JUSTIN LOUIS RODRIGUEZ v. LIVINGSTON TOWNSHIP BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JUSTIN LOUIS RODRIGUEZ and

BARBARA EVA RODRIGUEZ,

Plaintiffs-Appellants/

Cross-Respondents,

v.

LIVINGSTON TOWNSHIP BOARD OF

EDUCATION and JUNE VAN DRIEL,

Defendants-Respondents/

Cross-Appellants,

and

TOWNSHIP OF LIVINGSTON,

Defendant-Respondent.

_______________________________________

July 30, 2014

Argued May 27, 2014 Decided

Before Judges Parrillo, Guadagno, and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10301-10.

Michael S. Goldenberg argued the cause for appellants/cross-respondents (Braff, Harris & Sukoneck, attorneys; Brian C. Harris, of counsel; Mr. Goldenberg, on the briefs).

Cherylee O. Melcher argued the cause for respondents/cross-appellants (Hill Wallack LLP, attorneys; Ms. Melcher, on the briefs).

Ian C. Doris argued the cause for respondent (Keenan & Doris, LLC, attorneys; Thomas A. Keenan, of counsel; Mr. Doris, on the brief).

PER CURIAM

Plaintiff, Justin Rodriguez1, has brought this action against the Livingston Township Board of Education (Board), June Van Driel, and the Township of Livingston (Township) for injuries he sustained when he pushed his hand through a wired glass door panel at the Livingston Alternative School (Alternative School). The motion judge granted defendants' motion for summary judgment and dismissed the complaint with prejudice, ruling that plaintiff did not meet the requirements of the New Jersey Tort Claims Act (Tort Claims Act), N.J.S.A. 59:1-1 to 59:12-3. Plaintiff now appeals that decision. The Board filed a cross-appeal of an earlier decision by a different motion judge denying the Board's motion to dismiss the complaint with prejudice due to failure to file a timely written notice of claim pursuant to N.J.S.A. 59:8-4. We affirm the decision granting summary judgment to the defendants, therefore, the cross-appeal is rendered moot.

I. On October 16, 2008, plaintiff, a sixteen-year old high school junior, attended the Alternative School. The school, operated by the Board, was for students who were unable to succeed academically at Livingston High School, and sought to get them back on track to graduate.

The Alternative School, housed in the Monmouth Court Community Center (Center), was built in 1951 to serve as an elementary school, and is owned and maintained by the Township. Since 1991, the Township has leased a portion of the Center to the Board for the Alternative School. Under the lease agreement, the Board used two classrooms, the gymnasium, and common hallways. The Board paid the Township a percentage of the operating and maintenance cost incurred in connection with its use of the Center. The Township used other areas of the Center for local community programs. The lease agreement provided that the Board was not responsible for maintenance, repairs, additions and could not make alterations, or changes to the Center without first obtaining the Township's written permission.

Plaintiff while playing basketball in the gymnasium during physical education class supervised by Board teacher June Van Driel, was struck by an errant basketball. He was upset and "stormed out" the gymnasium. In order to open the unlocked closed double doors, plaintiff used the palm of his right hand to push on the far right wired glass panel of the left door "with a little force," penetrating the wired glass with his right hand. The wired glass shattered injuring his right hand and arm, causing significant injury to his tendons, arteries, and nerves.

The doors were a part of the original construction of the building. They were never repaired or replaced prior to Justin's accident. Each door was made of wood with nine wired glass panels (each measuring seven inches by eleven inches), separated by wood frames that comprised the top of the door. On the inside of each door was a metal push plate on the wood part of the door, indicating where one should push to open the door. There is also a kick plate on the bottom of the door.

Plaintiff walked through the doors many times prior to the accident. According to plaintiff, he pushed on the wood part of the door, not the glass panels, to open the door because it was "common sense" to push on the wood part, and not the wired glass.

On October 26, 2008, plantiff's attorney, Brian Harris, mailed a notice of claim to the Township at its official address. He also sent a notice of claim addressed to Van Driel, care of the Board, but to the Township's address, not to the Board's official address. While it is clear that the Township received its notice, it is unclear whether the Board received its notice that was mailed to the Township.

Nonetheless, on October 28, 2008, a Board Assistant Principal, Daniel S. Finkel, received a letter from Harris advising that he represented Justin regarding the injuries sustained on October 16, 2008 at the Alternative School, and requested that the school preserve evidence, and allow inspection of the door's "glass panel." That same day, Harris spoke to Board attorney Paul Barger. Harris contended that they discussed Justin's claim against the Board. Two days later, Barger wrote a letter to Harris concerning Justin's injury claim and his educational program.

On December 7, 2010, plaintiff filed the within complaint against the Board and Van Driel. Three months later, the Board filed a motion to dismiss the complaint with prejudice alleging that a timely written notice of claim was not filed pursuant to N.J.S.A. 59:8-4. On April 14, 2011, the motion judge denied the motion, noting that there was minimum substantial compliance with the Tort Claims Act through written and oral exchanges between Harris and Barger, as well as Harris' letter to Finkel. On June 30, 2011, we denied the Board's request for leave to appeal the motion judge's decision.

On August 18, 2011, an amended complaint was filed to name the Township as a defendant. Thereafter, following depositions, a stipulation of dismissal with prejudice was filed dismissing all claims and cross claims against Van Driel.

Subsequent to the completion of discovery, except for the depositions of experts, the Board and Township filed motions for summary judgment. Both defendants contended that plaintiffs' complaint should be dismissed because of design immunity, no dangerous condition existed, and plaintiffs could not demonstrate defendants were negligent. The Board also argued that as a lessee of a portion of the Center, it had no control over the premises to make repairs or changes, and therefore could not be held liable for any alleged injury claims due to a dangerous condition.

The motion judge granted summary judgment, finding that no dangerous condition existed under the Tort Claims Act. The judge also determined that the Board could not be liable because "it did not own, control, maintain the Monmouth Court Community Center, and that the Township owns and controls the property."

This appeal followed. In turn, the Board filed a cross-appeal of the order denying the Board's motion to dismiss the complaint with prejudice due to failure to file a timely written notice of claim.

II.

Our review of a trial court decision on a motion for summary judgment is de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.162, 167, (App. Div.), certif. denied, 154 N.J.608 (1998). Summary judgment is granted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R.4:46-2(c). In making this evaluation, we look at the competent evidence "in the light most favorable to the non-moving party" and determine whether it is sufficient to meet this standard. Brill v. Guardian Life Ins. Co. of Am., 142 N.J.520, 523, (1995).

Here, plaintiff contends that he was injured as a result of a dangerous condition on public property. As public entities, defendants' liability for damages in tort actions is governed by the Tort Claims Act, which was enacted following the Supreme Court's abrogation of the doctrine of sovereign immunity in Willis v. Dept of Conservation & Economic Development, 55 N.J.534 (1970). Under the Tort Claims Act, "the general rule [is] that public entities are immune from tort liability unless there is a specific statutory provision imposing liability." Kahrar v. Borough of Wallington, 171 N.J.3, 10 (2002). In order to establish liability under the Tort Claims Act, for conditions upon public entity property, plaintiff must demonstrate the following criteria:

(1) that the property was in a dangerous condition at the time of the injury,

 
(2) that the injury was proximately caused by the dangerous condition,

 
(3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred,

 
(4) and that either:

(a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the

dangerouscondition, or

 
(b) a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition, and

 
(5) nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.
 
[(N.J.S.A.59:4-2).]

The Tort Claims Act 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). A motion judge is required to make a "preliminary determination as to whether the alleged condition is in fact a dangerous one within the meaning of the statute. Otherwise the legislatively-decreed restrictive approach to liability would be illusory." Polyard v. Terry, 160 N.J. Super.497, 508 (App. Div. 1978)aff d o.b., 79 N.J.547 (1979). When considering whether a dangerous condition exists, "a public landowner . . . is not obliged to anticipate and protect against every conceivable dangerous activity by others. Rather, the State is entitled to assume that its property will be used with due care in a reasonably foreseeable manner." Daniel v. State, Dep't of Transp., 239 N.J. Super.563, 588, (App. Div.), certif. denied, 122 N.J.325, (1990).

To be held liable, a public landowner must have actual or constructive knowledge of the purported dangerous condition. Pursuant to N.J.S.A.59:4-3, a public entity has "actual notice" of a "dangerous condition . . . if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." It has "constructive notice . . . only if the plaintiff establishes 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." Ibid.

A public entity can be immune from liability due to a property s design. A public entity cannot be held liable under the Tort Claims Act "for an injury caused by plan or design of public property. . . where such plan or design has been approved" by a public entity or public authority authorized to give such approval. N.J.S.A. 59:4-6(a).

Plaintiff contends that the motion judge erred by finding there were no questions of facts concerning the existence of the door's dangerous condition due to the wired glass panels, and that it is up to the jury to decide whether a dangerous condition existed. Plaintiff argues the motion judge erred when she found that he used the door without due care. Plaintiff also contends the motion judge erred in finding that the design immunity defense shielded defendants from liability. Lastly, plaintiff argues the Board should not have been dismissed on the basis that it did not have possessory control over the premises. We conclude these arguments are without merit.

The record supports the motion judge's finding that plaintiff's injuries were not caused by a dangerous condition of the property. The wired glass door was not a dangerous condition, if used properly with due care in a foreseeable manner. The door was designed to be opened by pushing the metal plate. It could also be opened by pushing the wood part of door just above the metal plate. Unfortunately, plaintiff did not choose either option.

Plaintiff did not properly open the door by pushing the metal plate or the wood part of the door. In fact, he admitted that it is common sense to open the door in that manner. He acknowledged that he was upset after being hit by the basketball and used a "little force" when he opened the door by pushing the door's wired glass panel. As the motion judge noted, it is not reasonable to push the glass part of the door to exit the gym. Plaintiff's negligence does not render the property dangerous according to the Tort Claims Act. See Sharra v. City of Atlantic City, 199 N.J. Super. 535, 540 (App. Div. 1985)("dangerous condition" as defined in N.J.S.A. 59:4-1(a) refers to the physical condition of the property itself and not to activities on the property). Thus, defendants cannot be found liable under the Tort Claims Act for plaintiff s injuries that were a result of his failure to properly open the door.

Plaintiff's expert, Theodore Moss, opined that wired glass has a history of extreme safety concerns because the wire weakens the glass causing a higher level of injury. He contended that it was reasonably foreseeable that a high school student, especially one such as plaintiff who incurs emotional outbursts, would open the door by pushing on the wired glass panels. He argued the wired glass panel should have been replaced when defendants agreed to use the building as an alternative high school. Moss highlighted that his position is supported in the current building code requirements that prohibit the type of wired glass panel that caused plaintiff's injury. We disagree and conclude these opinions do not thwart summary judgment for defendants.

Moss' opinions failed to properly account for plaintiff's lack of "due care," to open the door. The Tort Claims Act requires that property be used with due care in order to conclude that a dangerous condition exists. N.J.S.A. 59:4-1(a); Polyard, supra, 160 N.J. Super. at 508. It was plaintiff's improper opening of the door that caused his injury, not the door itself. He admitted that he did not open the door properly. There was no evidence that the wired glass panels were inherently defective. Also, there was no evidence of any prior accidents or incidents involving the door's wired glass panels. Consequently, defendants did not have actual or constructive notice that a dangerous condition existed.

The motion judge did not address whether defendants were protected by the design immunity defense because she granted summary judgment on the basis that the wired glass door was not a dangerous condition pursuant to the Tort Claims Act. Since we agree with the conclusion that plaintiff has not established that a dangerous condition existed, we likewise conclude it is unnecessary to address the design immunity defense raised in the summary judgment motion.

For the same reasons, we need not address whether the Board is entitled to summary judgment because the lease agreement provides that the Board did not maintain or control the Center, and could not make changes, repairs, or alterations without first obtaining the Township s approval.

Lastly, the Board's cross-appeal regarding the failure to file a timely written tort claim notice is moot due to our decision to affirm granting summary judgment, thereby dismissing plaintiff's complaint with prejudice.

Affirmed.

1 Barbara Eva Rodriguez, Justin's mother, is also a plaintiff. However, for the purpose of efficiency, we will only refer to Justin as the plaintiff in this decision.