                                NOT FOR PUBLICATION WITHOUT THE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-1393-17T2

ANTHONY VICTOR,

         Plaintiff-Appellant,

v.

BOROUGH OF RED BANK, and
BOARD OF EDUCATION OF
RED BANK,

     Defendants-Respondents.
_______________________________

                   Submitted June 19, 2018 - Decided September 27, 2018

                   Before Judges Nugent and Accurso.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Monmouth County, Docket No. L-2293-15.

                   The Clancy Law Firm, PC, attorneys for appellant
                   (Donna H. Clancy, on the briefs).

                   Orlovsky, Moody, Schaaff, Conlon & Gabrysiak,
                   attorneys for respondents (Michael E. McGann, of
                   counsel and on the brief; Allison A. Krilla, on the
                   brief).

PER CURIAM
      In this Title 59 matter, plaintiff Anthony Victor appeals from the entry

of summary judgment dismissing his complaint against defendants Borough of

Red Bank and its Board of Education. Because we agree that summary

judgment was properly granted to the Borough and its Board on the undisputed

facts, we affirm.

      The essential facts are these. Plaintiff went to Red Bank's Count Basie

Field to watch his grandson's baseball game. He described the accident as

follows:

            [I]t was a beautiful Sunday. I had gotten a cup of iced
            coffee. And I normally have a fairly quick gait 'cause
            that's the way I walk. And I was walking on the
            walkway toward the game. I saw him out in the
            batting cage. And I didn't see the bench across the
            path and I went flying over it.

      The bench plaintiff tripped over was a dugout bench that the Borough

moved between fields as needed to provide players a place to sit during games

or practices. The parties agree it was a portable aluminum bench with a back

rest. The bench was approximately twenty-one feet long and held up by four

vertical supports each terminating in a perpendicular metal bar two inches in

diameter. Each of the four bars extended fifteen inches beyond the back of the

bench. The bench was behind some metal bleachers on a concrete pad next to

one of the fields, facing the same way as the bleachers. Plaintiff was walking

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                                       2
behind the bleachers across the pad to reach the batting cages and anothe r

field. He testified at deposition that he had walked almost the entire length of

the bench when his right foot tripped on the last support.

      When asked why he failed to see the bench's metal supports as he

walked along behind it, plaintiff replied, "I was walking and, as I said before,

one of the boys was in the batting cage, you know, I was headed — I was

looking straight ahead. When I walk I don't look at the ground. Just a normal

walk to the field." That led to the following exchange:

                  Q: So what did Red Bank do wrong?

                  A: Well, apparently that bench shouldn't be in
            the walkway. It's a bench I guess for people to watch
            the games. I don't know why it was in the walkway.

                  Q: But I mean it was obvious it was there,
            correct?

                  A: Correct.

                  Q: It wasn't a surprise, it wasn't dark out or
            anything, right?

                  A: Correct.

                  ....

                 Q: It was plain to your vision, it was plain and
            obvious?



                                                                         A-1393-17T2
                                        3
                  A: [Counsel], if I had seen it, I wouldn't have
            tripped over it. I didn't see it.

                  Q: I know but why didn't you see it?

                  A: Because I wasn't looking down.

      Although plaintiff referred to where he tripped as a walkway, his expert

and the Borough's witnesses described it as a concrete pad or slab adjacent to

the third base line of field number two, on which stand permanent bleachers

for spectators. Although not part of a continuous walkway, the Borough

acknowledged that some spectators cut across the pad to reach the batting

cages.

      Following discovery, defendants moved for summary judgment

contending plaintiff could not demonstrate the property was in a dangerous

condition or that the placement of the bench was palpably unreasonable.

Plaintiff opposed the motion, contending that the placement of the bench on

the pad constituted a dangerous condition and whether it was palpably

unreasonable was a jury question.

      After reviewing the applicable case law, the judge concluded the bench

itself was not dangerous and "as positioned is only potentially dangerous to

those who do not make observations." Satisfied the case did not present "a

close call," the judge concluded that

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                                        4
            [e]ven giving Mr. Victor the benefit of all reasonable
            inferences, he's not using the park with due care. He's
            not watching where he's going. It's his own testimony.
            He's walking quickly, wants to get to the ball game,
            wants to see his grandchild play. All the types of
            things you, you know, you admire about grandfathers
            being involved in their grandkids' lives. I get it
            completely. But you still have the duty to watch
            where you're going. And I don't think any reasonable
            fact finder could find otherwise.

      Plaintiff appeals, contending the trial court failed to apply the correct

legal standard and that he "met the standard of due care by walking across a

known pedestrian walkway looking straight ahead" and that "[s]ummary

judgment should have been denied based upon an issue of fact as to proximate

cause." Plaintiff argues that "leaving a dugout bench with 15" metal bars

protruding from the back of a bench that were hidden from view by pedestrians

walking normally on a pathway was a dangerous condition created by

Defendants" and because "reasonable minds can differ as to whether

Defendants acted in a palpably unreasonable manner," the question is for the

jury. We disagree.




                                                                          A-1393-17T2
                                        5
      We review summary judgment using the same standard that governs the

trial court.1 Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).

Thus, we consider "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. Corp. v. Nowell Amoroso,

P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 536 (1995)).

      N.J.S.A. 59:4-2 addresses a dangerous condition of public property and

provides as follows:

                   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



1
  Because we apply the same standard as the trial judge and review questions
of law de novo without deference to interpretive conclusions we believe
mistaken, Nicholas v. Mynster, 213 N.J. 463, 478 (2013), Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we need not
address plaintiff's argument that the trial judge misapplied the summary
judgment standard.
                                                                          A-1393-17T2
                                         6
                   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 the failure to
            take such action was not palpably unreasonable.

Thus "to impose liability on a public entity pursuant to that section, a plaintiff

must establish the existence of a 'dangerous condition,' that the condition

proximately caused the injury, that it 'created a reasonably foreseeable risk of

the kind of injury which was incurred,' that either the dangerous condition was

caused by a negligent employee or the entity knew about the condition, and

that the entity's conduct was 'palpably unreasonable.'" Vincitore v. N.J. Sports

& Exposition Auth., 169 N.J. 119, 125 (2001).

      As defendants did not dispute that plaintiff was injured by tripping over

the bench the Borough placed behind the bleachers on the concrete pad, the

focus on the motion was whether the concrete pad, where spectators were

known to walk, was in a dangerous condition and, if so, whether the failure to

correct it was palpably unreasonable. The Tort Claims Act, N.J.S.A. 59:1-1 to

12-3, defines "dangerous condition" as "a condition of property that creates a



                                                                           A-1393-17T2
                                         7
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." N.J.S.A. 59:4-1(a).

        As we have elsewhere explained, "the phrase 'used with due care' does

not refer to the actual activities of the parties," but to "the condition of the

property itself." Daniel v. State, Dep't of Transp., 239 N.J. Super. 563, 586

(App. Div. 1990). "In deciding whether a dangerous condition exists," the

question is "whether the property creates a substantial risk of injury 'to persons

generally, who would use the property with due care in a foreseeable manner.'"

Id. at 587 (quoting Holmes v. Oakland City, 67 Cal. Rptr. 197, 203 (Ct. App.

1968)). Thus a "plaintiff must show 'that the condition was one that created a

hazard to a person who foreseeably would use the property . . . with due care.'"

Ibid.

        Applying that standard makes clear the trial court was correct to find

plaintiff failed to establish the Borough's placement of the bench behind the

bleachers rendered the concrete pad in a dangerous condition to a person who

foreseeably would walk behind the bleachers to access the batting cages or one

of the other fields. As plaintiff testified, there was nothing obscuring his view

of either the bench or the bleachers. He tripped over one of the bench supports




                                                                            A-1393-17T2
                                          8
after walking almost the entire length of the bench only because he "wasn't

looking down."2

      Because "it would be folly to impose a burden on a public entity to

protect individuals from every conceivable risk attendant to the use of its

property," the Legislature has limited liability from a dangerous condition to

those instances where "the property poses a substantial risk of injury when it is

used in a reasonably prudent manner in a foreseeable way." Daniel, 239 N.J.

Super. at 587. Because, as the trial judge found, the bench "as positioned

[was] only potentially dangerous to those who [did] not make observations," it

did not pose a substantial risk of injury to those persons crossing the pad "in a

reasonably prudent manner in a foreseeable way." Ibid.

      Even were plaintiff able to somehow establish that placement of the

bench behind the bleachers constituted a dangerous condition, he has provided

no proof that the Borough's placement of the bench or failure to move it was



2
  We note the obvious nature of the bench and its supports would make it
difficult for plaintiff to recover against an owner without statutory immunities,
that is, had he been a guest on private property when the injury occurred. See
Tighe v. Peterson, 356 N.J. Super. 322, 326 (App. Div.) ("Where a guest is
aware of the dangerous condition or by a reasonable use of his [faculties]
would observe it, the host is not liable.") (internal quotation marks omitted)
(quoting Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div. 1997)), aff'd
o.b., 175 N.J. 240 (2002).
                                                                          A-1393-17T2
                                        9
palpably unreasonable, that is "manifest and obvious that no prudent person

would approve of its course of action or inaction," Kolitch v. Lindedahl, 100

N.J. 485, 493 (1985) (citation omitted), and certainly none sufficient to require

submission to a jury, see Brill, 142 N.J. at 536.

      Affirmed.




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