MERCEDES AYBAR v. BOROUGH OF CARTERET, and DEPARTMENT OF PARKS AND RECREATION OF THE BOROUGH OF CARTERET -

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0317-17T3


MERCEDES AYBAR,

          Plaintiff-Appellant,

v.

BOROUGH OF CARTERET, and
DEPARTMENT OF PARKS AND
RECREATION OF THE BOROUGH
OF CARTERET,

     Defendants-Respondents.
_________________________________

                    Argued October 25, 2018 – Decided January 22, 2019

                    Before Judges Simonelli, O'Connor and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-4759-15.

                    Stephen D. Brown argued the cause for appellant.

                    John W. Harding argued the cause for respondents
                    (Martin, Kane & Kuper, attorneys; John W. Harding,
                    on the brief).

PER CURIAM
      Plaintiff, Mercedes Aybar, appeals from a July 21, 2017 order granting

summary judgment to defendants, Borough of Carteret and the Department of

Parks and Recreation of the Borough of Carteret, and dismissing her personal

injury action under  N.J.S.A. 59:1-1 to 12-3, the New Jersey Tort Claims Act

(TCA). We affirm.

      On August 24, 2013, plaintiff fractured her ankle after slipping and falling

on a tarp underneath an inflatable children's water slide and pool set up in

Carteret Park. Juan Carbonell, defendants' employee, set up the slide and pool.

Carbonell first placed a tarp down, then inflated the slide and pool on top of the

tarp. He also placed several orange cones along the edge of the tarp. A hose,

set up at the top of the slide, supplied water to the slide and filled the pool. As

children went down the slide into the pool, water splashed over the edges onto

the tarp.

      Plaintiff brought her niece to play on the slide and was joined by plaintiff's

friend and his daughter. At her deposition, plaintiff testified she stood by the

ladder and helped children climb up to the slide, while her friend stood at the

bottom and helped children step out of the pool. At the time plaintiff fell,

Carbonell was sitting in a chair some distance away from the slide. Plaintiff

asserted that as she was helping children from the pool, she noticed a child slip


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and fall after getting out of the pool, so she moved towards her to help. Plaintiff

slipped, fell and landed with her right foot underneath her. X-rays revealed she

broke her ankle, which later required surgery.

      On August 3, 2015, plaintiff filed a complaint alleging defendants

maintained a dangerous condition on their property that caused her injury. On

May 23, 2017, defendants moved for summary judgment. The motion judge

granted defendants' motion on July 21, 2017, stating his reasons on the record.

This appeal followed.

      On appeal, plaintiff argues several material facts are in dispute and the

motion judge improperly concluded they were either immaterial or undisputed.

Plaintiff lists several facts she argues are in dispute, including: the size of the

pool, whether the tarp was pitched and angled toward a drain, whether the orange

cones were placed to warn people, and whether it was reasonably foreseeable

that adults would step on the tarp even if told not to do so. Plaintiff also argues

a genuine dispute of material fact exists regarding whether the slide and pool

were a dangerous condition. She submits the slide and pool posed a foreseeable

danger to the public, about which defendants were aware, because Carbonell

took steps, such as supervising children and setting up cones, to protect against

the risk. Plaintiff argues a jury could find her use of the slide and pool was


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reasonable because parental supervision was expected. Thus, plaintiff asserts

her injury, despite her reasonable and foreseeable use, indicates defendants

maintained a dangerous condition.

      When reviewing a grant of summary judgment, we use the same standard

as the trial court. Globe Motor Co. v. Igdalev,  225 N.J. 469, 479 (2016). A

court should grant summary judgment, "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.

(citing R. 4:46-2(c)). The evidence must be viewed in "the light most favorable

to the non-moving party." Mem'l Props., LLC v. Zurich Am. Ins. Co.,  210 N.J.
 512, 524 (2012). "Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard

mandates that the opposing party do more than 'point[] to any fact in dispute' in

order to defeat summary judgment."          Globe Motor Co.,  225 N.J. at 479

(alteration in original) (quoting Brill v. Guardian Life Ins. Co. of Am.,  142 N.J.
 520, 529 (1995)).

      However, the reviewing court should "not make credibility determinations

and must afford the opponent of the summary judgment motion all favorable

inferences." Kopin v. Orange Prods., Inc.,  297 N.J. Super. 353, 366 (App. Div.


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1997). If the case "presents no material factual disputes, the court simply applies

the appropriate law to the facts." Ibid.

      While plaintiff is correct that there were disputed issues of fact, none was

material. Utilizing the Brill standard, the motion judge first considered whether

the wet tarp underneath the slide and pool was a dangerous condition, then

whether defendants' actions were palpably unreasonable. The judge concluded

there was nothing inherently dangerous about the wet tarp because a reasonable

person would know it was wet upon stepping on it. Therefore, by failing to

prove a dangerous condition, plaintiff did not state a prima facie case of

premises liability against a public entity, making summary judgment

appropriate.

       N.J.S.A. 59:4-1 to -10 governs public entity premises liability and is the

Legislature's effort to limit public premises liability to all but the most egregious

circumstances. "[I]n balancing the liability and immunity provisions of the

TCA, 'immunity is the rule and liability is the exception.'" Smith v. Fireworks

by Girone, Inc.,  180 N.J. 199, 207 (2004) (quoting Posey v. Bordentown

Sewerage Auth.,  171 N.J. 181-82 (2002)).

               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

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            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 (emphasis added).]

      Thus, in order to succeed on a premises liability claim, a plaintiff must

prove: (1) the public property was in dangerous condition, (2) "the dangerous

condition created a [substantial and] foreseeable risk of, and actually caused,

injury to plaintiff," (3) the public entity knew of the dangerous condition, and

(4) the public entity's action to protect against the dangerous condition was

palpably unreasonable. Muhammad v. N.J. Transit,  176 N.J. 185, 194 (2003).

      Plaintiff argues she is not obliged to prove the public property was

physically defective or flawed in such a way as to create a dangerous condition



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and relies on Ogborne v. Mercer Cemetery Corp.,  197 N.J. 448, 461 (2009). Her

reliance on Ogborne is misplaced.

      Historically, our Supreme Court held the term "dangerous condition" only

refers "to the 'physical condition of the property itself and not to activities on

the property.'" Levin v. Cty. of Salem,  133 N.J. 35, 44 (1993) (quoting Sharra

v. City of Atlantic City,  199 N.J. Super. 535, 540 (App. Div. 1985); see also

Wymbs v. Twp. of Wayne,  163 N.J. 523, 523 (2000). A dangerous condition is

found when there is some physical defect in the property. See, e.g., Atalese v.

Long Beach Twp.,  365 N.J. Super. 1, 5 (App. Div. 2003) (finding dangerous

condition in uneven sidewalk); Daniel v. State Dept. of Transp.,  239 N.J. Super.
 563, 589-590 (App. Div. 1990) (State created dangerous condition by

constructing a median to appear like a ramp that caused cars to be cat apulted

into oncoming traffic); but see Polzo v. Cty. of Essex,  209 N.J. 51, 73-74 (2012)

(one-and-one-half-inch depression in road shoulder not designed as a bike lane

was not a dangerous condition). Reasonable use or misuse of property cannot

create a dangerous condition without a physical defect in the property itself.

See, e.g., Levin,  133 N.J. at 49-50.

      In Ogborne, a city's employee created a potentially dangerous condition

when he locked a park gate without checking the cemetery to make sure the park


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was empty as required.  197 N.J. at 461. The plaintiff was trapped inside and

was injured after vaulting a wall in an effort to get out of the cemetery. Id. at

453-54. The Ogborne Court explained it faced a "clash between two liability

provisions," i.e.,  N.J.S.A. 59:4-2(a) and N.J.S.A. 59:2-2's rules on public entity

respondent superior liability. Id. at 457-58. The Court determined it should

apply  N.J.S.A. 59:4-2(a), the more stringent of the two standards, in order to

respect the Legislature's intent to limit public entity liability for personal

injuries. Id. at 459-60. Thus, the public employee was said to have created a

dangerous condition, pursuant to  N.J.S.A. 59:4-2, when he locked the plaintiff

in the park. Id. at 461.1 Notably, there was no physical flaw in the property at

issue; rather, plaintiff's injury was sustained when she vaulted a wall to escape.

      The inflatable slide and pool is not a condition of the property. There is

no allegation they were set up over rocks or some other potentially dangerous

surface. Moreover, the pool and slide did not create a substantial risk of injury

even if due care was exercised and the property was used in a reasonably

foreseeable manner. Plaintiff did not carry her burden under the TCA because


1
  This court has previously held the presence or absence of lifeguards at public
beaches does not create a dangerous condition because their presence is
unrelated to the property's physical condition. See, e.g., Stempkowski v.
Borough of Mansquan,  208 N.J. Super. 328, 331-32 (App. Div. 1986); Sharra,
 199 N.J. Super. at 541.
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she was not injured by a condition of property. To the extent Ogborne can be

read as a retreat from the physical condition of property requirement, plaintiff's

claim still fails because she cannot prove the slide and pool presented a

dangerous condition. Further, even if plaintiff could demonstrate a "potentially

dangerous condition," such as the locked gate in Ogborne, no reasonable jury

could conclude the City's actions in installing cones as a safety monitor were

"palpable unreasonable."  N.J.S.A. 59:4-2.

      A "dangerous condition" "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(a).

Due care in use of property "depends on the variable element of risk of harm

inherent in any situation." Levin,  133 N.J. at 60 (quoting King v. Brown,  221 N.J. Super. 270, 276 (App. Div. 1987)). Our Supreme Court has explained that

the level of due care required in the use of property must be assessed objectively

based on a community ideal of reasonable behavior. Vincitore v. N.J. Sports &

Exposition Auth.,  169 N.J. 119, 127 (2001) (analyzing risk posed by an

unguarded railroad crossing from viewpoint of reasonable members of the

general public); Garrison v. Twp. of Middletown,  154 N.J. 282, 293 (1998)

(analyzing declivity in parking lot from viewpoint of reasonable train station


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user). Therefore, the question is whether the risk of harm is substantial when

the property is used by a reasonable person.

      Here, plaintiff argues the wet tarp was a dangerous condition because

users of the slide and pool could still slip even if the tarp was used carefully.

But she exaggerates how the reasonable person would approach this scenario.

The reasonable adult walking near a children's water slide and pool would be

aware the surrounding surfaces would become wet as children used it. The

reasonable person would have also seen the cones dotting the tarp and realize

she was potentially entering a wet and slippery area and should use caution while

walking. Plaintiff's slip and fall was an unfortunate accident, but we cannot say

the risk of her harm was so substantial that no amount of due care could have

prevented it.

      Plaintiff also argues it was palpably unreasonable for Carbonell to set up

the slide and pool, only place cones around it, and then leave it unsupervised.

Carbonell disputed plaintiff's account and stated he was supervising the

children. But even viewing the facts most favorably to plaintiff, it was not

unreasonable for Carbonell to watch from afar. This was not a public pool where

lifeguards are required to monitor children. Rather, this was a small, inflatable

slide and pool. Parents and caretakers supervised their young children as they


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played on it. Moreover, whether the cones around the tarp were an adequate

warning is largely irrelevant because the reasonable person upon seeing the

water slide and pool should know the surroundings surfaces were likely to be

wet. A reasonable jury could not conclude Carbonell's lack of supervision was

unreasonable, let alone palpably unreasonable.

      We have carefully reviewed plaintiff's remaining arguments and have

determined they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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