NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4148-17T1
PATRICIA EAK and JOSEPH
EAK, her husband,
Plaintiffs-Appellants,
v.
CENTRAL REGIONAL SCHOOL
DISTRICT, CENTRAL REGIONAL
HIGH SCHOOL, and CENTRAL
REGIONAL BOARD OF EDUCATION,
Defendants-Respondents.
__________________________________
Argued March 5, 2019 – Decided March 26, 2019
Before Judges Fisher and Hoffman.
On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-2201-16.
Justin Lee Klein argued the cause for appellants
(Hobbie, Corrigan & DeCarlo, PC, attorneys; Justin
Lee Klein, of counsel and on the brief).
Mitchell S. Berman argued the cause for respondents.
PER CURIAM
On May 5, 2015, plaintiff Patricia Eak arrived at Central Regional High
School to watch her son play baseball on the junior varsity field, as she had done
approximately ten other times. She parked in an adjacent lot and walked toward
the field, crossing the parking lot and a driveway. She stepped over a curb, onto
a grassy downward slope, and then walked toward the bleachers on the third-
base side. As she walked down the slope, plaintiff somehow stumbled 1 without
falling and broke her ankle.
Plaintiff commenced this personal injury action against defendants in
August 2016.2 After discovery was completed, defendants successfully moved
for summary judgment, and plaintiff now appeals, arguing summary judgment
should not have been granted because:
I. THE TRIAL COURT MISAPPLIED THE
SUMMARY JUDGMENT STANDARD, PARTICU-
LARLY IN THE CONTEXT OF THE TORT CLAIMS
ACT.
II. DEFENDANTS' LIABILITY FOR THE
DANGEROUS CONDITION OF THEIR PROPERTY
SHOULD BE DECIDED BY A JURY.
1
At her deposition, plaintiff testified that she did not notice anything that
contributed to the accident and she did not recall tripping over anything.
2
The complaint included her husband's loss of consortium claim.
Notwithstanding his status as a plaintiff, our references to "plaintiff" relate only
to Patricia Eak.
A-4148-17T1
2
A. A Jury Could Reasonably Conclude
That Defendants' Athletic Complex Was In
A Dangerous Condition.
B. A Jury Could Reasonably Conclude
That Plaintiffs Satisfied The Other
Elements To Establish Defendants'
Liability Pursuant To N.J.S.A. 59:4-2.
III. DEFENDANTS WERE NOT ENTITLED TO
SUMMARY JUDGMENT UNDER N.J.S.A. 59:2-3(c).
Even when viewing the facts in the light most favorable to plaintiff, see Liberty
Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445 (2007); Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we find insufficient
merit in these arguments to warrant further discussion in a written opinion, R.
2:11-3(e)(1)(E), adding only a few brief comments about whether defendants
were entitled to the immunity provided by the Tort Claims Act, N.J.S.A. 59:1-1
to 12-3.
We start with an understanding that the grassy area on which plaintiff
stumbled was an unimproved condition. The evidential materials provided in
the moving and opposing papers unmistakably show a gradual slope from the
A-4148-17T1
3
turf abutting the parking lot toward the playing field. 3 The Tort Claims Act
declares that "[n]either a public entity nor a public employee is liable for an
injury caused by a condition of any unimproved public property . . . ." N.J.S.A.
59:4-8. Public property is improved "when there has been substantial physical
modification of the property from its natural state, and when the physical change
creates hazards that did not previously exist and that require management by the
public entity." Troth v. State, 117 N.J. 258, 269-70 (1989). Improving a portion
of property does not eliminate immunity from unimproved areas of the property.
Id. at 272.
Although it is true the playing fields on this school's property and some
of the surrounding areas had been improved through the addition of steps and
walkways to other fields, defendants made no similar change to the grounds
between the parking lot and the junior varsity field. 4 Notwithstanding the
improvements taken elsewhere, the unimproved areas are not transformed so as
3
In light of the applicable summary judgment standard, we also assume, despite
debate about this in the trial court, that the slope provided the only means to
access the field.
4
The record reveals the playing fields were built in the 1950s or 1960s and,
between 2010 and 2014, other parts of the complex were renovated and paths
and stairs were installed but not around the junior varsity field.
A-4148-17T1
4
to impose a standard other than N.J.S.A. 59:4-8. We agree with the motion
judge's view of the circumstances:
The area which the plaintiff fell was a natural condition.
Certainly there are hazards in walking along surfaces
which are not perfectly flat. This was one of them.
There was no hidden danger, there was no sprinkler
head, there was no valve cover, there was nothing that
caused the plaintiff to lodge her foot or lose her balance
or the like. It was a natural condition of the property
which was well known to everyone who traversed it and
it was not the only passageway between the parking lot
and the field. [5]
The [c]ourt finds that there has been no violation of the
plaintiff’s right and Central Regional is entitled tort
claims immunity in this case. I stand squarely on that
proposition, and the Court would cite Carr versus
Dover Township . . . which is an unreported Appellate
Division case which mirrors the issue in this one. [6]
Plaintiff was hurt on a slope that was a natural part of the landscape and would
have remained so regardless of whether the school built the field. We agree that
no liability attached to defendants for this unimproved portion of its property.
5
As noted earlier, there was a dispute about the availability of other means of
accessing the field. For present purposes and in providing plaintiff with an
understanding of the facts most favorable to her, we assume this pathway was
the only means of reaching the junior varsity field.
6
The judge mistakenly relied on and cited this unreported decision. R. 1:36-3.
Notwithstanding, the principles contained in Troth are the same and warrant the
same conclusion the judge reached by citing our unpublished opinion.
A-4148-17T1
5
Plaintiff also argues the slope constituted a dangerous condition, citing
N.J.S.A. 59:4-2, which renders a public entity liable for an injury if it can be
established that the public property
was in dangerous condition at the time of the injury,
that the injury was proximately caused by the
dangerous condition, [and] that the dangerous condition
created a reasonably foreseeable risk of the kind of
injury which was incurred . . . .
To establish liability via this provision, a plaintiff must also show that either a
public employee "within the scope of his employment created the dangerous
condition," N.J.S.A. 59:4-2(a), or the public entity "had actual or constructive
notice of the dangerous condition" in time "to have taken measures to protect
against the dangerous condition," N.J.S.A. 59:4-2(b). This provision further
obligates a plaintiff to show that any steps taken by the public entity to protect
against the dangerous condition were palpably unreasonable. N.J.S.A. 59:4-2.
The evidential materials offered by plaintiff supports none of these concepts.
Plaintiff provided an expert report from an engineer to support its claim
of defendants' liability. The expert, however, did not assert that the condition
of the property was dangerous, only that it could have been made safer. We note
also that the expert refers to standards for accessible design enacted pursuant to
the Americans With Disabilities Act, claiming the degree of the incline, ranging
A-4148-17T1
6
from twenty to forty percent in the area,7 was improper. Plaintiff, however, does
not claim to be disabled, and the expert did not assert that the degree of the
incline was dangerous.
Moreover, we again observe that we have been asked to consider
unimproved, not improved property. The open and obvious gentle slope leading
to this ballfield is not dangerous. Even if it were, there is no evidence to suggest
defendants had actual or constructive knowledge of this alleged dangerous
propensity. And it cannot be said that defendants' failure to do anything to
change the contour of the property or install steps or railings was palpably
unreasonable.
Affirmed.
7
We do not see anything in the report that specifies where plaintiff's injury
occurred and what the degree of the incline in that specific location might have
been.
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7