SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1289- 22 JOSEPH M. SHAY, JR., by and through his Guardian A d Litem, Joseph M. Shay, Plaintiff-Appellant/ Cross-Respondent,

v. HOL MD EL TOWNSHIP BOARD OF EDUCATION, VILLAGE ELEMENTARY SCHOOL, and GENERAL RECREATION, INC., 1 Defendants/Third-Party Plaintiffs-Respondents/ Cross-Appellants, v. LAURA SHAY and GENERAL RECREATION, INC., Third-Party Defendants.

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1 Defendant General Recreation, Inc. was dismissed fr om the matter without prejudice by way of a stipulation. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1289

- 22 Submitted March 20, 2024

– Decided May 13, 2024 Before Judges Currier and Firko. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L

- 0746

- 21. Ansell Grimm & Aaron, PC, attorneys for appellant/cross-respondent (Brian E. Ansell, on the briefs). Anderson & Shah, LLC, attorneys for respondent/cross-appellant (Todd Stephen McGarvey, of counsel and on the briefs).
PER CURIAM Plaintiff Joseph M. Shay, a minor by his guardian ad litem, appeals from the summary judgment dismissal of his second amende d complaint against defendants and third-party plaintiffs Holmdel Towns hip Board of Education (BOE) and Village Elementary School (collectively d efendants). Plaintiff was injured after school hours while using defendants' second-grade playground when another child who was playing tag ran into his arm and knocked him down. The child who ran into plaintiff was running across steps towards a platform o n the playground and standing on the same step as pla intiff when he bumped into him. Defendants moved for summary judgment, arguing pla intiff's second amended complaint was barred by the immunity provis ions of the New Jersey3 A- 1289

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Tort Claims Act (TCA), N.J.S.A. 59:1-1 to - 12 -3. Defendants also argued they were entitled to summary judgment because they did not owe plaintiff a duty of supervision, and plaintiff's liability expert, Elis e Dann, rendered a net opinion. In her report, Dann opined plaintiff "lost his bala nce while stepping from a moving suspended pod onto the landing deck of the c omposite playground equipment" and he "fell against the edge of the lan ding deck and was injured." Dann concluded that: (1) "[t]he failure of Holmde l [BOE] to provide a proper gate for a complete fenced enclosure . . . , allowed unsupervised access to the playground, which was a proximate cause of [ plaintiff's] playground injuries"; and (2) "[t]he failure of the Holmdel [B OE] and its agents to provide adult supervision in accordance with their own rules, when t hey knew or should have known that children were present and would be attracted to and use the playground, was a substantial contributing factor i n [plaintiff's] playground injuries." The record shows Dann relied on an acco unt provided by plaintiff's counsel, and she did not issue any subsequent repor t after discovery or depositions were completed. The motion judge considered the summary judgment r ecord and oral argument

. As a matter of law, the motion judge determined th at the unsecured playground was not a dangerous condition under N.J. S.A. 59:4- 2. She further4 A- 1289

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concluded that the "palpably unreasonable" standard under N.J.S.A. 59:4-2, and not the "ordinary negligence" standard in N.J.S.A. 59:2-2, wa s the applicable legal standard under which to consider plaintiff's claim.
T he motion judge found plaintiff failed to show: there was a physi cal defect in the playground; that a dangerous conditio n of the playground caused his fall; and that defendants created a dangerous c ondition or had notice of a dangerous condition in sufficient time prior to Jos eph's fall to correct any defects. The judge also found plaintiff's liability expert r endered a net opinion. Accordingly, the judge dismissed plaintiff's second amended complaint with prejudice. On appeal, plaintiff argues the heightened palpabl y unreasonable standard, found in N.J.S.A. 59:4-2, is inapplicable to his claims and the ordinary negligence standard applies. Alternatively, he con tends the evidence sufficiently shows the unsecured playground with an opening in the fence constituted a dangerous condition, defendants' cond uct was palpably unreasonable, and his claims for liability should n ot have been dismissed as a matter of law. Defendants cross-appeal and challenge the judge's r uling that plaintiff established a substantial permanent bodil y injury under N.J.S.A. 59:9

- 2(d).5 A- 1289

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We have considered these arguments in light of the record and applicable law. We affirm the dismissal of plaintiff's second amended complaint because there are no genuine issues of material fact that p recluded judgment as a matter of law under Rule 4:4 6-2(c), and dismiss defendants' cross-appeal as moo t. I. Viewed in the light most favorable to plaintiff, T emplo Fuente De Vida Corp. v. National Union Fire Insurance Co. of Pitts burgh, 224 N.J 189, 199 (2016), the pertinent facts are as follows. On Mar ch 11, 2019, plaintiff, then age nine, was using the playground while his sister participated in an extracurricular soccer clinic at Village Elementary School not affiliated with defendants. The playground was surrounded by a fence with an op ening in it loc ated near a parking lot. Plaintiff's mother, third-party defendant Laura Sha y, took her son to the playground and was supervising him at the time he f ell. She testified at her deposition that she did not know what caused her son to fall

. At her deposition, Shay testified that she did not believe the playgro und or equipment plaintiff was playing on was dangerous or unsafe. As a result of his fall, plaintiff sustained the f ollowing injuries: a displaced left wrist radius fracture; angulated lef t wrist ulna facture; and6 A- 1289

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compartment syndrome of the dorsal left forearm, vo lar left forearm, and left carpal tunnel. These injuries required two surgica l procedures and a ten-day hospitalization. Plaintiff has scarring of his lef t wrist and forearm as a result of the surgeries and experiences weakness and occasion al pain from his injuries. Plaintiff filed a complaint asserting tort claims a gainst the Holmdel BOE and Village Elementary School arising out of the playgr ound accident. Defendants filed a motion to dismiss under Rule 4:6 -2(e) in lieu of filing an answer. The motion judge granted defendants' mo tion, in part, and dismissed the third count of the complaint alleging nuisance. Defendants filed an answer and a counterclaim against plaintiff's mother allegin g negligent supervision. To avoid a conflict of interest, Joseph Shay, Sr., pla intiff's father, substituted as guardian ad litem for plaintiff. Avoiding reference to the TCA, plaintiff's second amended complaint, the operative pleading, alleged defendants' playground and premises were unsafe for his use, "[c]hildren were free to enter the unguarded playground through the ungated entrance without adult supervision," there was "no sign present near the ungated entrance stating that adult supervision was required," but a sign was present "near the locked double gate on the opposit e side of the playground" stating adult supervision was required, and the pla yground was "negligently"7 A- 1289

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maintained and "created a dangerous condition" by p ermitting "students to gain unlimited and unsupervised access" through the open ing in the fence and children were allowed to play "without adult superv ision." Also, plaintiff alleged defendants failed to warn persons of the "d angerous and hazardous conditions" that caused him to "sustain substantial and permanent injuries." Following discovery, defendants moved for summary judgment, maintaining there was no dangerous condition on the ir property, and plaintiff failed to establish prima facie evidence that defen dants' conduct was palpably unreasonable. See N.J.S.A. 59:4-2. Defendants als o asserted plaintiff failed to meet the injury threshold set forth in N.J.S.A. 59: 9-2(d), by not supplying objective medical evidence of a permanent loss of a bodily function. Plaintiff opposed the motion, arguing defendants' failure to completely enclose the playground constituted negligence, whic h led to hi s access to the playground when defendants were not present to supe rvise the activities of individuals utilizing the playground. Plaintiff also claimed that defendants' failure to completely secure the playground allow ed an access point in the otherwise locked enclosure and permitted children t o utilize the playground. Plaintiff contended defendants' action were "palpab ly unreasonable" and created a triable issue of fact.8 A- 1289

- 22 II. "The TCA indisputably governs causes of action in tort against governmental agencies within New Jersey." Gomes v. C nty. of Monmouth, 444 N.J. Super. 479, 487, (App. Div. 2016); see also N.J.S.A. 59:2-1(a) (concerning immunity of public entity generally) ; Nieves v. Off. of the Pub. Def., 241 N.J. 567, 571 (2020). Under the TCA, a public entity has a duty of care d ifferent from "that . . . owed under the negligence standard." Polzo v. Cnty of Essex, 209 N.J. 51, 76 (2012); see also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 460 (2009) (discussing when the palpably unreasonable conduct standard, which is higher than the ordinary negligence standard, applies to a public employee). When asserting a claim for injuries under the TCA, the p laintiff has the burden of satisfying each element of a cause of action under N.J.S.A. 59:4-2. Polzo, 209 N.J. at 66; Carroll v. N.J. Transit, 366 N.J. Supe r. 380, 386 (App. Div. 2004) ("[N.J.S.A. 59:4-2(a) - (b)] places the burden squa rely on the plaintiff to prove each of its elements . . . ."). A failure to present sufficient evidence establishing any element of a cause of action under N.J.S.A. 59:4-2 requi res dismissal of the claim. See Polzo, 209 N.J. at 66.9 A- 1289

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Only in limited circumstances are public entities l iable in tort under the TCA for injuries caused by conditions of a property . Under N.J.S.A. 59:4-2, a public entity is liable for injuries caused by the entity's property only where plaintiff established: (1) the public entity's "pr operty was in dangerous condition at the time of the injury"; (2) "the inju ry was proximately caused by the dangerous condition"; (3) "the dangerous condition created a reasonably foreseeable risk of the kind of injury which was in curred"; and (4) "a negligent or wrongful act or omission of [a public] employee . . . created the dangerous condition" or "a public entity had actual or constr uctive notice of the dangerous condition . . . ." Stewart v. Turnpike Auth., 249 N.J. 642, 656 (2022) (citation omitted) (quoting N.J.S.A. 59:4-2). A public entity is not liable for a dangerous condi tion of its property "if the action the entity took to protect against the c ondition or the failure to take such action was not palpably unreasonable." Vincit ore v. N.J. Sports & Exposition Auth. , 169 N.J. 119, 125 (2001) (quoting N.J.S.A. 59:4- 2)

. Plaintiff argues the material facts are disputed. He cont ends the omission of defendants to completely secure the subject play ground by allowing there to be an open access point in the otherwise locked enc losure allowing children to enter and utilize the playground equipment without supervision was "palpably10 A- 1289

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unreasonable, " created a dangerous condition, and should have been determined by a trier of fact. Plaintiff asserts the open space in the fence, with out a gate or similar mechanism, allowed unfiltered access to the playground and caused his injury. Plaintiff's arguments are belied by the re cord. Liability will be found if "a public entity had actual or constructive notice of the dangerous condition under [N.J.S.A.] 59:4-3 a sufficient time prior to the injury to have taken measures to protect against th e dangerous condition." N.J.S.A. 59:4-2(b). The public entity is

deemed to have constructive notice of a dangerous condition . . . only if the plaintiff establishes t hat the condition had existed for such a period of time and was of such an obvious nature that the public entity, i n the exercise of due care, should have discovered the condition and its dangerous character. [N.J.S.A. 59:4-3(b).] The Legislature did not intend to impose liability for a condition merely because danger may exist. See Levin v. Cnty. of Sa lem, 133 N.J. 35, 49 (1993). Rather, "[d]angerous condition" is a defined term a nd "means a condition of property that creates a substantial risk of injury whe n such property is used with due care in a manner in which it is reasonably fore seeable that it will be used." N.J.S.A. 59:4-1. Therefore, "[t]he dangerous condi tion, which is the predicate for liability of a public entity under N.J.S.A. 59: 4-2, must be a dangerous11 A- 1289

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condition inherent in property 'owned or controlled ' by the public entity." Dickson ex rel. Duberson v. Twp. of Hamilton, 400 N .J. Super. 189, 196 (App. Div. 2008) (alterations omitted) (citation and inte rnal quotation marks omitted). A dangerous condition must be a "'physical conditio n of the property itself'"; it does not refer "'to activities on the property.'" Levin, 133 N.J. at 44 (quoting Sharra v. City of Atlantic City, 199 N.J. Super. 53 5, 540 (App. Div. 1985)). There is little doubt plaintiff's injury did not r esult because defendants' property "was in dangerous condition at the time of [his] injury." "Consistent with the Legislature's purpose of providing broad i mmunity under the Act, . .

. the Legislature also intended a broad reading of th e dangerous condition of public property provisions of N.J.S.A. 59:4-2, with its h igher standard for imposition of liability." Ogborne, 197 N.J. at 459

- 60. Here, we conclude the motion judge correctly found plaintiff's injury resulted from another child bumping into him and no t from any physical defect at the playground. Like in Levin , the motion judge duly noted that "a lack of fencing did not create a defect by itself." Moreov er, plaintiff's mother was supervising him and did not believe the playground or equipment her son was playing on was dangerous or unsafe. Plaintiff's fall was an unfortunate accident. But even viewing the facts most favorably to plaint iff, a reasonable jury could12 A- 1289

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not conclude defendants were negligent, let alone p alpably unreasonable, for not completely enclosing the playground. We have carefully reviewed plaintiff's remaining a rguments and have determined they are without sufficient merit to war rant discussion in a written opinion. R. 2:11 -3(e)(1)(E). In light of our decision, we need not address defendants' cross-appeal. Affirmed. The cross-appeal is dismissed.