BRIANNA ACKERMAN v. FRANKLIN 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NOT FOR PUBLICATION WITHOUT THE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

BRIANNA ACKERMAN, a minor,

by her guardian ad litem,

Jennifer Stiles,

Plaintiff-Appellant,

v.

FRANKLIN TOWNSHIP BOARD OF,

EDUCATION,

Defendant-Respondent,

and

COUNTY OF HUNTERDON, FRANKLIN

TOWNSHIP, STATE OF NEW JERSEY,

NEW JERSEY SCHOOLS DEVELOPMENT

AUTHORITY,

Defendants.

_______________________________

December 30, 2014

Before Judges Lihotz and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-681-11.

Sherri L. Warfel argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Ms. Warfel, of counsel and on the brief).

Michael V. Madden argued the cause for respondent (Madden & Madden, P.A., attorneys; Mr. Madden, of counsel and on the brief).

PER CURIAM

Plaintiff Brianna Ackerman, a minor, by her guardian ad litem, appeals from the summary judgment dismissal of her negligence action against defendant, the Franklin Township Board of Education and others.1 Plaintiff was injured during recess, while using the middle school playground merry-go-round. Defendant moved for summary judgment, arguing plaintiff's complaint was barred by the immunity provisions of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:4-1 to 12-3. The motion judge considered the summary judgment record and oral argument. He rejected plaintiff's assertions and concluded the merry-go-round was neither a defective nor dangerous condition on defendant's property. Further, in light of the evidence, the judge held defendant's decisions not to limit access to the merry-go-round or to assign a specific number of playground supervisors during recess was not palpably unreasonable, and did not support plaintiff's theory that more supervisors would have prevented her injury. Accordingly, the judge dismissed plaintiff's complaint with prejudice.

On appeal, plaintiff argues the heightened "palpably unreasonable" standard, found in N.J.S.A. 59:4-2, is inapplicable to her claims, which she asserts fall within the enumerated exceptions found within the TCA. Alternatively, she contends the evidence sufficiently shows the merry-go-round constituted a dangerous condition, defendant's conduct was palpably unreasonable, and her claims of liability for negligent supervision should not have been dismissed.

We have considered these arguments in light of the record and applicable law. We affirm the dismissal of plaintiff's claim regarding the condition of defendant's property. However, we reverse the order dismissing her claim for negligent supervision, reinstate that claim and remand the matter to the Law Division.

These facts are found in the summary judgment record. We view them in a light most favorable to plaintiff. Robinson v. Vivirito, 217 N.J.199, 203 (2014).

Plaintiff, then a sixth-grade student at Franklin Township Middle School, along with her classmates, was using the merry-go-round located on the playground during recess, on March 18, 2009. Plaintiff described the events preceding her accident as

I went to get off of the Ferris wheel, merry-go-round, whatever you call it, to tie my sneaker . . . . I told everybody that was on it to not move it because I was on my way [] getting down, and I went to go step back up afterwards, and this one girl on the playground ran over and started pushing it . . . . I went to grab onto the railing and my hand slipped and I fell off.

Plaintiff added another girl "came and pushed [the merry-go-round] and it started spinning and I couldn't get my leg up fast enough and then my hand slipped and I flew off." She landed on her right arm.

A student assisted plaintiff to the nurse's office. The certified school nurse immobilized and iced plaintiff's right arm and called her mother, Jennifer Stiles. The nurse told Stiles,

something to the effect of she doesn t know why [the school is] still allowing the kids to play on [the merry-go-round] because they don't . . . follow the rules or conduct themselves the way they should with the merry-go-round and that it's . . . not a good thing to have.

Plaintiff was taken to a hospital emergency room where she was diagnosed with a displaced fractured humerus that was reset through a closed reduction procedure rather than surgery. Plaintiff was discharged the same day.

The school nurse had knowledge of eight prior instances where students were injured while using the merry-go-round, occurring between September 8, 2006 and October 23, 2007. Some of those prior injuries resulted from students disregarding posted rules for the safe use of the merry-go-round.2 The nurse also related her discussions with the school's superintendent and safety committee after plaintiff's accident, urging them to discontinue student use of the merry-go-round. The nurse stated usually up to six teachers and two aides were assigned to supervise recess on the playground.

Although plaintiff used the merry-go-round "[a]lmost every day," she testified the safety rules were never discussed with her and the rules were not posted or regularly enforced because students were not always supervised directly while using the merry-go-round. Plaintiff maintained only two aides were present at the playground on the day she was injured.

Avoiding reference to a specific provision of the TCA, plaintiff's complaint alleged defendant's premises was unsafe for her use, the merry-go-round was not properly maintained and represented "an unsafe and dangerous condition," "a nuisance," "a hazard" and defendant had notice of and "created a condition that was palpably unreasonable . . . ." Also, she alleged defendant negligently "controlled, supervised, managed, owned, operated, inspected, safeguarded, repaired, and maintained said area" that caused her "to fall down and seriously injure herself."

Following discovery, defendant moved for summary judgment dismissal of plaintiff's action, maintaining there was no dangerous condition on its property, N.J.S.A. 59:4-2, and its employees were immune from suit for ordinary negligence. Defendant also asserted plaintiff failed to meet the injury threshold set forth in N.J.S.A. 59:9-2(d) by supplying objective medical evidence of a permanent loss of a bodily function.

Plaintiff opposed summary judgment, arguing the prior eight student injuries established the merry-go-round was an inherently dangerous condition of defendant's property per N.J.S.A. 59:4-2. Plaintiff also claimed public employees were not immune from liability for ministerial acts under N.J.S.A. 59:2-3, such as the decision to allow students to continue use of the merry-go-round. Additionally, plaintiff argued the school did not adequately supervise the playground and her injury satisfied the threshold requirements necessary to file a claim under the TCA.

In an April 26, 2013 order, the judge granted summary judgment and dismissed plaintiff's complaint with prejudice. A written memorandum accompanying the order set forth his conclusions, including: plaintiff had not asserted a claim establishing defendant's property was in dangerous condition; defendant's failure to restrict the use of the merry-go-round or increase the level of supervision around the merry-go-round was not palpably unreasonable; and the decision to allow students to use the merry-go-round was discretionary. The judge also denied plaintiff's motion for reconsideration. This appeal ensued.

We review a summary judgment order de novo, applying the same standard that governs the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014); W.J.A. v. D.A., 210 N.J. 229, 237 (2012). Pursuant to Rule 4:46-2(c), we first "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

"The very object of the summary judgment procedure [] is to separate real issues from issues about which there is no serious dispute." Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002). A motion for summary judgment will not be precluded by bare conclusions lacking factual support, Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving statements, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013), or disputed facts "of an insubstantial nature." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:46-2 (2015). "[W]hen the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540 (citation and internal quotation marks omitted). If no genuinely disputed fact exists, we must "then decide whether the trial court's ruling on the law was correct," W.J.A., supra, 210 N.J. at 237-38 (citation and internal quotation marks omitted), a review which is not deferential.

New Jersey's common-law doctrine of sovereign immunity has been replaced by the TCA, which governs negligence claims against public entities. See Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 404 (1988) ("In 1972, the Legislature enacted the [TCA] in response to mounting judicial disfavor with the doctrine of sovereign immunity."). "'[T]he public policy of this State is that public entities shall be liable for their negligence only as set forth in the [TCA].'" Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.) (quoting Pico v. State, 116 N.J. 55, 59 (1989)), certif. denied, 196 N.J. 461 (2008). The Legislature provided broad immunity protection for public entities [within the TCA] because 'the area within which the government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done.'" Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (quoting N.J.S.A. 59:1-2). Accordingly, "'immunity from tort liability is the general rule and liability is the exception.'" Ogborne, supra, 197 N.J. at 457 (quoting Coyne v. State, Dep't of Transp., 182 N.J. 481, 488 (2005)).

"When both liability and immunity exist, immunity prevails." Dickson, supra, 400 N.J. Super. at 195 (citing N.J.S.A. 59:2-1). In examining whether a governmental entity is liable "courts should employ an analysis that first asks 'whether an immunity applies and if not, should liability attach.'" Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 128 (1993) (emphasis removed) (quoting Attorney General's Task Force Report on Sovereign Immunity, comment to N.J.S.A. 59:2-1 (1972)). With these principles in mind we examine plaintiff's allegations, as set forth in her complaint.

Plaintiff first asserts defendant's property was in a known dangerous condition, causing her injury. N.J.S.A. 59:4-2. This provision addresses a public entity's liability when injury occurs from an existing dangerous condition of public property. Ibid. The statute states

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, 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 dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section [N.J.S.A.] 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

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.

[Ibid.]

The Legislature did not intend to impose liability for a condition merely because danger may exist. See Levin v. Cnty. of Salem, 133 N.J. 35, 49 (1993). Rather, "[d]angerous condition" is a defined term and "means 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. Therefore, "[t]he dangerous condition, which is the predicate for liability of a public entity under N.J.S.A. 59:4-2, must be a dangerous condition inherent in property owned or controlled by the public entity." Dickson, supra, 400 N.J. Super. at 196 (alterations omitted) (citation and internal quotation marks omitted). A dangerous condition must be a "'physical condition of the property itself'"; it does not refer "'to activities on the property.'" Levin, supra, 133 N.J. at 44 (quoting Sharra v. City of Atlantic City, 199 N.J. Super. 535, 540 (App. Div. 1985)).

There is little doubt plaintiff's injury did not result because defendant's property "was in dangerous condition at the time of [her] injury." "Consistent with the Legislature's purpose of providing broad immunity under the Act, . . . 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." Ogborne, supra, 197 N.J. at 459-60. Here, we conclude the motion judge correctly found plaintiff's injury resulted from activities on the property. More specifically, plaintiff was injured during her use of equipment situated on defendant's property, i.e., the merry-go-round, not from a condition of the property itself.

The judge also found no evidence was offered to support the allegation the merry-go-round "was defective and likely to cause substantial, foreseeable injury" or proximately caused plaintiff's injury. We too reject plaintiff's argument, which relies on Smith v. Fireworks by Girone, Inc., 180 N.J.199 (2004). Smith, involved a child injured by a firework found in a park, not removed after a municipal fireworks display. Id.at 204. Although there was no defect in the realty, the Court ultimately imposed liability because a firework is an inherently dangerous object and that dangerous object was located on public property. Id.at 217.

The distinction between the facts in Smithand those presented here is obvious. A merry-go-round is not inherently dangerous. Accordingly, for the reasons set forth in the written memorandum accompanying the summary judgment order, we affirm the trial judge's conclusion dismissing plaintiff's allegations of liability under N.J.S.A. 59:4-2, because defendant's property, in general, and the merry-go-round specifically, failed to meet the TCA definition of dangerous condition for which liability could be imposed. R. 2:11-3(e)(1)(A).

Next, plaintiff maintains the judge erroneously limited examination of her claims using the standard governing public property set forth in N.J.S.A. 59:4-2, thereby failing to consider whether defendant was vicariously liable under N.J.S.A. 59:2-2, which provides

a. A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.

b. A public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.

This provision considers a government employer's liability for injuries proximately caused by an "employee's acts or omissions in the scope of his or her employment." Lavezzi v. State, 219 N.J. 163, 172 (2014). "The TCA was enacted 'to supersede the patchwork of statutory provisions providing for the defense and indemnification of [government] employees.'" Ibid. (quoting Chasin v. Montclair State Univ., 159 N.J. 418, 425 (1999)).

In Ogborne, the Court examined the interplay between liability provisions within the TCA and considered "whether the ordinary negligence standard of N.J.S.A. 59:2-2 must give way to the more stringent 'palpably unreasonable' standard of N.J.S.A. 59:4-2 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. The Court noted because the TCA grants a public entity immunity from liability for a dangerous condition if the negligent conduct is determined not palpably unreasonable,

when 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.

[Ogborne, supra, 197 N.J. at 460.]

In this matter, as we have determined, the issue of negligence does not concern a dangerous condition of defendant's property. Rather, plaintiff's challenges assert negligent supervision; that is, whether a teacher should have been designated to supervise the merry-go-round use or whether the teachers charged with supervising recess negligently did so, rendering defendant liable subject to the general negligence provisions of N.J.S.A. 59:2-2.

There is no question defendant has a duty to supervise the students at recess. The Court has recognized "parents entrust their children to the care of schools, and educators have no greater obligation . . . than to protect the children in their charge from foreseeable dangers, whether those dangers arise from the careless acts or intentional transgressions of others." Jerkins v. Anderson, 191 N.J. 285, 296 (2007) (brackets omitted) (citations and internal quotation marks omitted).

This duty may be violated, not only in the commission of acts but also in a neglect or failure to act. The standard of care imposed upon school personnel in carrying out this duty to supervise is that degree of care which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances.

[Caltavuturo v. Passaic, 124 N.J. Super. 361, 366 (App. Div.) (citations omitted), certif. denied, 63 N.J. 583 (1973).]

"Several cases have addressed public entity liability for injuries resulting from [the] negligenceof school officials" and noted the scope of such a duty is "'defined by a standard of reasonableness.'" Vivirito, supra, 217 N.J. at 210-11 (quoting Jerkins, supra, 191 N.J. at 301). Thus, school personnel have a duty "to exercise reasonable supervisory care for the safety of students entrusted to them" and may be held accountable "for injuries that occur[] due to a failure to discharge that duty." Ibid. Such an analysis requires review of the foreseeability of the harm, "and whether recognition of a duty of care to plaintiff under these circumstances comports with considerations of fairness and public policy." Id. at 212.

"[F]oreseeability refers to 'the knowledge of the risk of injury to be apprehended. The risk reasonably to be perceived defines the duty to be obeyed'" and "'is taken into account in determining the existence of the duty to exercise care.'" Id. at 208-09 (quoting Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 503 (1997)).

Specific to this matter, the school recognized its duty to supervise the student-play during recess. The issue of whether that duty was breached is a question for the factfinder. See e.g., Jackson v. Hankinson, 51 N.J. 230, 235-36 (1968) (recognizing the duty of school officials to provide reasonably safe transportation when they decide to provide that service).

Also impacting defendant's possible liability is consideration of the immunity provisions of N.J.S.A. 59:2-3(a), which circumscribe the scope of liability for a public entity's discretionary duties. Specifically, "[a] public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity . . . ." N.J.S.A. 59:2-3(a).

A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.

[N.J.S.A. 59:2-3(d).]

"Thus, the TCA creates two standards for immunity based on whether the public entity's action in allocating resources was ministerial or discretionary." Henebema v. S. Jersey Transp. Auth., 219 N.J. 481, 490 (2014).

A public entity's liability for the discretionary conduct of an employee must be shown to be "palpably unreasonable." Ibid. The term "palpably unreasonable" is not defined in the TCA. However, the Court has underscored it as more than mere negligence, rather,

the term implies 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.

[Ogborne, supra, 197 N.J. at 459 (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)).]

"[T]he exemption contemplated under N.J.S.A. 59:2-3(a) concerns the 'exercise of judgment or discretion' . . . made at the planning, rather than the operational level of decision making." Costa v. Josey, 83 N.J. 49, 59 (1980). Immunity for such decisions, "is contingent upon proof that discretion was actually exercised at that level by an official who, faced with alternative approaches, weighed the competing policy considerations and made a conscious choice." Ibid.

However, liability for the omission of a ministerial function is governed by the ordinary negligence standard. Henebema, supra, 219 N.J. at 490. A ministerial act is one which is performed "under a given state of facts in a prescribed manner . . . without regard to or the exercise of . . . judgment upon the propriety of the act being done." Kemp by Wright v. State, 147 N.J. 294, 308 (1997) (citation and internal quotation marks omitted).

A liberal reading of plaintiff's complaint leads us to conclude she alleged a claim requiring resolution of factual disputes regarding whether defendant's allocation of supervisory personnel was "palpably unreasonable" and whether the school employees assigned to perform the task breached their supervisory duties on the date of her fall. Plaintiff's proofs included her testimony that no adult was supervising the merry-go-round, despite section four of the safety rules suggesting the need for adult supervision. Further, she testified only two aides and no teachers were supervising at least fifty students at recess, which is juxtaposed against the school nurse's testimony that generally up to six teachers and two aides are assigned to perform playground supervision. This record contains no evidence regarding the basis for the resource allocation, which may bear on a jury's consideration of whether the decision to assign limited personnel was palpably unreasonable. See Garrison v. Twp. of Middleton, 154 N.J. 282, 311 (1998) (stating the determination of whether conduct is palpably unreasonable is generally reserved for the jury).

The question of defendant's reasonableness in providing the level of supervision, together with whether plaintiff's conduct contributed to her injury must be measured under the totality of the circumstances, as found by the trier of fact. Jerkins, supra, 191 N.J.at 306. These issues are disputed as defendant asserts the merry-go-round safety rules along with the allocated level of supervision demonstrate no breach of duty. On the other hand, plaintiff testified the rules were neither posted nor reviewed with students and only two aides were charged with supervision of all student playground activities.

The totality of the evidence in this record generates genuine jury questions as to a breach of the duty owed by defendant to plaintiff. Accordingly, the trial court's summary judgment dismissal of plaintiff's negligent supervision claim was error and must be reversed. We vacate that portion of the order dismissing the negligent supervision claim and remand to the trial court for further proceedings.

Affirmed in part, reversed and remanded in part.

1 Defendant the State of New Jersey secured an order of dismissal with prejudice on March 2, 2012. A separate order dismissed without prejudice defendants Franklin Township and the New Jersey Schools Development Authority.

2 These are the merry-go-round safety rules

1. Students wishing to ride the carousel should line up in a straight line at the edge of the playground area where the grass and wood chips meet. The front of the line is where the staff member in charge is standing.

2. The staff member is in charge of allowing the students to get on the carousel . . . count them off from the front of the line . . . only one child per pie wedge color.

3. Two or three students from the front of the line will turn the carousel and then get back on the line in their places. The pushers may not jump onto the carousel.

4. When the carousel stops the students get off . . . . The students on the line must wait for permission to get on. The staff member will count off the correct number . . . remember the pushers are at the front of the line; this is now their turn to ride.

5. If someone races out of turn, etc., they go to the end of the line.

6. Students who have gotten off the carousel may get on the end of the line for another turn, should they wish to do so.

No one should jump on or off the moving carousel. Keep hands and feet on the carousel at all time[s].