On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-347-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Hayden.
In this action filed pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, plaintiff Ruth Deane appeals from the June 10, 2011 Law Division order granting defendant Township of Toms River summary judgment and dismissing plaintiff's complaint for personal injuries. For the reasons that follow, we affirm.
Viewed most favorably to plaintiff, see Rule 4:46-2(c), Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment motion record discloses the following facts. Plaintiff brought this action for an injury she sustained as a result of a fall at the Winding River Park Ice Skating Rink, which was owned and operated by the Township. Plaintiff, a regular skater since 1990 who considered herself "fairly comfortable on ice," was skating at the Township rink on December 21, 2008. An event called "Santa Skate" was taking place, wherein an individual dressed as Santa Claus and two individuals dressed as elves skated with the other patrons. The event was sponsored by the Toms River Ice Skating Committee, an entity separate from the Township. The three costumed skaters were not Township employees. In previous years, this event had occurred at the rink without any mishaps. Rink attendance during this event was no greater than during a regular skating session.
While plaintiff was skating during the open public skate, she observed Santa and the elves skating without creating any disturbance. Then, after more than a half-hour, she noticed for the first time that one of the elves had started to distribute candy to the children on the rink. One to two seconds after plaintiff saw the elf distributing candy, two small children suddenly skated in front of her toward the elf. To avoid the children, plaintiff turned quickly to her left, lost her balance, and fell. She landed on her left arm, breaking the humerus.
The rink had large signs posted around the ice skating area, prohibiting anyone from bringing food or drinks onto the ice. If someone came on the rink with food, the employees were instructed to order the patron to leave the ice. This rule applied during events sponsored by the ice skating committee, and all participants were expected to obey the rules. The rink manager denied having any knowledge that the elf would distribute candy on the rink during the Santa Skate.
After the accident, plaintiff sought immediate medical attention. She had her shoulder immobilized for six weeks and missed one week from work. Thereafter, she engaged in a course of treatment, including physical therapy and injections, to relieve the pain and restrictions in her shoulder area. At the time of the summary judgment, she still had some limitations and pain while using her left arm, including while walking, typing, cleaning, walking her dog, and opening jars. However, plaintiff was able to perform routine activities at home and at work, although with some restrictions and pain. Both parties' medical experts opined that plaintiff had suffered a permanent injury due to the fracture. Plaintiff's expert opined that she would need further treatment for pain and restrictions.
After the completion of discovery, defendant filed a motion for summary judgment. The trial judge found that defendant had immunity under the TCA. N.J.S.A. 59:2-4. In addition, he found that plaintiff had not shown she had a substantial loss of bodily function, required to recover pain and suffering damages under N.J.S.A. 59:9-2(d). This appeal followed.
In reviewing a grant of summary judgment, we apply the same standard as the trial judge in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in a "light most favorable to the non-moving party." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329 (2010) (citing Brill, supra, 142 N.J. at 540). Because our review of issues of law is de novo, we accord no special deference to the motion judge's legal conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
Plaintiff's negligence claim against defendant implicates the TCA, which provides general immunity for all governmental bodies, except in circumstances where the Legislature has specifically provided for liability. See N.J.S.A. 59:1-2, 2-1; Tice v. Cramer, 133 N.J. 347, 355 (1993). "Under the Act, immunity is the norm, unless liability is provided for by the Act." Davenport v. Borough of Closter, 294 N.J. Super. 635, 637 (App. Div. 1996); see also Bombace v. City of Newark, 125 N.J. 361, 372 (1991) (noting that under the TCA "immunity is the rule and liability the exception"). In determining if a public entity is immune, first we "identify the culpable cause of the accident and . . . ask if that 'identified cause or condition is one that the Legislature intended to immunize.'" Levin v. Cnty. of Salem, 133 N.J. 35, 43 (1993) (quoting Weiss v. N.J. Transit, 128 N.J. 376, 380 (1992)).
A critical issue here is whether the standard set forth in N.J.S.A. 59:2-2 or N.J.S.A. 59:4-2 covers the event resulting in the injury in this case. Plaintiff contends that the ordinary negligence standard of N.J.S.A. 59:2-2 applies, rather than the more stringent "palpably unreasonable" standard in N.J.S.A. 59:4-2 when the issue concerns the physical condition of public property. She argues that the negligent act of the employees of the ice rink in allowing the elf to distribute candy in violation of the rink's rules directly led to the situation that caused her injury. On the other hand, defendant maintains that the appropriate standard is whether the public employees who allegedly allowed the elf to distribute candy created a dangerous condition of public property, requiring the application of N.J.S.A. 59:4-2. Defendant argues that even under plaintiff's proofs, she was not injured by the direct act of a public employee but by a condition allegedly created by the employee, the presence of the elf with candy, which then caused the children to react.
"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." Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 457 (2009). In contrast, N.J.S.A. 59:4-2 permits liability for an injury caused by a dangerous condition of a public entity's property only if: the condition existed when the injury occurred; either an employee of the public entity negligently or wrongfully created the dangerous condition or the public entity had actual or constructive notice of the condition; and the action the entity took to protect against the condition, or its failure to act, was palpably unreasonable. Polzo v. Cnty. of Essex (Polzo II), 209 N.J. 51, 65 (2012). A dangerous condition is defined ...