Can you sue if you get hurt in a NJ public playground?
CAN YOU SUE IF HURT IN A PUBLIC PLAYGROUND?
If you are hurt in a public municipal playground in New Jersey you may want to sue for your injuries. However, the New Jersey Tort Claims Act immunizes municipalities from tort liability in certain situations. In others, it makes your chances of winning very difficult. So, what do you do if you take a tumble and get really hurt? Are you left without a remedy? You might be, but there are situations where you can sue a municipality and recover money damages in court.
Suppose we have a potential plaintiff, who slips into a hole under a swing at a municipal park while trying to help his nursery school aged child off of the swing. Let’s assume our potential plaintiff suffered multiple fractures to his leg requiring surgery. Is the Borough negligent if the ground under the swings was not properly maintained? Should the park workers have maintained a level surface of wood chips underneath the swing area in the park?
The issue is more complicated than a regular slip and fall case. Under the New Jersey Tort Claims Act, (“N.J.S.A. “) Title 59, et seq., that potential plaintiff would have to first prove serious permanent injuries, as N.J.S.A. 59:9-2(d) requires that the plaintiff demonstrate that he or she has suffered a "permanent loss of body function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600." Secondly, our hypothetical plaintiff must show that a dangerous condition existed on account of palpably unreasonable conduct by the municipality. Also, such a case can only fly if none of the immunity provisions are triggered. That is too long a story for this article. Assume for the moment that none are triggered (for example, inclement weather like snow and ice may trigger it). What remains is a very difficult case because the liability issue, or the “blame” and responsibility standard is very high when you try to sue a town or municipality. It’s like the difference between a 25 and a 60 yard field goal:
To recover under N.J.S.A. 59:4-2, the Act's general liability section, a plaintiff must show 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 that was incurred; and that a public employee created the dangerous condition or that the public entity had notice in time to protect against the condition itself. Additionally, there can be no recovery unless the action or inaction on the part of the public entity in protecting against the condition was “palpably unreasonable,” a term nowhere defined in the Act.
[Kolitch v. Lindedahl, 100 N.J. 485, 492-93, 497 A.2d 183 (1985) (citations omitted).] Id. at 490.
Well, as the statutory law does not define “palpably unreasonable,” we need to see what judges have interpreted it to mean. In Coyne v. The State of New Jersey, DOT, 182 N.J. 481, 867 A.2d 1159 (2005), the Court held:
We must now address whether [defendant’s] . . . actions were “palpably unreasonable.” N.J.S.A. 59:2-3d. This additional step is required because “there can be no recovery [under the Tort Claims Act] unless the action or inaction on the part of the public entity in protecting against the condition was ‘palpably unreasonable,’ a term nowhere defined in the Act.” Kolitch v. Lindedahl, 100 N.J. 485, 493, 497 A.2d 183 (1985).
“Palpably unreasonable” means more than ordinary negligence, and imposes a steep burden on a plaintiff. “[The term “palpably unreasonable”] implies behavior that is patently unacceptable under any given circumstances” and “it must be manifest and obvious that no prudent person would approve of its course of action or inaction.” Kolitch v. Lindedahl, supra, 100 N.J. at 493, 497 A.2d 183. See also Brown v. Brown, 86 N.J. 565, 575, 432 A.2d 493 (1981) (“[E]ven if a plaintiff were to establish [the prerequisites for negligence and liability on a public entity], he could not prevail if the action the public entity took or failed to take was not palpably unreasonable. This element, the action or inaction of the public entity, refers to the public entity's discretion in determining what action should or should not have been taken.”). (emphasis supplied). Id. at 493.
Well, that is complicated, isn’t it? I think so. It’s a difficult standard for lawyers as well as for jurors sitting at trial. Sometimes I wonder why the court just didn’t say “gross negligence”, but the “palpably unreasonable” is somewhat different – maybe a form of more intense negligence, or maybe an easier standard of fault. It depends on how each juror understands the instructions, or “charges” the judge gives him in such a case. The law is just not a rigid thing, its both practical and abstract, requiring a delicate balance between real world needs and over-thinking. That is where a seasoned litigator comes in handy. Can your lawyer translate “legalese” into regular common sense talk? If so, you can get the jury to hear your side of the story more effectively.
Another issue is “notice” of the dangerous condition, which is important because the town or municipality must be aware that a problem exists, as otherwise they would have had no chance to correct it. Absent some form of notice, liability usually does not attach, and the town or municipality would be blameless.
How does a lawyer trying to help his client leap over such a hurdle of legal maxims and complex logic to a satisfactory solution? First, an honest assessment of the chances and merits of the case must be made. If the case has wings, the best way to win is thorough preparation. That often makes opponents blink. Momentum is a big factor. If your lawyer does his homework, and your case has merit, momentum may force a settlement at near or during trial. The key is being ready to go all the way through to the end of trial. But keep in mind that cases against municipalities are difficult. They have clever lawyers too, and the law was designed to save municipal funds. If your case is strong on all counts, a suit or settlement is warranted. If weak on all counts, don’t pursue it as you are just wasting everybody’s time. However, if it’s weak or better on liability, but involves serious injuries, you have to give it serious thought.
Robert Ricco, an attorney admitted to practice in New Jersey and New York, lives in Bergen County. He welcomes questions from readers about legal issues affecting everyday life in suburbia. This column is not intended to be a comprehensive summary of recent developments in the law nor is it intended to provide legal advice or to render a legal opinion. Readers are advised to consult their own attorney for legal advice.