                NOT FOR PUBLICATION WITHOUT THE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
