ELISSA ROSE MAYBLOOM v. JACKSON TOWNSHIP BOARD OF EDUCATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5906-09T3

ELISSA ROSE MAYBLOOM,

Plaintiff-Appellant,

v.

JACKSON TOWNSHIP BOARD OF

EDUCATION and JACKSON TOWNSHIP

MEMORIAL HIGH SCHOOL,

Defendants-Respondents.

__________________________________________________

March 3, 2011

 

Argued January 19, 2011 - Decided

 

Before Judges Carchman and Messano.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0067-09.

 

Russell Macnow argued the cause for appellant (Sukel, Macnow & Associates, attorneys; Mr. Macnow, on the brief).

 

JamesJ. Law argued the cause for respondents (Kennedy, Campbell, Lipski & Dochney, attorneys; Mr. Law, on the brief).

 

PER CURIAM

Plaintiff Elissa Rose Maybloom appeals from the grant of summary judgment to defendants Jackson Township Board of Education and Jackson Township Memorial High School (collectively, defendants). Plaintiff raises the following points on appeal:

POINT I: PRINCIPLES OF ORDINARY NEGLIGENCE SHOULD APPLY WHEN A SCHOOL'S NEGLIGENT SUPERVISION OF A CHILD IS A CAUSE OF THAT CHILD BECOMING INJURED FROM A DANGEROUS CONDITION OF SCHOOL PROPERTY

 

POINT II: THE MOTION JUDGE ERRONEOUSLY DETERMINED AS A MATTER OF LAW THAT RESPONDENTS DID NOT MAINTAIN A DANGEROUS CONDITION OF PROPERTY AND DID NOT ACT IN A PALPABLY UNREASONABLE MANNER PURSUANT TO N.J.S.A. 59:4-2

 

We have considered these arguments in light of the motion record and applicable legal standards. We affirm.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Ibid.

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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).]

 

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. We owe no deference to the motion judge's conclusions on issues of law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

I.

We glean the following facts from the motion record.

On September 27, 2004, plaintiff, a sophomore at Jackson Memorial High School, was in gym class. She was playing co-ed flag football on an outdoor grass field known as field #4, normally used by the girls' field hockey team. Plaintiff had never played football before that day and had never been on field #4. Prior to the game, plaintiff's teacher, Scott Goodale, had the class participate in drills, which plaintiff described in her deposition as demonstrating "how to catch a football, like a way not to hurt yourself, things like that." Plaintiff further testified that no one in the class complained to Goodale about the condition of the field.

Although the field hockey team had conducted practice on field #4, plaintiff testified that no games had yet been played on the field in the new school year. On the first play of the game, plaintiff ran to catch a pass when "[her] foot got caught in one of the divots, and [her] knee twisted and [she] fell." Plaintiff limped back to the locker room and went to the nurses' station where her knee was treated with ice. Later that day, plaintiff saw "Dr. Grossman," was diagnosed with tears of her meniscus and underwent multiple surgeries as a result.

Plaintiff accompanied her stepfather to field #4 a few days later to take photographs. She identified them at her deposition and some are part of the appellate record. Plaintiff identified a photo of the particular divot that caused her injury revealing it was approximately two inches deep. Other photos of the field, it is alleged, demonstrate that it was "riddled" with divots, though we cannot independently reach that conclusion.1

Nine athletic fields were adjacent to the high school and gym classes utilized five of these fields for their activities. Jessie M. Hart, who was defendants' "lead groundsman" since 2001, testified at deposition that field #4 was used for the field hockey team, which had practiced on the field four or five times since August. Hart testified that field #4 was "the most level field that we have," and specifically used by the field hockey team for safety reasons because "you don't want the ball to bounce." Field #4 was redone between 2001 and 2003 by an outside contractor who "turned [the field] in, leveled and reseeded" it. Field #4 was "off limits" for a year thereafter to permit "the root system to develop." All the sport fields were cut by Hart on a weekly basis.

Hart acknowledged that field hockey play resulted in worn areas around the "goal mouth," and "ruts" or "divots" caused by the players' sticks. Hart also testified that the fields "were checked daily" and that he would conduct inspections at each location. Hart explained that if he saw a divot, and "the grass was still in place[,] . . . [he] would fold the grass back and a mix of dirt and grass seed would be added, and if the grass was gone, it would just be the mix of dirt and grass seed."

Goodale testified in deposition that in preparation for gym classes, he and other members of the physical education staff "would set the field up every morning . . . [and] check[] the field." They would "make sure there was no objects on it that would affect play" such as "broken bottles[,]" "chairs[,]" or "bleachers in line of play . . . ." Goodale acknowledged, however, that he did not specifically check the field for divots. But, Goodale also testified that field #4 "was the nicest field we'[d] ever seen by far," and that he never noticed any divots on it prior to plaintiff's accident.

Plaintiff retained an expert, Leonard Lucenko, Ph.D., a "[p]hysical [e]ducation [s]afety [c]onsultant," board certified by the American College of Forensic Examiners and a member of the American Society of Safety Engineers. Lucenko opined that defendants deviated "from reasonable and prudent standards of care and practice . . . in the conduct of [plaintiff's class]." He identified eight specific failures, which we quote in their entirety:

1. Failed to adequately monitor the safety of the environment for the conduct of the physical education class.

 

2. Failed to follow the published standard curriculum and teaching flag football skills using the progression from the fundamental, to the game related, to the game condition method of teaching sport skills.

 

3. Failed to exercise due care for the safety and welfare of the students by allowing them to play on the defective and dangerous field hockey field.

 

4. Failed to properly inspect the subject field hockey field before permitting the class to engage in a game of flag football.

 

5. Failed to address the dangerous and defective condition of the divots on the surface of the field by not moving the class to another, less hazardous athletic field.

 

6. Failed to develop and implement effective inspection policies and procedures, which could have detected the defective condition of the field.

 

7. Failed to provide appropriate and proper progressive instruction to the students prior to permitting them to participate in a flag football game.

 

8. Failed to properly monitor the conduct of the physical education teacher to insure that he fulfilled his responsibility to provide a safe environment for the conduct of the class.

 

[Emphasis added.]

 

We have emphasized certain of Lucenko's conclusions that deal with the condition of field #4, as contrasted with the others that criticize the method of instruction and/or supervision of the gym class.

On January 7, 2009, plaintiff filed her complaint. It alleged that during all relevant times, she "was in the care and custody of . . . defendants who acted in loco parentis." It further alleged that "[a]s a result of the . . . negligence of the defendants," she suffered injury. After discovery was completed, defendants moved for summary judgment.

Defendants argued that plaintiff's injury was caused by the alleged dangerous condition of field #4, not by any alleged negligent supervision of plaintiff. Citing Ogborne v. Mercer Cemetery Corp., 197 N.J. 448 (2009), defendants contended that plaintiff failed to demonstrate liability pursuant to N.J.S.A. 59:4-2, which defines a public entity's potential liability for dangerous conditions on its property.

Plaintiff countered by arguing that Ogborne "[wa]s not a school case," and that general negligence principles applied, citing N.J.S.A. 59:2-2 and 59:2-7. Alternatively, plaintiff contended that she had adequately demonstrated a dangerous condition on public property under N.J.S.A. 59:2-4. The motion judge concluded:

There are situations where general standards of negligence are applied even in the context of public employees, but they are specifically set out. I don't see where Title 59 has specifically set out that public entity property in schools should not be judged by the same palpably unreasonable standard that we judge public entity property elsewhere.

 

After citing extensively to Hart's deposition testimony, the judge concluded plaintiff had failed to demonstrate that defendants' conduct was "palpably unreasonable." She entered the order granting summary judgment and this appeal followed.

II.

(a)

The New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3 (TCA), "re-establishes sovereign immunity and provides that 'public entities shall only be liable for their negligence within the limitations of th[e] act . . . .'" Ogborne, supra, 197 N.J. at 457 (quoting N.J.S.A. 59:1-2). "The guiding principle of the [TCA] is that 'immunity from tort liability is the general rule and liability is the exception.'" Coyne v. State, Dep't of Transp., 182 N.J. 481, 488 (2005) (quoting Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998)).

"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 plaintiff's injury." Ogborne, supra, 197 N.J. at 457. That section 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.

 

[N.J.S.A. 59:2-2.]

 

Succinctly stated, "when the public employee is liable for acts within the scope of that employee's employment, so too is the entity." Tice v. Cramer, 133 N.J. 347, 355 (1993).

However, if a plaintiff's injury was the result of a dangerous condition of public property, N.J.S.A. 59:4-2 controls. That section provides:

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 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.

 

[N.J.S.A. 59:4-2.]

 

A "[d]angerous 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).

The Court has recognized that 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 was trapped inside a park when a public employee locked the park gates earlier than scheduled. Id. at 452. The plaintiff broke her leg as she attempted to escape by scaling a brick wall surrounding the property. Ibid. The Court held that:

[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.]

In this case, plaintiff argues that the holding in Ogborne does not apply because her injury occurred while she was being supervised in a school-related activity on school grounds during school hours. In this context, plaintiff argues defendants' "duty is seperable and distinct from any duty imposed by the [TCA]." We discern from oral argument, however, that plaintiff concedes the TCA applies, but contends that the ordinary negligence standard of N.J.S.A. 59:2-2 governs.

The Court has recognized that "parents entrust their children to the care of schools, and '[e]ducators have "[n]o 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) (quoting L.W. v. Toms River Reg'l Schs. Bd. of Educ., 189 N.J. 381, 406 (2007) (in turn quoting Frugis v. Bracigliano, 177 N.J. 250, 268 (2003)). The duty imposed upon school personnel is clearly defined in Model Jury Charge (Civil) 5.74, "Duty of Teachers and School Personnel to Student," (2009); see also Frugis, supra, 177 N.J. at 270 (defining the duty owed by reference to the model jury charge).

However, plaintiff cites no case, except those that pre-date enactment of the TCA, that imposes this duty separately and apart from the provisions of the TCA. It is clear from Frugis, supra, 177 N.J. at 274-79, that the TCA applies to a claim of negligence against school boards.2

Nor does recognition of the general duty of reasonable care and supervision imposed upon school personnel make this case distinguishable from Ogborne. As the Court noted in Ogborne, supra, 197 N.J. at 459-60, "[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." Most importantly, in Ogborne, the public employee's negligent acts -- locking the park gates earlier than scheduled and without determining if anyone was inside -- created the potentially hazardous condition -- plaintiff's need to climb the wall to escape. Id. at 461. As the court noted, that made whether the employee created the dangerous condition "reasonably debatable," directly implicating the two liability provisions of the TCA. Id. at 460-61.

Such is not the case here. Plaintiff was injured by the allegedly hazardous condition of field #4. Those portions of Lucenko's report not highlighted above criticized the preparation for, and supervision of, plaintiff's football game. But none of those alleged failures were a proximate cause of plaintiff's injuries. In other words, plaintiff was not injured because she was improperly trained or supervised in how to receive a football, block an opponent or grab a flag from an opposing player. Reduced to its essence, plaintiff's claim was that she was injured by the poor quality of the playing field. And that is a claim subject to analysis under N.J.S.A. 59:4-2.3

(b)

In that regard, plaintiff argues the motion judge erred by determining "as a matter of law that [defendants] did not maintain a dangerous condition . . . and did not act in a palpably unreasonable manner." We disagree.

[I]n order to impose liability on a public entity pursuant to [N.J.S.A. 59:4-2], a plaintiff must establish the existence of a "dangerous condition," that the condition proximately caused the injury, that it "created a reasonably foreseeable risk of the kind of injury which was incurred," that either the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity's conduct was "palpably unreasonable."

[Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 125 (2001) (quoting N.J.S.A. 59:4-2).]

 

"Th[e]se requirements are accretive; 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." Polzo v. Cnty. of Essex, 196 N.J. 569, 585 (2008).

Although the motion judge did not expressly determine whether field #4 presented a dangerous condition, we assume arguendo that a disputed fact existed on that issue. However, plaintiff did not marshal any proof indicating that defendants knew of that dangerous condition or that it was caused by a public employee. "In the absence of actual notice, a public entity will be liable for a dangerous condition '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.'" Polzo, supra, 196 N.J. at 581 (quoting N.J.S.A. 59:4-3(b)).

In this case, there was no actual notice of the presence of divots on the field, one of which caused plaintiff's accident. Moreover, except that the divot was not detected, there was no proof demonstrating that defendants failed to exercise due care to detect any dangerous condition. Hart's testimony established that he made daily inspections of the field, and Goodale testified that he did not see the divot or any divots when he walked the field that morning. Indeed, Lucenko only opined that Goodale and the maintenance staff "had a responsibility to make certain the . . . field was inspected and reasonably free of hazardous conditions."

But, even if we assume a jury was free to disbelieve that testimony, thus, presenting a disputed fact as to actual or constructive notice of a dangerous condition on field #4, we agree with the motion judge that plaintiff failed, as a matter of law, to demonstrate that defendants' conduct was palpably unreasonable.

Palpably unreasonable conduct "means 'behavior that is patently unacceptable under any circumstance' and . . . it must be 'manifest and obvious that no prudent person would approve of [the public entity's] course of action or inaction.'" Pandya v. State, Dep't of Transp., 375 N.J. Super. 353, 372 (App. Div. 2005) (alteration in original) (quoting Holloway v. State, 125 N.J. 386, 403-04 (1991)). We acknowledge that in most circumstances, "[p]alpable unreasonableness is a question of fact." Vincitore, supra, 169 N.J. at 130.

Nevertheless, "[i]n appropriate cases . . . the question of palpable unreasonableness may be decided by the court as a matter . . . for summary judgment." Harry A. Margolis and Robert Novack, Claims Against Public Entities, comment to N.J.S.A. 59:4-2 at 134 (2009). In Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-51 (App. Div. 2002), for example, we affirmed the grant of summary judgment noting that absent actual or constructive notice, the public entity could not be found to be palpably unreasonable for placing the responsibility of maintenance and repair of sidewalks upon property owners.

In large part, plaintiff's claim in this case is that a jury could find defendants acted in a palpably unreasonable manner despite the uncontroverted testimony by Hart and Goodale regarding the inspection they performed the very day of her accident. Plaintiff also argues that defendants maintained "no polices or procedures . . . for how and when the fields should be inspected[,]" further noting a lack of any "inspection report" or "records which . . . reflected if, when and how . . . Hart inspected [the] field."

In Carroll v. N.J. Transit, 366 N.J. Super. 380, 384 (App. Div. 2004), the plaintiff was injured when he slipped on dog feces while descending the steps of the defendant's train station. Initially, we rejected the plaintiff's argument "that [the] defendant's mode of operation -- namely, inspecting only once a day and sweeping the platform prior to the steps -- was 'patently unreasonable' and likely created the dangerous condition, therefore relieving him of his burden to otherwise prove actual or constructive notice on the part of defendant." Id. at 389. Specifically addressing the plaintiff's burden of proof regarding palpably unreasonable conduct, we noted:

The proposition that it was palpably unreasonable for the worker to sweep the platform before the steps is completely unsupported by any evidence in this record. So too is the similar labeling of defendant's inspection routine. Plaintiff presented no proofs on the standard of care for inspections of subway or rail stations. And, as previously noted, the record is devoid of any evidence of a history of similar incidents or complaints, or a demonstrable pattern of conduct or practice to suggest the need for a more frequent inspection schedule. As such, plaintiff's claims of palpable unreasonableness presented no jury question.

 

[Id. at 390-91.]

 

In this case, there was no proof of prior reports regarding the allegedly dangerous condition of field #4. Plaintiff's expert concluded that defendants "fail[ed] to have in place adequate and appropriate procedures to detect defective conditions" on field #4. However, he never stated why defendants' procedures were inadequate. Indeed, he noted that the duty imposed was only "to make certain the . . . field was inspected and reasonably free of hazardous conditions." Defendants did so. The fact that they did not detect the divot that caused plaintiff's accident does not, in itself, permit a reasonable fact finder to adjudge their conduct "palpably unreasonable." Moreover, as the motion judge specifically noted, defendants' failure to record its inspections, or maintain records of them, does not transform their actions into palpably unreasonable conduct.

Affirmed.

 

 

 

1 In granting summary judgment, the motion judge reviewed the same photographs. She concluded that the photo of the actual divot that caused plaintiff's fall showed a "one to one and a half inch height differential between the exposed earth and the top of the blades of grass." Viewing two other photographs, the judge determined they showed the "grass in general," with "no apparent scrapes or divots," and another area "where the grass appears to be more scarce," with "a dark spot, arguably a divot."

2 The Jerkins Court noted that the issue of immunity under the TCA was not before it. Jerkins, supra, 191 N.J. at 294 n.1.

3 Before the motion judge, plaintiff argued that N.J.S.A. 59:2-7 applied. That section provides: "A public entity is not liable for failure to provide supervision of public recreational facilities; provided, however, that nothing in this section shall exonerate a public entity from liability for failure to protect against a dangerous condition. . . ." To the extent plaintiff contends defendants' undertook to provide supervision, and did so negligently, see, e.g., Law v. Newark Bd. of Ed., 175 N.J. Super. 26, 32 (App. Div. 1980), our analysis still applies. Plaintiff's injury was not proximately caused by defendants' negligent supervision.