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The New Jersey Tort Claims Act remains a viable defense this summer for public entities, even for cases involving uneven boardwalks at the New Jersey shore.
Under the New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:1-1 – 14:4, 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, the action the entity took to protect against the condition or the failure to take such action was palpably unreasonable, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his [or her] employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under [N.J.S.A.] 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
NJ TCA 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. 59:4-1(a).
This month, in Linda Clark v. City of Wildwood, the Appellate Division affirmed the trial court’s summary judgment ruling in favor of the defendant, City of Wildwood, on the basis that plaintiff failed to satisfy the requirements of the NJ TCA. In considering the appeal the Appellate Division noted “it is well-settled that ‘the guiding principle of the TCA is that immunity from tort liability is the general rule and liability is the exception.’” LINDA CLARK, Plaintiff-Appellant, v. CITY OF WILDWOOD, Defendant-Respondent, No. A-0110-21, 2022 WL 3205805, at *4 (N.J. Super. Ct. App. Div. Aug. 9, 2022) (internal citations omitted).
Plaintiff, Linda Clark, sued the City of Wildwood following a trip and fall she experienced while walking the boardwalk. After depositions and expert testimony, it was undisputed that the boardwalk contained “minor dips and bumps” and had a slight height differential in some areas between 9/16 and 5/8 inches, but the Court ruled “the uneven boards where plaintiff tripped were in fact minor, trivial, or insignificant and not a dangerous condition.” Essentially, although there was arguably a “defect” it was not of the type considered “substantial” under the TCA. Additionally, the Court held that City of Wildwood’s conduct was not “palpably unreasonable” because it was unrefuted the boardwalk is patrolled five days a week by certain employees who are tasked with looking for defects, while other employees monitor the condition of the boardwalk and report defects to the boardwalk inspector so they can be repaired. Also, nothing in the record suggested defendant should have known to check the area where plaintiff fell, as plaintiff presented no proof of similar accidents in the vicinity.
The attorneys at FMG are experienced in defending premises liability actions, including on behalf of public entities under the New Jersey Tort Claims Statute, and we are here to help you.