Bryce Patrick v. City of Elizabeth

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2792-15T1

BRYCE PATRICK, an infant by

his Guardian ad litem,

KRISTAL DAWN LINT and KRISTAL

DAWN LINT, individually, APPROVED FOR PUBLICATION

AS REDACTED

April 24, 2017

Plaintiffs-Appellants,

APPELLATE DIVISION

v.

CITY OF ELIZABETH and ELIZABETH

BOARD OF EDUCATION,

Defendants-Respondents.

______________________________

Submitted March 6, 2017 – Decided April 24, 2017

Before Judges Sabatino, Haas, and Currier.

On appeal from the Superior Court of New

Jersey, Law Division, Union County, Docket

No. L-4121-13.

Rinaldo and Rinaldo Associates, LLC,

attorneys for appellants (Matthew T.

Rinaldo, on the briefs).

La Corte, Bundy, Varady & Kinsella, attorneys

for respondent City of Elizabeth (Robert F.

Varady and Christina M. DiPalo, on the

brief).

Nirenberg & Varano, LLP, attorney for

respondent Elizabeth Board of Education

(Howard M. Nirenberg, of counsel; Sandra N.

Varano, on the brief).

The opinion of the court was delivered by

CURRIER, J.A.D.

In this appeal, we are asked to address whether defendants

City of Elizabeth (City) and Elizabeth Board of Education (BOE)

are immune from liability under the New Jersey Tort Claims Act

(TCA), N.J.S.A. 59:1-1 to 12-3, for injuries sustained by the

minor plaintiff as a result of a motor vehicle accident. After

a review of the contentions in light of the record and

applicable principles of law, we are satisfied that the grant of

summary judgment was correct as defendants are each entitled to

particular immunities under the TCA. We also discern no reason

to disturb the judge's decision to deny plaintiff a fourth

extension of discovery in the wake of his determination that

exceptional circumstances were not demonstrated.

We derive the facts from the summary judgment record.

Eight-year-old plaintiff Bryce Patrick was with several other

children crossing the street at an intersection near Brophy

Field in Elizabeth when he was struck by a motor vehicle.

Brophy Field is a municipal park that is located approximately a

block away from a public elementary school. On the day in

question, an unidentified motorist stopped to allow the children

to cross the street. As the children were crossing, another

motor vehicle passed the stopped car and struck Bryce. There is

2 A-2792-15T1

a "Watch for Children" sign posted on the street on which the

cars were driving.

I.

Plaintiff1 filed a complaint against the City and BOE2

alleging the area of the accident was a dangerous condition and

there was inadequate signage to warn motorists of the presence

of children.

All parties consented to an extension of the initial

discovery end date (DED). Thereafter, plaintiff requested three

additional extensions of discovery, the last setting an end date

of November 15, 2015. The September 4, 2015 order required

plaintiff to serve expert liability and medical reports by

October 14, 2015, with arbitration scheduled for November 19,

2015.

After plaintiff failed to provide a liability expert report

in compliance with the order, defendants filed a motion to bar

any forthcoming liability expert report. Plaintiff opposed the

motion, and cross-moved to extend discovery sixty days in order

to take the depositions of several City employees and a police

1 Bryce's mother, Kristal Dawn Lint, brought the claim on her

son's behalf as his guardian ad litem. She also alleged

individual claims. We refer to them collectively as plaintiff.

2 Plaintiff's claims against the driver of the motor vehicle that

struck him were resolved prior to the institution of suit.

3 A-2792-15T1

officer. Plaintiff asserted these depositions were necessary

for the completion of the liability expert's report. The

depositions were not scheduled to take place until October 16,

2015.

A certification presented by an attorney in plaintiff's

counsel's office further advised the court that lead counsel had

fallen on October 15, suffering a serious knee injury that was

confining him to his home. Plaintiff asserted there were

"exceptional and extraordinary circumstances" to warrant a

further extension of sixty days to complete depositions and

serve a liability expert report.

On November 6, 2015, Judge Mark P. Ciarrocca heard oral

argument on the motions. In addressing plaintiff's application

to extend discovery, the judge noted that discovery had

previously been extended three times. Pursuant to Rule 4:24-1,

discovery could only be extended upon a showing of exceptional

circumstances and the judge found that plaintiff had not

satisfied that standard. He noted that despite the many

extensions of discovery, counsel was still seeking to complete

fact witness depositions and obtain an expert report. Judge

Ciarrocca concluded: "The Court finds that under these

circumstances that the moving party has failed to make a showing

that there was diligence in pursuing discovery and has failed to

4 A-2792-15T1

make a showing that the circumstances surrounding the completion

of discovery are completely beyond the control of counsel and

the litigant." The judge further concluded that counsel's

recent unfortunate injury was not germane to the issue of

exceptional circumstances because the expert report had been due

prior to the date of counsel's fall. Therefore, the motion to

extend discovery was denied and defendants' motions to bar any

liability expert reports were granted.

II.

Defendants moved for summary judgment on November 20, 2015.

On December 2, plaintiff presented a motion for reconsideration

of the order barring its liability expert. Oral argument was

conducted on all of the motions on December 18. After a

discussion of the applicable law governing a motion for

reconsideration, Judge Ciarrocca found that plaintiff had not

provided "any new facts or any decisions that the Court either

overlooked or misapplied in denying . . . the prior application,

which the Court notes would have been the fourth extension of

the discovery end date." The judge reiterated his prior

findings that plaintiff had not established exceptional

circumstances and denied the motion.

In moving for summary judgment, the City asserted

immunities under several sections of the TCA. The City argued

5 A-2792-15T1

plaintiff had failed to prove the area was a dangerous condition

or that the City had any notice, actual or constructive, of a

dangerous condition. The City also argued that N.J.S.A. 59:4-5

provided immunity for a public entity's failure to provide

ordinary traffic signs and N.J.S.A. 59:4-4 was not applicable to

the City as liability under that provision only applied in

emergency situations.

Plaintiff asserted in opposition that this area required

additional signage, and as the area involved a school zone, it

inherently called for a higher safety standard of care. In

addition, plaintiff argued the City failed to follow the

national standards for traffic control devices as established by

the Manual on Uniform Traffic Control Devices (Traffic Manual).

Even if federal regulations were not applicable to the tort

liability issues, plaintiff argued she had established that the

area was a dangerous condition, and that the City was on notice

of the condition due to multiple accidents within that area in

the two years prior to the accident.

The BOE argued in support of its summary judgment motion

that it did not own, control, or maintain the roadway on which

the incident had occurred and it was not responsible for the

placement of traffic signs. Plaintiff responded that the BOE

6 A-2792-15T1

was responsible for school property, and therefore, it must

ensure the public road outside the school was likewise safe.

On February 1, 2016, Judge Ciarrocca granted summary

judgment in favor of defendants. In considering the claims

against the City, the judge found that plaintiff had failed to

provide any proofs of the existence of a dangerous condition

required under N.J.S.A. 59:4-2 to impose liability. There was

no authority presented that a violation of the Traffic Manual

would override the immunity granted under the TCA. The judge

also concluded that plaintiff had failed to sustain her burden

of establishing that the accident would not have occurred if

there was additional signage in the area.

Judge Ciarrocca also addressed the contentions against the

BOE and rejected them, finding there was no evidence to sustain

plaintiff's argument that the BOE owed plaintiff "a duty to

ensure the area outside of the school property was in a

reasonably safe condition." He further noted that the BOE did

not control the area nor did it have authority over the signage

placed there.

III.

On appeal, plaintiff argues that the judge (1) erroneously

ruled that she failed to prove the existence of a dangerous

7 A-2792-15T1

condition and (2) incorrectly barred her liability expert

report. We disagree and affirm.

We review a grant of summary judgment under the same

standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209

N.J. 35, 41 (2012). We must determine whether there are any

genuine issues of material fact when the evidence is viewed in

the light most favorable to the non-moving party. Id. at 38,

41. "The inquiry is 'whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.'"

Liberty Surplus Ins. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-

46 (2007) (quoting Brill v. Guardian Life Ins., 142 N.J. 520,

536 (1995)). "[T]he legal conclusions undergirding the summary

judgment motion itself [are reviewed] on a plenary de novo

basis." Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J.

369, 385 (2010).

A.

Plaintiff contends that the trial judge did not properly

consider critical facts presented as proof of the existence of a

dangerous condition. Plaintiff alleges that the lack of speed

limit signs and school zone signage in this particular spot as

well as faded crosswalks, combined with the increased traffic

flow from the Jersey Gardens Mall, created a dangerous

8 A-2792-15T1

condition. As such, plaintiff asserts that the City and the BOE

knew or should have been aware of this dangerous condition, and

were therefore liable for the child's injuries.

Public entity liability in New Jersey under the TCA is

limited. Polzo v. Cty. of Essex, 209 N.J. 51, 55 (2012).

Generally, a public entity is "immune from tort liability unless

there is a specific statutory provision imposing liability."

Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002). Even if

liability exists, "[c]ourts must 'recognize[] the precedence of

specific immunity provisions,' and ensure 'the liability

provisions of the Act will not take precedence over specifically

granted immunities.'" Parsons v. Mullica Twp. Bd. of Educ., 440

N.J. Super. 79, 95 (App. Div. 2015) (alteration in original)

(quoting Weiss v. N.J. Transit, 128 N.J. 376, 380 (1992)).

N.J.S.A. 59:4-2 provides in pertinent part that

[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 . . . 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.

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

9 A-2792-15T1

N.J.S.A. 59:4-1 states that 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." A public

entity will have constructive notice of a dangerous condition

under N.J.S.A. 59:4-3(b) if "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."

Liability will not be imposed "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. "[P]alpably unreasonable implies behavior that is patently

unacceptable under any circumstance and that . . . must be

manifest and obvious that no prudent person would approve of its

course of action or inaction." Holloway v. State, 125 N.J. 386,

403-04 (1991) (citation omitted).

Here, Judge Ciarrocca noted that plaintiff failed to

present any proof of an actionable dangerous condition. In her

brief, plaintiff references "the high number of accidents that

occurred only in the two years prior to this accident" as

constructive notice to defendants of a dangerous condition.

10 A-2792-15T1

However, a review of the police reports provided by plaintiff

reveals no similar accidents reported in this area.3

Plaintiff also argues that the lack of signage at the spot

of the accident denoting a school zone, or children crossing,

was a dangerous condition for which both defendants bear

liability. We reject this argument for similar reasons. There

was no evidence in the record of complaints to the City

regarding this area, nor were there any proofs presented to

conclude that defendants were palpably unreasonable in not

placing additional signage in the area around the school, apart

from the children crossing sign that was further down the street

closer to the school. The decision of what type of signage and

where to place it is within the discretion accorded to a

municipality and is immunized under N.J.S.A. 59:2-3(a).4

3 Only one incident is reported involving a pedestrian; in that

report, a car making a left turn did not see a pedestrian

pushing a stroller in the crosswalk and struck the stroller.

This incident does not bear any resemblance to the facts before

us and would not place defendants on notice of a dangerous

condition in this area.

4 "A public entity is not liable for an injury resulting from the

exercise of judgment or discretion vested in the entity."

N.J.S.A.

59:2-3(a).

11 A-2792-15T1

Regarding the issue of signage, traffic signals, or warning

signs, Judge Ciarrocca also noted the immunity accorded to

defendants under N.J.S.A. 59:4-5, which provides that a public

entity is not liable for "an injury caused by the failure to

provide ordinary traffic signals, signs, markings or similar

devices." (emphasis added). Plaintiff argues that a sign in a

school zone is not an "ordinary" sign subject to immunity under

the statute because school zones require a higher standard of

care. Therefore, plaintiff contends that the failure to place a

sign in a school zone should be analyzed solely under dangerous

condition principles pursuant to N.J.S.A. 59:4-2.5 We disagree.

Although N.J.S.A. 59:4-5 does not expressly define the term

"ordinary," we have previously considered its definition in this

context and noted the dictionary definition of "regular, usual,

normal, common, often reoccurring and not characterized by

peculiar or unusual circumstances." Spin Co. v. Md. Cas. Co.,

136 N.J. Super. 520, 524 (Law Div. 1975) (citing Black's Law

Dictionary 1249 (4th ed. 1957)). Nothing was presented that the

roadway in question would not fit within this definition of

"ordinary."

5 Plaintiff does not contend that defendants were liable under

N.J.S.A. 59:4-4 for a failure to place emergency signs or

signals in the area.

12 A-2792-15T1

In addressing plaintiff's argument that a school zone

imposes a special burden on defendants, we note that when the

Legislature has chosen to impose a higher standard of care in a

school zone, it has done so explicitly. We note the examples of

increased penalties for driving while intoxicated, see N.J.S.A.

39:4-50, and enhanced charges for distributing or possessing

controlled dangerous substances within a school zone, see

N.J.S.A. 2C:35-7. There is no such differentiation provided in

the TCA, and therefore, no evidence of such a legislative

intention.

In lacking such intention, we decline to carve out an

exception for liability under the TCA for signage in a school

zone or to denote signs in a school zone as anything but

"ordinary." We have previously considered, and rejected,

whether there should be a "special relationship exception" to

the TCA. In Macaluso v. Knowles, 341 N.J. Super. 112 (App. Div.

2001), a child was killed when he ran out into the street from

between illegally parked cars in front of a school. Id. at 113.

There, the plaintiff argued that the failure to enforce the

parking laws and provide emergency signs and markings rendered

the municipality liable. Id. at 115. The plaintiffs further

contended that a special relationship existed to negate the

TCA's immunities. Id. at 116. In considering the exception, we

13 A-2792-15T1

stated that the Legislature "rejected the concept of a statute

that imposed liability with specific exceptions . . . .

[Instead], 'public entities are immune from liability unless

they are declared to be liable by enactment.'" Id. at 117

(alteration in original). Because the initial consideration is

whether an immunity applies, we held that there is no special

relationship exception to the TCA. Ibid.

We apply a similar rationale here and are satisfied that

defendants were immunized from liability under N.J.S.A. 59:4-5

because the determination as to the advisability or necessity of

a particular sign or warning device at any particular place

requires the exercise of discretion. "N.J.S.A. 59:4-5 simply

specifies one particular type of discretionary activity to which

immunity attaches." Aebi v. Monmouth Cty. Highway Dep't., 148

N.J. Super. 430, 433 (App. Div. 1977) (finding that "N.J.S.A.

59:4-5 is entirely consistent with N.J.S.A. 59:2-3

immunizing public entities from liability for injury caused by

an exercise of judgment or discretion vested in the entity").

A review of New Jersey's Motor Vehicle and Traffic Laws

reinforces the Legislature's intention that the installation of

traffic signs remain a discretionary function of municipalities.

See N.J.S.A. 39:4-98 ("Appropriate signs giving notice of the

speed limits . . . may be erected if the commissioner or the

14 A-2792-15T1

municipal or county authorities, as the case may be, so

determine they are necessary.") (emphasis added); See also

N.J.S.A. 39:4-8.10(b)

([A] municipality . . . may . . . construct

traffic calming measures where appropriate,

which may include, but are not limited to,

speed humps on streets under municipal or

county jurisdiction with a posted speed of

30 mph or less and which have fewer than

3,000 vehicles per day when any road

construction project or repair of a street

set forth in this subsection is undertaken

and located within 500 feet of that street

is a school or any property used for school

purposes.)

[(Emphasis added).]

The use of the word "may" in both provisions suggests that this

authority rests within the discretion of a municipality. There

is no genuine issue that the City misapplied its discretion in

this case in not situating an additional sign in front of the

park, having already placed one in front of the school farther

down the street. Defendant BOE, meanwhile, is not a

municipality.

B.

As to the BOE, plaintiff concedes the Board does not own,

control, or maintain the roadway but alleges it still had a

duty, because of the park's proximity to school property, to

"use reasonable care to construct, design and maintain the

aforesaid area in a safe and suitable condition for use so that

15 A-2792-15T1

persons traversing said area . . . might use [the] area

[safely]." Plaintiff argues that the BOE's knowledge that the

park would be used at times that schools were closed rendered it

liable and negated any immunity.

To impose liability under the TCA, there must be ownership

of the pertinent property. N.J.S.A. 59:4-2 provides in part

that a "public entity is liable for injury caused by a condition

of its property." Public property is defined as "real or

personal property owned or controlled by the public entity."

N.J.S.A. 59:4-1(c). It is undisputed that the BOE did not own

the roadway where this accident occurred. It therefore, cannot

be held liable for property owned by another entity that

contains an allegedly dangerous condition. See Brothers v.

Borough of Highlands, 178 N.J. Super. 146 (App. Div. 1981)

(rejecting appellant's attempt to extend liability under the TCA

to property not owned by the municipality).

Finally, plaintiff has presented no proofs to support her

contention that the BOE was required to ensure that the City

installed proper school area signage. Even if such proofs were

to exist, the BOE was entitled to immunity under N.J.S.A. 59:4-5

as discussed, supra.

[At the court's direction, the published

version of this opinion omits Section IV

concerning the discovery extension issue and

16 A-2792-15T1

resultant barring of expert reports. R.

1:36-2(a).]

We discern no abuse of discretion or misapplication of the

law in Judge Ciarrocca's refusal to further extend the discovery

period in this case.6

Affirmed.

6 We note, without further comment, that an expert opinion in

this matter is not likely to have materially affected the trial

judge's legal analysis and our affirmance of the applicable

immunities granted to defendants under the TCA that serve to

negate their liability to plaintiff under these circumstances.

17 A-2792-15T1