KAREN SMITH, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR BRENDEN WASNIEWSKI, A MINOR v. FIREWORKS BY GIRONE, INC.; DEPTFORD PARKS & RECREATION; DEPTFORD FUN DAY COMMITTEE; LEXINGTON INSURANCE COMPANY; WILLIAM DUKES AND COMPANY; WESTERN RISK SPECIALISTS, INC.; ISU INSURANCE SERVICE OF SAN FRANCISCO; ELLEN QUINE; JOHN DOE #1-10; JOHN DOE #11-50; AND ABC CORPORATION #1-5; AND ABC CORPORATION #1-5, DEFENDANTS, AND TOWNSHIP OF DEPTFORD
Supreme Court of New Jersey
June 23, 2004
850 A.2d 456 | 180 N.J. 199
Argued February 19, 2004
VI.
We, therefore, reverse the Appellate Division, vacate the judgment of conviction, and order a new trial consistent with this opinion.
For reversal—Chief Justice PORITZ and Justices VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE—6.
Opposed—None.
KAREN SMITH, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR BRENDEN WASNIEWSKI, A MINOR, PLAINTIFF-APPELLANT, v. FIREWORKS BY GIRONE, INC.; DEPTFORD PARKS & RECREATION; DEPTFORD FUN DAY COMMITTEE; LEXINGTON INSURANCE COMPANY; WILLIAM DUKES AND COMPANY; WESTERN RISK SPECIALISTS, INC.; ISU INSURANCE SERVICE OF SAN FRANCISCO; ELLEN QUINE; JOHN DOE #1-10 (FICTITIOUS NAME OF INDIVIDUALS, SOLE PROPRIETORSHIPS, PARTNERSHIPS AND/OR CORPORATIONS WHO OWNED, OCCUPIED, MAINTAINED, INSPECTED, REPAIRED AND/OR CONTROLLED THE AREA KNOWN AS FASOLA PARK); JOHN DOE #11-50 (FICTITIOUS NAME OF INDIVIDUALS EMPLOYED BY FIREWORKS BY GIRONE, INC., TOWNSHIP OF DEPTFORD, DEPTFORD PARKS & RECREATION, DEPTFORD FUN DAY COMMITTEE, JOHN DOE #1-10 AND/OR ABC CORPORATION # 1-5); AND ABC CORPORATION # 1-5 (FICTITIOUS NAME OF INDIVIDUALS, SOLE PROPRIETORSHIPS, PARTNERSHIPS AND/OR CORPORATIONS IN CHARGE OF SETUP, PERFORMANCE AND/OR CLEAN-UP OF “PYRO THEATRICAL” FIREWORKS); I/J/S/A, DEFENDANTS, AND TOWNSHIP OF DEPTFORD, DEFENDANT-RESPONDENT.
Argued February 19, 2004—Decided June 23, 2004.
Robert A. Hicken argued the cause for respondent (Capehart & Scatchard, attorneys; Patricia L. Dee on the brief).
Justice LONG delivered the opinion of the Court.
On this appeal we are asked to interpret the language of the New Jersey Tort Claims Act (TCA) that requires, as a prerequisite to public entity liability, that the public property must be in a “dangerous condition at the time of the injury.”
The public entity appealed and a divided panel of the Appellate Division reversed. The majority held that the firework was neither owned nor controlled by the public entity and that the infant plaintiff‘s removal of it from the park prevented the conclusion that the public property (the park) remained in a “dangerous condition at the time of the injury.” The dissent countered that plaintiff‘s injury was an inevitable and foreseeable result of harmful “contact” or “exposure” to a dangerous condition on public property and fell squarely within the contemplation of the TCA.
Because we are satisfied that the conclusion of the dissenting opinion more closely conforms with the legislative intent underlying that Act, we now reverse.
I
In 1997, plaintiff Karen Smith, individually and in her capacity as the guardian ad litem of Brenden Wasniewski (collectively plaintiffs), filed a lawsuit against the Township of Deptford, Deptford Parks and Recreation, Deptford Fun Day Committee (collectively Deptford), and Fireworks by Girone, Inc. (Girone), alleging that Brenden was injured as a result of a dangerous condition on public property for which all named defendants were responsible.
The facts underlying the claim essentially are uncontroverted and are distilled from the summary judgment documents and proceedings. Deptford owns and maintains Fasola Park, a recreational area containing basketball courts, baseball fields, a swimming pool, walking trail, and picnic area. The park is the setting for “Deptford Day,” an annual festival held in May. To celebrate Deptford‘s tricentennial, the 1995 Deptford Day was scheduled to
In anticipation of Deptford Day, Deptford entered into a contract with Girone to conduct the fireworks display. Under the terms of the contract, Girone guaranteed a “Thorough Check Of The Area For Any Misfired Shells” on the night of the show. Deptford, in turn, assumed responsibility for the post-display clean-up: “CUSTOMER will also be RESPONSIBLE for all POST DISPLAY CLEAN-UP with respect to removal of debris and POLICING of area AT FIRST LIGHT following the exhibition.” Both the Fire Marshal and the President of Girone testified in depositions that if unspent shells were found, Girone was to be notified immediately to come and reclaim them; municipal officials were not to touch those items.
Following the display on the evening of May 20, Girone employees and Deptford‘s Fire Marshal, using high-powered lamps provided by the Fire Department, conducted a post-display search. That search resulted in the recovery of at least six potentially live fireworks, all of which were turned over to Girone. The following morning, the Fire Marshal returned to the park to search for additional fireworks in accordance with the contract. After two hours, although he found debris, he found no more unexploded charges.
A week after the display, Brenden Wasniewski picked up fireworks and firework debris, both on and near the launch site at Fasola Park. He disposed of all but the largest firework, ultimately hiding it at home. On July 3, Brenden and a friend took the firework to a nearby wooded area, treated it with gasoline and repeatedly cut away the cardboard encasing the actual charge. Eventually the firework exploded in Brenden‘s left hand, causing severe injuries. Subsequently, a private investigator hired by plaintiffs found an additional unspent firework in Fasola Park.
After extensive discovery, Deptford moved for summary judgment on a variety of issues. For purposes of this appeal, the pertinent claim is Deptford‘s assertion that plaintiffs’ cause of
The trial court denied the motion, holding that the combination of the firework and the park constituted a consolidated dangerous condition that satisfied the TCA. According to the court, that dangerous condition was capable of creating a “continuing injury” that began when Brenden picked up the firework and ended when it exploded weeks later.
Plaintiffs settled their claims against Girone and the case against Deptford proceeded to a trial on all issues. The jury returned a verdict in plaintiffs’ favor. In so doing, it found as follows: (1) after the fireworks display, the unexploded firework created a dangerous condition at Fasola Park; (2) the dangerous condition was a proximate cause of Brenden‘s accident; (3) the dangerous condition created a foreseeable risk of injury; (4) Deptford‘s action or inaction was palpably unreasonable; (5) Girone was negligent; (6) Girone‘s negligence was a proximate cause of Brenden‘s injuries; (7) Brenden was negligent; and (8) his negligence was a proximate cause of his own injuries. The jury returned a $1,600,000 verdict for plaintiffs and apportioned liability to Deptford at 56%, Girone at 33%, and Brenden at 11%; that is, $896,000 against Deptford, $528,000 against Girone, with $176,000 allocated to Brenden‘s comparative negligence.
Deptford appealed and a divided panel of the Appellate Division reversed the denial of the motion for summary judgment. The majority presumed for the purposes of its opinion that a dangerous condition existed at Fasola Park by virtue of the unexploded firework. The court went on to hold that Deptford did not “own” the firework and that when Brenden removed the firework from the park the public entity lost “control” of it. Concomitantly, the court concluded that the park was not in a “dangerous condition at the time of the injury” because Brenden‘s removal of the firework rendered it safe at that critical point.
In my view, it is counterintuitive to conclude that by picking up the firework and taking it home with him (thereby curing the dangers to others), the very danger that the entity‘s negligence created, Brenden has relieved the town of all responsibility for its own palpably unreasonable failure to clean up after the fireworks display.
. . .
The temporal separation between Brenden‘s picking up the firework and his actually setting it off is what the majority finds fatal to his recovery. To the contrary, I view that separation in time as part of the logical, predictable chain of events prompted by the dangerous condition.
Another way to express my view of the first required element of the cause of action for the injury resulting from a dangerous condition of public property is to consider the word “injury” in this section more broadly than immediate physical injury and to include harmful “contact” or “exposure” that sets into motion a predictable, if not inevitable, resulting injury.
[Footnote omitted.]
Plaintiffs appeal as of right based on the dissent.1 R. 2:2-1(a)(2).
II
Plaintiffs argue that Deptford was the title owner of, or otherwise controlled, the errant firework by contractually assuming responsibility for the post-display cleanup; that the firework itself constituted the dangerous condition of public property, thus satisfying the “dangerous condition at the time of the injury” element of
Deptford counters that the fireworks were not public property because its contract with Girone was for services only; that the assumption of some cleanup duties was insufficient to transfer control; that Brenden‘s removal of the firework eliminated the
III
In Willis v. Dept. of Conservation & Economic Development, 55 N.J. 534, 537-38, 264 A.2d 34 (1970), this Court abrogated the blanket of sovereign immunity that had insulated the State completely from liability in tort. The Legislature thereafter responded by enacting the TCA. Malloy v. State, 76 N.J. 515, 518-19, 388 A.2d 622 (1978). Although acknowledging the “inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity,” Kahrar v. Borough of Wallington, 171 N.J. 3, 19, 791 A.2d 197 (2002) (Verniero, J., dissenting) (citing
In this case, we are not presented with a conflict among the TCA‘s liability provisions and any statutory or common-law immunity. See
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in a 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 failure to take such action was not palpably unreasonable.
[
As used in this chapter:
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.
b. “Protect against” includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.
c. “Public property” means real or personal property owned or controlled by the public entity, but does not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.
The 1972 Task Force Comments to
This provision sets forth the conditions of liability under which a public entity may be held liable for the dangerous conditions of its property. This provision comports generally with the principles of liability established by the New Jersey courts for local public entities in their capacity as landowners. See B.W. King, Inc., v. West New York, 49 N.J. 318, 230 A.2d 133 (1967); Miehl v. Darpino, 53 N.J. 49, 247 A.2d 878 (1968); Hoy v. Capelli, 48 N.J. 81, 222 A.2d 649 (1966); Amelchenko v. Freehold Borough, 42 N.J. 541, 201 A.2d 726 (1964); Henry Clay v. Jersey City, 74 N.J.Super. 490, 181 A.2d 545 (Ch.Div.1962). It is anticipated that this section will be developed to the extent possible in accordance with common law principles of landowner liability.
[Attorney General‘s Task Force on Sovereign Immunity, comment to
N.J.S.A. 59:4-2 (1972), as found in, Margolis & Novak, Claims Against Public Entities, comment onN.J.S.A. 59:4-2 , 107 (Gann 2004).]
That is the backdrop for our inquiry.
IV
The Appellate Division determined that Deptford should have been granted summary judgment because plaintiffs failed to satisfy the temporal requirement in
A.
We turn first to plaintiffs’ contention that the firework was owned or controlled by Deptford, and that it constituted the public property that was in a dangerous condition at the time of Brenden‘s injury. We agree with the Appellate Division that Deptford did not own the firework. As noted, Deptford‘s contract with Girone was for services and not for goods. Indeed if all had gone as planned, all of the fireworks would have been destroyed in the show. Put another way, the contract was to eliminate the fireworks and not to transfer ownership to the town.
Recognizing, however, that all of the fireworks might not be disposed of during the display, the contract specifically provided that Girone would search for and retrieve “misfired shells” on the night of the show. Although Deptford undertook first-light cleanup of “debris,” along with a “policing” function, the testimony of the Fire Marshal and the president of Girone established that if any unspent shells were found at Fasola Park, Girone was to be called to the scene immediately to retrieve them. Under no circumstances were the municipal officials even to “pick up” the unexploded fireworks.
Clearly, then, there is no support for the notion that Deptford became the title owner of the errant firework within the meaning of
We assume for this analysis, as did all of the courts below, that the dangerous condition of public property was the combination of the unexploded firework and the public park. The pivotal question is whether the language of
B.
The Appellate Division‘s negative answer to that question was fueled, in part, by the idea that plaintiffs’ cause of action is a “novel one” under the TCA that courts should “exercise restraint” in accepting. Attorney General‘s Task Force on Sovereign Immunity, supra; e.g., Burg v. State, 147 N.J.Super. 316, 320, 371 A.2d 308 (App.Div.), certif. denied, 75 N.J. 11 (1977). Our research reveals that that conclusion is flawed. According to the Attorney General‘s Task Force,
Nor are fireworks liability cases somehow distinct. At common law, private landowners holding fireworks displays were not immune from damages to children injured by unexploded shells after the exhibition. See Spenzierato v. Our Lady Monte Virgine Soc. of Mut. Benefit of E. Orange, 112 N.J.L. 93, 169 A. 831 (E. & A. 1934); Doughty v. Atlantic City Bus. League, 80 A. 473 (N.J. E. & A. 1911); Sebeck v. Plattdeutsche Volkfest Verein, 64 N.J.L. 624, 46 A. 631 (E. & A. 1900). Moreover, public entities sponsoring such fireworks displays have been held to the same standard as private landowners. See, e.g., Cook v. Gettysburg Borough, 39 Pa. D. & C. 4th 342, 346 (Pa. Com. Pl. 1997) (finding cause of action based on infant plaintiff‘s injury on private property after removal of unexploded firework from public park fell within real property exception to Pennsylvania TCA); Lottes v. Pessina, 174 S.W.2d 893, 897 (Mo. Ct. App. 1943) (holding removal of errant explosive by child from public park and subsequent injury on private property did not absolve city of liability); Kingsland v. Erie County Agr. Soc., 298 N.Y. 409, 84 N.E.2d 38, 46 (1949) (determining removal of fireworks from public park by child who was subsequently injured on private property readily foreseeable); see also T.C. Williams, Annotation, Liability for Injury by Explosive or The Like Found By, or Left Accessible To, a Child, 10 A.L.R. 2d 22 (1950).
It may be that the Appellate Division viewed the circumstances of this case as somehow unusual because the injury took place off the public premises. However, the opposite is true. “[I]n the majority of the cases in our courts as well as the courts of other States involving explosives, the injured child has taken the explosive either to his home or to some other place than where he found it before being injured.” Lottes, supra, 174 S.W.2d at 896.
In Roe by M.J. v. N.J. Transit Rail Operations, Inc., 317 N.J.Super. 72, 721 A.2d 302 (App.Div.1998), certif. denied, 160 N.J. 89 (1999), a twelve year-old plaintiff took a shortcut to a swimming pool through a New Jersey Transit Train Station gate that was bolted into an open position. The gate opened onto park land under a highway overpass. The area was poorly lit, surrounded by thick vegetation and had a history, known to the authorities, of criminal assault. The New Jersey Transit route into the park was regularly taken by citizens. On the day in question, a man dragged the plaintiff off and raped her as she crossed through the gate. The trial court granted summary judgment to New Jersey Transit. The Appellate Division reversed, concluding that even though the injury took place in the park, a jury could determine that by bolting its gate open, New Jersey Transit invited the public “to traverse the perilous foot path under the I-280 overpass, thereby substantially enhancing the public‘s risk of harm.” Id. at 82. In sum, the court recognized that a dangerous condition on public property could underpin liability for injuries occurring off the site where the
In Ayers v. Jackson Township, 106 N.J. 557, 565, 525 A.2d 287 (1987), contamination in a landfill operated by a public entity leached into and poisoned an aquifer that, in turn, supplied the private wells of Jackson Township residents. In that case, the public entity was not insulated from liability although the injury complained of took place on private property some distance from the dangerous landfill.
Finally, in Posey, supra, we were faced with a case involving a culvert owned by a public entity that led to a pond on private property in which a child drowned. Plaintiff sued on the theory that the unexpected drop-off in the private pond was caused by scouring or channeling created by the force of the water running through the culvert as part of the public entity‘s storm drainage system. The trial court granted summary judgment to the public entity and the Appellate Division affirmed. We reversed, holding that a public entity can be liable for injuries occurring on private property if they are caused by its “activities” on public property. Id. at 184. More particularly, we held that the public entity “treated” the private property as its own by using it as part of an integrated storm drainage system and thus was liable because it “controlled the property” within the meaning of
Although those cases are not identical to each other or to this case, what can be distilled from them is that there is nothing novel or unusual about holding a public entity liable for foreseeable injury caused by a dangerous condition on public property even if the injury occurs off the public premises. In short, we see no basis whatsoever for denominating plaintiffs’ claim as novel.
C.
In this case, however, we are faced with the specific language of the TCA that requires the public property to be in a “dangerous
It seems to us, however, that that happenstance is not a principled basis on which to decide the matter. Rather we need to address a broader question: Did the Legislature intend
To answer that question, we return to the language of the TCA:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in a 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.
[
The Legislative history of the Act is silent regarding the words at issue here and no New Jersey case has ever addressed them. Our research further reveals that among the tort claims statutes of our sister jurisdictions, only two incorporate the “at the time of the injury” language, see
Plaintiffs argue, and the Appellate Division rejected, properly we think, the view that the “at the time of the injury” language is a restatement of proximate cause. As a perusal of
Nor can we countenance the suggestion that the intent of that language was that public entities are to be liable for injuries that occur only at the point in time and at the location of the dangerous condition. Our courts have rejected that interpretation consistently for over seventeen years, see Saldana, supra, Roe, supra, Posey, supra, and Ayers, supra, in favor of allowing recovery for injuries occurring on private property after the passage of time, so long as the injury was foreseeable and was proximately caused by the dangerous condition on public property.
In construing a statute it is to be assumed that the Legislature is thoroughly conversant with its own legislation and the judicial construction placed thereon. Barringer v. Miele, 6 N.J. 139, 144, 77 A.2d 895 (1951). And the construction of a statute by the courts, supported by long acquiescence on the part of the Legislature or by continued use of the same language or failure to amend the statute, is evidence that such construction is in accord with the legislative intent. Egan v. Erie R. Co., 29 N.J. 243, 250, 148 A.2d 830 (1959).
We therefore must assume that whatever initially brought about the insertion of the language at issue into the TCA, the Legislature is now satisfied that the ultimate injury sustained by a plaintiff need not occur at the time and location of the dangerous condition on public property for public entity liability to attach.
However, knowing what a statute does not mean is a far cry from the contrary, as Deptford‘s failure to proffer a single
To be sure, this case is not a perfect fit with the words of
It is frequently difficult for a draftsman of legislation to anticipate all situations and to measure his words against them. Hence cases inevitably arise in which a literal application of the language used would lead to results incompatible with the legislative design. It is the proper function, indeed the obligation, of the judiciary to give effect to the obvious purpose of the Legislature, and to that end “words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms.” Alexander v. New Jersey Power Light Co., 21 N.J. 373, 378, 122 A.2d 339 (1956); Wright v. Vogt, 7 N.J. 1, 6, 80 A.2d 108 (1951); Glick v. Trustees of Free Public Library, 2 N.J. 579, 584, 67 A.2d 463 (1949).
[New Capitol Bar & Grill Corp. v. Div. of Employment Sec., 25 N.J. 155, 160, 135 A.2d 465 (1957).]
We hold, therefore, that when a public entity creates or suffers a dangerous condition on public property that leads ineluctably and foreseeably to injury, it is not insulated from liability under
V
The judgment of the Appellate Division is reversed.
Justice LaVECCHIA, dissenting.
The majority seemingly concedes that there is no “principled” way to fit the facts of this case within the requirement of
To save the cause of action the majority simply dispenses with the required temporal element. The majority concludes that although the statutory definition of the cause of action is written in mandatory terms, the Legislature must have intended that the requirement would be dispensed with in cases such as this, where it could not be satisfied. Otherwise, posits the majority, a whole category of plaintiffs—those who remove dangerous articles from public land and are injured by them on private property at a later time (“the transport cases“)—will be without remedy against the public entity. The majority apparently abhors that result and thinks the Legislature would as well. That, in its opinion, justifies its disregard of a clearly stated statutory mandate. I disagree and would affirm the decision of the Appellate Division.
The New Jersey Tort Claims Act,
I.
The principles guiding application of the TCA are settled. It is well known that as a direct result of the Court‘s abrogation of common law sovereign immunity in Willis v. Department of Cons. & Econ. Dev., 55 N.J. 534, 264 A.2d 34 (1970), the Legisla-
The TCA‘s declarations section explains:
The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which 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. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carrying out the above legislative declaration.
[
N.J.S.A. 59:1-2 .]
See also The Report Attorney General‘s Task Force on Sovereign Immunity 210, comment to
Turning to the pertinent liability provision with those principles in mind,
[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 failure to take such action was not palpably unreasonable.
[(Emphasis added).]
The TCA defines “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“; and defines “public property” as “real or personal property owned or controlled by the public entity.”
The majority dispenses with the “time of” requirement because it obviously cannot be met in “transport cases” such as the one before us, and foreclosing liability seems to fly in the face of what it perceives as legislative acceptance of caselaw allowing recovery under the principle that “the ultimate injury sustained by a plaintiff need not occur at the time and location of the dangerous condition on public property for public entity liability to attach.” Ante at 215, 850 A.2d at 466. It also purports to find support for its conclusion in the Task Force Comment to
This section recognizes the difficulties inherent in a public entity‘s responsibility for maintaining its vast amounts of public property. Thus it is specifically provided that when a public entity exercises or fails to exercise its discretion in determining what action should or should not be taken to protect against the dangerous condition that judgment should only be reversed where it is clear to the court that it was palpably unreasonable. Bergen v. Koppenal, 52 N.J. 478, 480, 246 A.2d 442 (1968). That decision was based on the thesis that a public entity‘s discretionary decisions to act or not to act in the face of competing demands should generally be free from the second guessing of a coordinate branch of Government. In addition, a public entity is not prohibited from asserting the traditional common law defenses to liability.
[Task Force Comment, supra, at 221, comment to
N.J.S.A. 59:4-2 .]
The above portion of the Comment reflects that the TCA was establishing a complex analysis involving multiple inquiries concerning the alleged dangerous condition of public property. Within that framework, the Legislature has connected, in no uncertain terms, the dangerous condition on public property to the time of injury as a limitation for liability to attach. Moreover, the time of injury and its connection to the dangerous condition of public property also has relevance in the inquiry concerning public entity notice of the condition and in the assessment of the public entity‘s reaction to the dangerous condition under the palpably unreasonable test.
A temporal connection provides the link between the property under the public entity‘s control, the dangerous condition, and the injury to be prevented. Nowhere in this legislative scheme for imposing liability is there a suggestion that the public entity was meant to be liable simply because a dangerous article once occupied its property and later, after it had been removed, caused injury. The Task Force Report therefore does not support the majority‘s disregard of the “at the time of” requirement.
Furthermore, the language is not ambiguous and in need of judicial construction. The majority simply is redrawing the terms of the statutory provision to suit its perceived belief that the Legislature would have intended liability to exist in this instance. That is contrary to how this Court has approached the TCA in the past. Nor is it consistent with past judicial applications of
The primary focus must be whether the park was in a “dangerous condition” at the time of the injury. As our holdings consistently reflect, “dangerous condition” refers only to “the physical condition of the property itself and not to activities on the property.” Levin v. County of Salem, 133 N.J. 35, 44, 626 A.2d 1091 (1993) (citation omitted and internal quotation marks omitted). See also Margolis and Novack, supra, comment to
The majority agrees with the Appellate Division below that the firework is not “the dangerous condition on public property” because it is not public property. Ante at 210, 850 A.2d at 463. The majority finds that it is only the brief combination of the park property and the firework together that brings about a dangerous condition on public property for which the public entity may be held liable. That would be so pursuant to
We have not dealt previously with the question whether a party may recover for injuries sustained from an object that was obtained in a public park and later transported to private property where injury occurred a few weeks later. Although the majority may not see the cause of action as novel, it has novelty in that sense. That said, we have permitted recovery against a public entity for injuries sustained on private property only in limited instances when consistent with a fair reading of the language of the dangerous condition on public property provision. In Posey, supra, 171 N.J. at 187-88, a public entity was held liable for injuries that occurred on adjacent private property when the public entity “creat[ed] a dangerous condition on private property that is under the ‘control’ of the public entit[y].” Absent a showing of public entity “control” of a dangerous condition that has been created on private property, liability otherwise is restricted to a dangerous condition that arises on the public property at the time injury
The majority‘s reliance on those and other cases ignores that in each case there was no temporal disconnect between the dangerous condition, which the public entity allowed to occur and for which it was responsible, and the injury. So, too, in Roe, supra, 317 N.J.Super. at 72, 80, the dangerous condition caused by the permanently bolted-open gate on public property existed at the time of injury. Nor does Ayers, supra, provide assistance in this matter. There we addressed the types of damages a plaintiff could claim under the Tort Claims Act. Id. at 569. Although the decision does not address application of
It follows, then, that the majority lacks a firm foundation in asserting legislative acquiescence. The TCA literally does not authorize recovery for injuries occurring on spatially disconnected private property at a time distant from when the dangerous condition existed on public property. The Legislature simply did not provide a remedy for what I have characterized as the transport cases. Indeed, a contrary conclusion requires us to ignore the obvious fact that the temporal connection to the point of injury is a significant fact in determining reasonableness of the public entity‘s conduct.
Deptford theorized that the firework was the dangerous condition. Accepting the firework as the dangerous condition, it follows that the property was in a dangerous condition at the time [the child] lit it and was injured. Indeed, the judge found that “[i]f you carry around a bomb, according to this statute, the dangerous condition is when it goes off.” However, in our view, the difficulty with this analysis is that the firework at the time it went off and injured [the child] was not “public property” within the definition of First, Deptford did not own the firework. The 1995 contract between Deptford and Girone was not a sales contract; it was a services contract in which Girone agreed to furnish a licensed pyrotechnician, fireworks, and all personnel and equipment necessary to execute the fireworks display. * * * Second, in our view, once [the child] removed the firework from the park, it was no longer “controlled by the public entity,” as required by Plaintiffs have theorized that the park was the dangerous condition. Accepting the park as the dangerous condition, it follows that it was no longer in that condition after [the child] took the unspent firework home. Thus, the park was not in a dangerous condition at the time he lit the unspent firework. Even assuming that plaintiffs can establish a dangerous condition with sufficient degree for the issue to go to a jury, they cannot prove, as a matter of law, the element required for liability under Justice VERNIERO joins this opinion. For reversal—Chief Justice PORITZ and Justices LONG, ZAZZALI, ALBIN and WALLACE—5. For affirmance—Justices VERNIERO and LaVECCHIA—2. 850 A.2d 473 IN THE MATTER OF PHILIP L. KANTOR, AN ATTORNEY AT LAW. Argued April 27, 2004—Decided June 24, 2004.