RUTH DEANE v. WINDING RIVER PARK ICE SKATING RINK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5443-10T2

RUTH DEANE,

Plaintiff-Appellant,

v.

WINDING RIVER PARK ICE SKATING

RINK, TOWNSHIP OF TOMS RIVER,1

Defendant-Respondent,

and

OCEAN COUNTY, TOMS RIVER ICE

SKATING COMMITTEE,

Defendants.

_______________________________________________

November 14, 2012

Argued May 22, 2012 - Decided

Before Judges Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-347-10.

Paul K. Caliendo argued the cause for appellant (Gill & Chamas, L.L.C., attorneys; Mr. Caliendo, on the brief).

Mary M. McCudden argued the cause for respondent (Gilmore & Monahan, P.A., attorneys; Thomas E. Monahan, of counsel; Ms. McCudden, on the brief).

PER CURIAM

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 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).

These two liability provisions may intersect "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." Ogborne, supra, 197 N.J. at 459. In Ogborne, the plaintiff, trapped inside a park when a public employee locked the park gates hours earlier than scheduled, broke her leg as she attempted to escape by scaling a wall. Id. at 453-54. In addressing which liability provision applied, the Court held:

[W]hen 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 in N.J.S.A. 59:4-2 operates to trump the ordinary negligence standard, which otherwise applies when the act of a public employee causes an injury.

[Id. at 460.]

Moreover, the Court further noted, "[c]onsistent with the Legislature's purpose of providing broad immunity under the Act, we believe 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." Id. at 459-60. As it was the public employee's act of locking the gate prematurely that the plaintiff in Ogborne claimed created the dangerous condition, whether the employee created the dangerous condition was "reasonably debatable," directly implicating the two liability provisions of the TCA. Id. at 461. Consequently, the Court held that the higher standard applied. Ibid.; see also Pico v. State, 116 N.J. 55, 63 (1989) (the more exacting standards of N.J.S.A. 59:4-2 apply when the negligent activities of a public employee involve the creation of a dangerous condition).

Our Supreme Court has defined the term palpably unreasonable as implying

behavior that is patently unacceptable under any given circumstance. . . . [F]or 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. Moreover, the burden of proof with regard to the palpable unreasonableness of the State's action or inaction is on the plaintiff in a case of this type.

[Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (internal quotations and citations omitted).]

Generally, the question of whether actions are palpably unreasonable is for the jury. See Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 130 (2001). Nonetheless, as with any other fact question, summary judgment should be awarded when the court determines that the facts undeniably do not meet the high standard imposed by the Legislature. See Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993).

We now apply these principles to the instant case. Plaintiff contends that the public entity created the situation that caused her injury by not enforcing the rule that no food was allowed on the ice and thus N.J.S.A. 59:2-2 should apply. As this contention makes it reasonably debatable that the public entity created a dangerous condition on public property, we conclude that the higher standard in N.J.S.A. 59:4-2 is the proper legal standard in this case. Ogborne, supra, 197 N.J. at 459.

In applying the dangerous condition standard and giving all reasonable inferences to plaintiff, the trial judge found that plaintiff had not proven the elements necessary to meet this standard. The judge expressed doubt whether the elf giving children candy created a dangerous condition that caused plaintiff's injuries, but noted that no evidence established any dangerous condition attributable to the township. The judge found it highly significant that no evidence demonstrated that the Township or its employees knew in advance that candy would be given out on the ice; or showed that the employees were alerted at the time the distribution began and failed to stop it in the few seconds before plaintiff fell. The trial judge ruled that no dangerous condition was created by a public employee or entity, and if a dangerous condition existed, that the Township lacked actual or constructive notice of that condition, as required for liability to attach under N.J.S.A. 59:4-2.

Having thoroughly reviewed the record, we conclude that the trial judge appropriately granted summary judgment in favor of the Township based upon N.J.S.A. 59:4-2. A dangerous condition must create a "substantial risk of injury." N.J.S.A. 59:4-1. A substantial risk is one that is not minor, trivial, or insignificant. Polyard v. Terry, 160 N.J. Super. 497, 509 (App. Div. 1978), aff d o.b., 79 N.J. 547 (1979). Whether a dangerous condition exists is a question of fact. Vincitore, supra, 169 N.J. at 123-24. Giving plaintiff all reasonable inferences, we think that a fact issue exists regarding whether the elf distributing candy and causing children to congregate suddenly and without warning to the other skaters could have created a dangerous condition that posed a substantial risk of harm.

However, for liability to attach under N.J.S.A. 59:4-2, plaintiff must establish that the public entity either "had actual knowledge of the existence of the condition and knew or should have known of its dangerous character," N.J.S.A. 59:4-3(a), or alternatively, that "the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3(b). Plaintiff has provided no evidence that the Township or its employees had actual knowledge that the Santa Skate involved the distribution of candy or that the elf was distributing candy before plaintiff's fall. The rink manager denied any knowledge of candy ever being distributed during a Santa Skate event. He noted that large signs prohibiting food on the ice were posted around the rink area. Hence, the record does not establish actual knowledge of the alleged dangerous condition.

Moreover, "the mere existence of an alleged dangerous condition is not constructive knowledge of it." Polzo v. Cnty. of Essex (Polzo I), 196 N.J. 569, 581 (2008) (citations omitted). Rather, a plaintiff must establish "the fundamental requirement of constructive notice under N.J.S.A. 59:4-3(b), namely that the condition could have existed for such a period of time that the public entity should have discovered it." Id. at 586 (quoting Carroll v. N.J. Transit, 366 N.J. Super. 380, 388 (App. Div. 2004). Plaintiff skated for over one-half hour while Santa and the elves were on the ice and not distributing candy. The first time she saw an elf giving out candy was one or two seconds before her accident. The fact that the children hurried over to the elf suggests that this was their first opportunity to obtain candy. We are satisfied that, when a dangerous condition is created within seconds of the accident, no reasonable jury could find that the Township had actual or constructive notice of the condition.

Accordingly, we conclude that even if a dangerous condition existed, nothing in the record establishes that the Township created it or had notice of its existence. As a result, we need not reach the issue of whether the Township's response to the dangerous condition was palpably unreasonable. Polzo I, supra, 196 N.J. at 585 (noting that "if one or more of the elements is not satisfied, a plaintiff's claim against a public entity alleging that such entity is liable due to the condition of public property must fail"). Thus, as plaintiff's proofs have failed to demonstrate the Township's liability under N.J.S.A. 59:4-2, the presumption of immunity continues. See Davenport, supra, 294 N.J. Super. at 639.

For completion, we will address plaintiff's argument that the trial judge erred in finding that she did not suffer an injury compensable under the TCA. N.J.S.A. 59:9-2(d) provides that a person seeking damages for pain and suffering due to the negligence of a public entity or public employee must expend at least $3600 for medical treatment and must suffer "permanent loss of bodily function." In Brooks v. Odom, 150 N.J. 395, 406 (1997), the Court held that the Legislature intended to prevent recovery for injuries that caused "a mere limitation of bodily function . . . ." The Court explained that "the Legislature intended that a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial." Ibid. The plaintiff in Brooks did not satisfy this standard because she submitted evidence of soft tissue injuries to her neck and back that caused limitation of motion but did not impair her ability to work or maintain her home. Ibid.

In Gilhooley v. County of Union, 164 N.J. 533 (2000), the Court reiterated the two-prong standard articulated in Brooks. As the Court noted, "in order to vault the pain and suffering threshold under the [TCA], a plaintiff must satisfy a two-pronged standard by proving (1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Id. at 540-41. The Court found that Gilhooley met the threshold because, for her leg to function again, the injury required reconstruction of the knee with devices implanted into it. The Court has continued to articulate that the nature and degree of impairment must be substantial to satisfy the TCA threshold. See Kahrar v. Borough of Wallington, 171 N.J. 3, 15-16 (2002) (threshold met by massive tear in rotator cuff requiring surgery and reattachment of tendon, resulting in substantially restricted mobility); Ponte v. Overeem, 171 N.J. 46, 53-54 (2002) (threshold not met where no restriction in ambulation or gait, and knee injury did not prevent plaintiff from working or performing activities); Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 332-33 (2002)(threshold met where plaintiff had severe neck and back pain with constant tingling and numbness in leg and foot, resulting in inability to engage in sports, complete household chores or perform second job).

In this case, the trial judge found that the injury suffered by plaintiff, while permanent, was not significant. We agree that this case is similar to the facts in Brooks, where the plaintiff had pain and some limitation in her range of motion but was still fully functioning at home and at work. Id. at 333. As the Court held in Knowles, "lingering pain, resulting in a lessened ability to perform certain tasks because of pain" does not overcome the threshold contained in N.J.S.A. 59:9-2(d). Knowles, supra, 176 N.J. at 332. Accordingly, we conclude that, as plaintiff did not provide evidence that her injury was both permanent and significant, she did not meet the threshold for pain and suffering damages under the TCA.

Affirmed.

1 Plaintiff erroneously named Winding River Park Ice Skating Rink, the Township-owned ice skating rink, as a separate defendant.