgment in favor of defendant Township of Middle (Township).*fn1 We affirm.
Plaintiffs argue that the street where the accident occurred was a dangerous condition of public property. They assert that drivers using the street regularly drove in excess of the twenty-five mile per hour speed limit. They also allege that the street is in close proximity to a school and that residents had requested Township officials to place speed bumps and/or humps in the street to cause drivers to proceed more slowly. Plaintiffs argue that the failure to enforce the speed limit and the failure to install these traffic calming devices created a dangerous condition of public property.
Judge Darryl Todd granted the Township's motion for summary judgment. He held that plaintiffs failed to establish a dangerous condition of public property.
Plaintiffs' claim against the Township is governed by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Liability of a public entity for injury caused by a condition of its property is governed by N.J.S.A. 59:4-2. In order to succeed on their claim, plaintiffs must establish "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 . . . Ibid. In addition, plaintiffs were required to establish "a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition," N.J.S.A. 59:4-2a, or the "public entity had actual or constructive notice of the dangerous condition," N.J.S.A. 59:4-2b. In addition, plaintiffs must establish that action or inaction of the public entity was palpably unreasonable. N.J.S.A. 59:4-2.
Plaintiffs must establish a defect in the public property. In other words, "[i]f a public entity's property is dangerous only when used without due care, the property is not in a 'dangerous condition.'" Garrison v. Twp. of Middletown, 154 N.J. 282, 287 (1998).
In Garrison, the plaintiff was injured playing touch football in the parking lot of a commuter rail facility. Id. at 285. The plaintiff knew that the lot had an uneven surface within approximately twenty feet from one of the "sidelines." Ibid. Finding that the record did not establish that the uneven surface posed a risk to commuters using the parking lot for its intended purpose, the Court held the parking lot could not be considered a dangerous condition for anyone who used it with due care. Id. at 293.
The Court has also held that public property, such as a bridge, cannot be considered dangerous simply because third parties use the bridge for risky activities. Levin v. Cnty. of Salem, 133 N.J. 35, 37 (1993). In Levin, a man dove from a bridge into shallow tidal waters and suffered a serious injury. Ibid. Public officials knew that the bridge was used for swimming and diving, and a young woman had suffered a serious injury when she dove into the river from the bridge. Id. at 39. The plaintiff argued that the entity should have placed warnings on the bridge or supervised the activities on the bridge. Id. at 41. The Court noted that the issues required it to identify the "culpable cause of the accident." Id. at 43. The Court found "no defect in the bridge itself that caused or contributed to cause the tragic accident." Id. at 49. Dangerous activities of third parties created the danger. Id. at 37. Therefore, the plaintiff could not establish that a dangerous condition of the bridge caused his injury. Ibid.
Notably, in Levin, the Court also observed that the plaintiff's claim failed to the extent he sought to establish a dangerous condition based on a design flaw, or to erect appropriate warning signs, or to supervise the activities on the bridge. Id. at 43. The Court noted each of the cited omissions was insulated from liability by specific immunities in the TCA. Ibid.
Applying Garrison, plaintiffs fail to establish that the street on which this collision occurred is dangerous when used with due care. The road is properly marked. There are no uneven surfaces or potholes. There are no obscured sightlines. Plaintiffs have simply argued that the risk of harm to pedestrians is elevated when a driver operates a motor vehicle without due care. The risky or dangerous activities of a reckless or inattentive driver, however, do not render an otherwise properly constructed and safe street a dangerous condition. Finally, as in Levin, to the extent plaintiffs rely on the absence of speed bumps and/or pedestrian warning signs, or the failure of police to enforce the speed limit, each of these omissions is insulated from liability by several specificimmunities, including N.J.S.A. 59:4-4 (failure to provide emergency warning signals); N.J.S.A. 59:4-5 (failure to provide ordinary traffic signals); and N.J.S.A. 59:4-6 (plan or design).