JOANAR CHACAVAGE v. NORTHERN BURLINGTON COUNTY REGIONAL SCHOOL DISTRICT
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2799-16T4
JOAN ARCHACAVAGE and CHESTER
ARCHACAVAGE,
Plaintiffs-Appellants,
v.
NORTHERN BURLINGTON COUNTY
REGIONAL SCHOOL DISTRICT, BOARD
OF EDUCATION,
Defendants-Respondents.
________________________________________________
Submitted March 5, 2018 – Decided May 3, 2018
Before Judges Messano and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Docket No.
L-2938-14.
Costello Law Firm, attorneys for appellants
(Stanley G. Wojculewski, on the brief).
McDowell Posternock Apell & Detrick, PC,
attorneys for respondents (Daniel Posternock
and Diana R. Sever, on the brief).
PER CURIAM
Plaintiff Joan Archacavage appeals the Law Division's January
20, 2017 order granting summary judgment to defendant Burlington
County Regional School District Board of Education, and dismissing
plaintiff's complaint.1 The facts disclosed by the motion record
viewed in a light most favorable to plaintiff, Rule 4:46-2(c), are
straightforward.
In the early evening of December 6, 2013, plaintiff attended
a play at the high school, along with her future-daughter-in-law,
Andrea Tilton. Tilton's daughter, plaintiff's grandchild, who was
wheelchair-bound, was performing. After the performance,
plaintiff and Tilton left the auditorium and proceeded down a
hallway to a backstage area, where they were going to locate the
child and escort her home.
A group of volunteer parents historically would assist
selling tickets and refreshments, and usher parents and guests.
Teacher Valerie Lynn Gargus was in charge of the theater group.
She testified at her deposition that it was a long-standing custom
for the "helper parents [to] take [an empty coat rack] up into
the hallway before a show, . . . put a cloth over it . . . to keep
the parents – well, the audience from seeing the students go back
and forth between the theater room and the backstage area." The
barrier was intended to give the children privacy and keep parents
and guests out, however, Gargus was aware that parents and others
1
The claims of plaintiff's husband, Chester Archacavage, are
wholly derivative of plaintiff's claims. For that reason, we use
the singular, "plaintiff," throughout the opinion.
A-2799-16T4
2
in attendance would frequently simply go around the rack. There
was usually a laminated sign placed at eye level on the rack,
advising people not to go past, however, Gargus testified she did
not recall seeing the sign on the rack that evening.
At the next night's production, Gargus checked to make sure
the sign was on the rack. Since then, the school abandoned the
use of shrouded coat racks and simply placed a "band stand" on
each side of the hall, with signs that said "only cast and crew
beyond this point." Vice Principal Brandon Bennett testified that
he believed the cloth covering the rack reached the floor.
Tilton saw many people in the hallway, parents and children,
going around the narrow space between the coat rack and the hallway
wall. She proceeded first, followed by plaintiff, who described
what happened thereafter:
As we got walking, there was this thing, I
will say sign, but it was covered. There was
nothing you could read or anything. It was
covered up. So I went to go around that and
my toe got caught in the wheel. As far as I
can remember, that's what happened. Then I
fell.
Plaintiff, seventy years old at the time, suffered serious
injuries, including fractures to her patella and humerus, the
latter requiring open-reduction surgery.
Plaintiff's expert, Wayne F. Nolte, a licensed professional
engineer, concluded the coat rack, as located, presented a
A-2799-16T4
3
hazardous condition because of "the presence of a low rise trip
hazard created by the configuration of the base to the coat rack
in a foreseeable pedestrian path in a means of egress." He opined
that the conditions failed to comply with the requirements of the
BOCA Code, the Uniform Construction Code, and the 2006
International Fire Code. Although the base of the rack was painted
a "warning orange," Nolte opined it was not elevated sufficiently
to be visible to plaintiff. He further noted that the base of the
coat rack projected perpendicularly twelve inches from the cross
bar upon which any coat, or the sheet, rested, thereby providing
plaintiff with a false impression of possible safe passage. The
casters and wheels also projected out from the base of the rack
by several inches.
Defendant's expert, David M. Kenney, noted there were exit
doors that permitted plaintiff and Tilton to access the back stage
area without the need to go around the coat rack. Kenney opined
that the orange-painted base was within plaintiff's "visual
field," although he never mentioned the sheet that reached the
ground covered the rack. Kenney opined that the narrow gap
between the coat rack and wall, approximately eighteen inches,
made it obvious that pedestrians should not try to pass. He
further reasoned that because the rack was on wheels, plaintiff
could have rolled the rack to provide a wider lane for passage.
A-2799-16T4
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Defendant moved for summary judgment, arguing that plaintiff
failed to demonstrate the coat rack was a dangerous condition
under the Tort Claims Act (the TCA), specifically,
N.J.S.A. 59:4-
2, or that its conduct in placing the shrouded rack to partially
block the hallway was palpably unreasonable. Ibid. The motion
judge reasoned that although Vincitore v. Sports and Exposition
Authority,
169 N.J. 119 (2001), stated the existence of a dangerous
condition and whether the entity's conduct was palpably
unreasonable are generally jury questions, "like any other fact
question . . . [that determination] is subject to the court's
assessment whether it can reasonably be made under the evidence
presented." Id. at 124 (alteration in original) (quoting Black
v. Borough of Atl. Highlands,
263 N.J. Super. 445, 452 (App. Div.
1993)). She granted defendant's motion. In a supplementary
statement of reasons submitted pursuant to Rule 2:5-1(b), the
judge wrote the evidence failed to demonstrate
the barrier erected at defendant's property
posed a risk to the general public when used
in a normal, foreseeable manner. The evidence
presented, viewed in a light most favorable
to plaintiff as the non-moving party,
established that the alleged dangerous
condition consisted of a coat rack that
stretched the width of a hallway, covered by
a sheet that extended to the floor, that was
erected to prevent entry of the public from
accessing a student dressing area. There was
no evidence to suggest that anyone had
previously tripped, fallen or even encountered
any difficulty relating to the barrier.
A-2799-16T4
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Nothing was presented to the court by
plaintiff, or otherwise, to establish that the
coat rack barrier was dangerous to foreseeable
users when used with due care.
Moreover, . . . it was objectively
unreasonable for plaintiff to attempt to
maneuver around the barrier that was clearly
erected to block the entrance of the public.
As such, the condition of the property could
not reasonably be said to have caused
plaintiff's injury.
Before us, plaintiff essentially argues the evidence
presented material disputed facts as to whether defendant created
a dangerous condition on its property, and whether that conduct
was palpably unreasonable. As a result, summary judgement was
improper. We agree and reverse.
We review the grant of summary judgment de novo, applying the
same standard used by the trial court. Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,
224 N.J. 189,
199 (2016). "That standard mandates that summary judgment be
granted 'if the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged
and that the moving party is entitled to a judgment or order as a
matter of law.'" Ibid. (quoting R. 4:46-2(c)). We owe no
deference to the trial court's legal analysis or interpretation
of a statute. Palisades at Fort Lee Condo. Ass'n v. 100 Old
A-2799-16T4
6
Palisade, LLC,
230 N.J. 427, 442 (2017) (citing Manalapan Realty,
L.P. v. Twp. Comm. of Twp. of Manalapan,
140 N.J. 366, 378 (1995)).
The general rule is that "a public entity is immune from tort
liability unless there is a specific statutory provision that
makes it answerable for a negligent act or omission." Polzo v.
Cty. of Essex,
209 N.J. 51, 65 (2012) (Polzo II). A public entity
may be liable for injuries caused by a condition on its property
if a plaintiff can establish:
[1] the existence of a "dangerous condition,"
[2] that the condition proximately caused the
injury, [3] that it "created a reasonably
foreseeable risk of the kind of injury which
was incurred," [4] that either the dangerous
condition was caused by a negligent employee
or the entity knew about the condition, and
[5] that the entity's conduct was
"palpably unreasonable."
[Vincitore,
169 N.J. at 125 (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. Cty. of Essex,
196 N.J. 569, 585
(2008) (Polzo I).
"The [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.'" Garrison v. Twp. of
A-2799-16T4
7
Middletown,
154 N.J. 282, 286-87 (1998) (quoting
N.J.S.A. 59:4-
1(a)). Whether the property presents a dangerous condition, and
whether the public entity's conduct was palpably unreasonable, are
generally questions of fact. Vincitore,
169 N.J. at 123, 130.
"A dangerous condition under [the TCA] refers to the 'physical
condition of the property itself and not to activities on the
property.'" Wymbs v. Twp. of Wayne,
163 N.J. 523, 532 (2000)
(quoting Levin v. Cty. of Salem,
133 N.J. 35, 44 (1993)). However,
as we said in King v. Brown,
221 N.J. Super. 270, 275 (App. Div.
1987), "application of the dangerous condition standard requires
consideration of both the physical characteristics of the public
property as well as the nature of the activities permitted on that
property. Indeed, the definition of dangerous condition in
N.J.S.A. 59:4-1a requires consideration of the reasonably
foreseeable use of the property." "[A] condition of public
property which is safe for one activity may become a dangerous
condition when the property is converted to a different activity."
Id. at 274-75.
Here, the judge concluded it was "objectively unreasonable
for plaintiff to maneuver around the barrier that was clearly
erected to block the entrance of the public." However, as the
Court said, "A use that is not objectively reasonable from the
community perspective is not one 'with due care.' To this extent,
A-2799-16T4
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'used with due care' refers not to the conduct of the injured
party, but to the objectively reasonable use by the public
generally." Garrison,
154 N.J. at 291. "Thus the standard is
whether any member of the general public who foreseeably may use
the property would be exposed to the risk created by the alleged
dangerous condition." Vincitore,
169 N.J. at 125.
Defendant argues that the motion judge correctly concluded
plaintiff's "deliberate disregard" of a known barrier means
plaintiff did not use the property with "due care" as a matter of
law. We disagree.
In Vincitore, the Court described the "three-part analysis"
required by Garrison:
The first consideration is whether the
property poses a danger to the general public
when used in the normal, foreseeable manner.
The second is whether the nature of the
plaintiff's activity is "so objectively
unreasonable" that the condition of the
property cannot reasonably be said to have
caused the injury. The answers to those two
questions determine whether a plaintiff's
claim satisfies the Act's "due care"
requirement. The third involves review of the
manner in which the specific plaintiff engaged
in the specific activity. That conduct is
relevant only to proximate causation, N.J.S.A.
59:4-2, and comparative fault,
N.J.S.A. 59:9-
4.
[Vincitore,
169 N.J. at 126 (emphasis added)
(citing Garrison,
154 N.J. at 292).]
A-2799-16T4
9
The record in this case permits a factual finding that the
school intended the coat rack would limit passage beyond, and
provide privacy to students passing from the auditorium to the
dressing area. To achieve this second purpose, the school covered
the coat rack with a sheet that reached the ground. Inferentially
on this record, one could find the cloth hid the coat rack's
protruding wheels, casters and orange-painted frame from public
view. Thus, while it might be reasonable for the school to have
erected a barrier for privacy in the hallway, the potential danger
of this barrier was obscured, because its contours were hidden.
Moreover, it was reasonably foreseeable that students,
parents and guests would avoid the barrier, which, by its very
nature, was not intended to and did not block the entire hallway.
Indeed, the record permits a finding that students sometimes went
around the barrier during performances, and the staff was aware
several parents and guests did the same after performances,
particularly since there was no sign advising parents and guests
not to pass through the eighteen-inch space between the shrouded
rack and the wall. We agree with plaintiff that the evidence here
presented a jury question.
Additionally, the motion judge found as a matter of law no
jury could find defendant acted in a palpably unreasonable manner.
"The term 'palpably unreasonable' connotes 'behavior that is
A-2799-16T4
10
patently unacceptable under any given circumstance.'" Wymbs,
163 N.J. at 532 (quoting Kolitch v. Lindedahl,
100 N.J. 485, 493
(1985)).
Here, the coat rack was covered to the floor with a cloth.
Unlike other occasions, there was no warning sign advising people
not to pass, a modest and reasonable attempt to limit the
possibility of injury resulting from the device. In addition, the
record discloses the subsequent measures taken by the school to
dissuade people from going "backstage" which did not involve
partially blocking the hall. While we do not determine whether
this evidence is admissible at trial, plaintiff was entitled to
its consideration for purposes of opposing summary judgment on the
issue of palpable unreasonableness. See, e.g., Kane v. Hartz
Mountain Indus.,
278 N.J. Super. 129, 148 (App. Div. 1994) (citing
Apgar v. Hoffman Constr. Co.,
124 N.J.L. 86, 90 (E. & A. 1940))
(noting evidence of subsequent remedial measures may be admissible
"to show that a feasible alternative for avoiding the danger
existed at the time").
Reversed.
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