                        NOT FOR PUBLICATION WITHOUT THE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-4207-15T1

AMANDA GAUGHRAN and
MICHAEL GAUGHRAN, her
husband, per quod,

              Plaintiffs-Appellants,

v.

COUNTY OF WARREN, WARREN
COUNTY COUNCIL, RICH MACGUIRE,
WASHINGTON CELEBRATES
AMERICA COMMITTEE, WASHINGTON
ORANGE CRATE DERBY and RALPH
BANGHART,

              Defendants,

and

WASHINGTON TOWNSHIP,
WASHINGTON BOROUGH and
WASHINGTON TOWNSHIP POLICE
DEPARTMENT,

          Defendants-Respondents.
_________________________________

              Submitted May 31, 2017 - Decided August 7, 2017

              Before Judges Leone, Vernoia and Moynihan.

              On appeal from the Superior Court of New
              Jersey, Law Division, Warren County,
              Docket No. L-0242-13.
          Arseneault & Fassett, LLP, attorneys for
          appellants (Angela M. DeFilippo, on the brief).

          Keenan & Doris, LLC, attorneys for respondents
          Washington Township and Washington Township
          Police Department (Thomas A. Keenan, of counsel;
          Bernadette M. Peslak, on the brief).

          Florio, Perrucci, Steinhardt & Fader, LLC,
          attorneys for respondent Washington Borough
          (Mark R. Peck, of counsel and on the brief).

PER CURIAM

     Plaintiffs, Amanda Gaughran and Michael Gaughran,1 appeal

from the motion judge's orders granting summary judgment in favor

of defendants Washington Borough (Borough), Washington Township

(Township) and Washington Township Police Department.2   Applying

the applicable provisions of the Tort Claims Act (TCA), N.J.S.A.

59:1-1 to 12-3, we affirm.

                               I.

     The facts we consider are derived from the summary judgment

record, including the pleadings, deposition transcripts, answers

to interrogatories and certifications.     We view the competent

evidence in the light most favorable to plaintiff.   See R. 4:46-

2(c).


1
  Amanda Gaughran filed suit as the injured plaintiff; Michael
Gaughran filed a concomitant per quod claim. We refer, herein,
to Amanda as "plaintiff" for ease of reference.
2
  The judge entered one order in favor of the Borough, and a
separate order in favor of the Township and the police department.

                                2                            A-4207-15T1
     On July 4, 2011, plaintiff was injured in an accident while

attending the Orange Crate Derby, an annual event during which

youths drive wheeled crates down a course on Broad Street in

Washington   Borough.      At    the   time      of   the   accident,    Kristine

Blanchard was the Borough clerk and registrar, and Richard Phelan

was the Borough manager.          They both related the Borough road

department maintained Broad Street, checked it for cracks and

potholes, swept it before the event, and supplied barricades to

prevent cars from entering the road during the event.                   Blanchard

stated Washington Celebrates America (Committee), a non-profit

entity, was responsible for other preparations and operations

related to the derby.           She said the Committee sectioned off

portions of the race course with hay bales before the derby.

Phelan   indicated   the   Committee       was   responsible     for    directing

spectators to areas from which they could watch the event, and for

crowd control.

     Rich Macguire,3 the Committee chairperson on July 4, 2011,

helped coordinate the derby.           The Committee obtained permission

from the Borough to conduct the event.

     Macguire admitted the Committee, alone, was responsible for

the safety of spectators during the derby.                     Although police


3
 Macguire is also referred to as Rich Maguire in various documents
in the record.

                                       3                                  A-4207-15T1
prevented vehicular access to the race course, he testified police

did   not   have   an   active   role   in    crowd   control    or   spectator

protection, but did say police had authority to regulate crowds,

prevent     pedestrians   on     the   race   course,   and     dictate     where

spectators sat.     He represented, however, police were never called

upon to undertake those responsibilities because the Committee

never had a problem accomplishing those tasks without police

assistance.     He said he would call police only if someone refused

to comply with rules set by the Committee; that need did not arise

on July 4, 2011.

      As part of their safety protocol, Macguire said the Committee

placed hay bales along the course.            When asked whether spectators

were told to sit behind the hay bales, he stated:

             Yes, and that's announced before every heat.

                                   . . . .

             I'm going to say 95 percent of Broad Street
             has curbing. There's a couple where like the
             aprons come into people's driveways, that is
             heavily blocked with hay bales. Telephone
             poles,   anything   that   could   be   really
             dangerous, that is guarded with hay bales, but
             there are people that tend to come in the
             street in between races. . . . And if there
             is anybody on the street or even just in a
             dangerous area, they don't have to be on the
             street, they could be behind the hay bales.

                                   . . . .



                                        4                                 A-4207-15T1
          We want them off the hay bales. And Mark will
          make the announcement or somebody, if they're
          close enough, will say, "get off the hay
          bales" before each race.


     Plaintiff was seated behind hay bales when, she alleges, a

racer's crate encountered a defect in the road.         Lisa Groff

described the defect as a "manhole in the road with an uneven

lift, which created a pothole situation in the road."   She stated

the "pothole" had been there for fifteen years.   The crate veered

off the race course, and hit the hay bale behind which plaintiff

was located.   Plaintiff was struck by the hay bale, toppled and

was injured.

     George Duckworth was a sergeant with the Township police

department on the date of the accident.   Duckworth testified, as

did Macguire, Duckworth's only duty at the derby was to operate a

radar gun to gauge the speed of the crates.    Duckworth admitted

he could leave his position for "police duties," if the Committee

needed him to remove someone who was causing a problem, or someone

called for police assistance.

                                II.

     We abide by our familiar standard of review that mandates

summary judgment be granted if the court determines "there is no

genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of

                                 5                         A-4207-15T1
law."    R. 4:46-2(c).    We consider whether the competent evidential

materials presented, when viewed in the light most favorable to

the     non-moving   party    in    consideration     of     the       applicable

evidentiary    standard,     are   sufficient    to   permit       a     rational

factfinder to resolve the alleged disputed issue in favor of the

non-moving party.        Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995).        We review the trial court's decision in

these matters de novo, and afford the trial court ruling no special

deference.    Templo Fuente De Vida Corp. v. Nat. Union Fire Ins.

Co., 224 N.J. 189, 199 (2016).

                                     III.

      The intent of the TCA is to "reestablish a system in which

immunity is the rule, and liability the exception."                Bombace v.

City of Newark, 125 N.J. 361, 372 (1991).                   Immunity is the

legislation's "dominant consideration."         Kolitch v. Lindedahl, 100

N.J. 485, 498 (1985) (O'Hern, J., concurring).             The State's public

policy is that public entities, such as a municipality, "shall

only be liable for their negligence within the limitations of [the

TCA] and in accordance with the fair and uniform principles

established [in the TCA]."         N.J.S.A. 59:1-2.    "In other words, a

public entity is 'immune from tort liability unless there is a

specific statutory provision' that makes it answerable for a

negligent act or omission."         Polzo v. County of Essex, 209 N.J.

                                      6                                   A-4207-15T1
51, 65 (2012) [Polzo II] (quoting Kahrar v. Borough of Wallington,

171 N.J. 3, 10 (2002)).

                                   IV.

     Plaintiff alleges the Township and its police department are

not entitled to protection under the TCA, specifically N.J.S.A.

59:5-4, because police negligently performed their ministerial

duties during the derby.     The pertinent part of the TCA provides:

"Neither a public entity nor a public employee is liable for

failure   to   provide   police   protection   service   or,   if    police

protection service is provided, for failure to provide sufficient

police protection service."       N.J.S.A. 59:5-4.   We attributed the

legislative aim of another section of the TCA to this statute in

Suarez v. Dosky, 171 N.J. Super. 1, 9 (App. Div. 1979), certif.

denied, 82 N.J. 300 (1980):

           [W]hat the Legislature is seeking to protect
           in N.J.S.A. 59:5-1 is the Government's
           essential right and power to allocate its
           resources in accordance with its conception
           of how the public interest will be best
           served, an exercise of political power which
           should be insulated from interference by judge
           or jury in a tort action. We regard the same
           governmental imperatives as supporting the
           adoption of N.J.S.A. 59:5-4 . . . .

We held "N.J.S.A. 59:5-4 precludes suits against municipalities

and their responsible officers based upon contentions that damage

occurred from the absence of a police force or from the presence


                                    7                               A-4207-15T1
of an inadequate one."       Ibid.     The protections are not absolute;

we recognized:

           [a]lthough a police officer may not be liable
           for failing to respond (if, for example, he
           was performing some other official duty), if
           he does respond he will be subject to
           liability for negligence in the performance
           of his ministerial duties. N.J.S.A. 59:5-4
           does not insulate police officers from
           unfortunate results of their negligently
           executed ministerial duties.

           [Id. at 9-10.]

      Plaintiff   posits     the    Township   and   police   department    are

liable because police, knowing that crates crash into hay bales,

and that curbs — not hay bales — provide protection to spectators

from crates that veer toward them, did not advise plaintiff that

she was sitting in a "danger zone, unprotected by the curb."                She

also argues that Duckworth "and other police had a duty to make

sure spectators were not seated in an area behind hay bales where

there were no curbs."

      Plaintiff cites to five sources of proofs she alleges support

one   or   both   theories     of    liability:      Duckworth's    deposition

testimony; answers to interrogatories by Blanchard;4 a 2011 Orange

Crate Derby brochure; Macguire's deposition testimony; and an

expert report by Dr. Leonard Lucenko.


4
   We also consider the deposition of                  Blanchard,    and    her
certification submitted by the Township.

                                       8                               A-4207-15T1
     The 2011 Orange Crate Derby brochure cautions:       "Safety note:

Broad Street will be lined with bales of hay.        All spectators and

non-participants MUST stay off the street and behind the hay bales.

THE RACE WILL BE STOPPED UNTIL THIS REQUIREMENT IS COMPLIED WITH."

     Blanchard   provided   in    answers   to   interrogatories,     "Upon

information and belief [the Committee] and the Washington Township

Police Department determines where spectators/pedestrians were to

sit and/or stand to observe the soapbox derby race."            Blanchard

was asked during her deposition what steps the Borough took

regarding spectators "who are not allowed on the road during derby

time to insure their safety."        She answered, the Borough relies

on the Committee "to provide for the safety of any spectators, and

we also rely on the Washington Township Police Department to

protect any spectators."     She added there was no written document

indicating such reliance.5       A follow-up colloquy ensued:

          Q.   When you say, when the Borough relies on
          the Washington Celebrates America nonprofit
          organization and the Washington Township
          Police Department to ensure the safety of the
          pedestrians during the derby time, what does
          the Borough believe that Washington Township
          Police Department and the not-for-profit does
          to ensure the safety of the spectators when
          the derby is taking place on their road?



5
  There was an agreement between the Committee and the Township
regarding police services, to which the Borough was not a party.
See infra note 6.

                                     9                              A-4207-15T1
                                   . . . .

            A.    The  Washington   Celebrates    America
            organization sections off portions of the
            sidewalk with hay bales. That is where the
            spectators are supposed to be standing.
            Washington   Township    Police    Department
            monitors where spectators are standing, and
            the Washington emergency squad is also on
            hand.

      Blanchard acknowledged her answer was not based on any writing

or discussions in which she took part in her official capacity,

but   on   knowledge   gained   from   seeing   past   derbies.     In    a

certification submitted through the Township's counsel, she said

she "just assumed that the Washington Township Police Department

was responsible for spectator safety" at the derby, and that she

"never possessed any first-hand knowledge of the statements that

[she] made in this case regarding Washington Township Police

Department's being responsible for spectator safety."

      In determining whether summary judgment should be granted,

we are not "to weigh the evidence and determine the truth of the

matter," and must view the evidence "in the light most favorable"

to plaintiff, Brill, supra, 142 N.J. at 540; but we must consider

only competent evidence. Polzo v. County. of Essex, 196 N.J. 569,

586 (2008) [Polzo I].     "Competent opposition requires 'competent

evidential   material'   beyond   mere   'speculation'    and   'fanciful

arguments.'"    Cortez v. Gindhart, 435 N.J. Super. 589, 604 (App.


                                  10                              A-4207-15T1
Div. 2014) (quoting Hoffman v. Asseenontv Com, Inc., 404 N.J.

Super. 415, 425-26 (App. Div. 2009)).          "That the trier of fact

makes determinations as to credibility 'does not require a court

to turn a blind eye to the weight of the evidence; the "opponent

must do more than simply show that there is some metaphysical

doubt as to the material facts."'" O'Laughlin v. Nat'l. Comm.

Bank, 338 N.J. Super. 592, 606 (App. Div. 2001) (quoting Big Apple

BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d

Cir. 1992), cert. denied, 507 U.S. 912, 113 S. Ct. 1262, 122 L.

Ed. 2d 659 (1993)).

     Blanchard's interrogatory answer, indicating the Township

police told spectators where to sit or stand during the 2011 derby,

is not competent evidence.      It is either hearsay or a baseless

assumption; it is not based on personal knowledge of circumstances

on the day of the accident.     Blanchard was not a Township police

employee but the Borough clerk, and the Borough was not a party

to the agreement between the Committee and the Township police

department.   Likewise, any evidence introduced through Blanchard

that the Township police were responsible to protect the safety

of spectators on July 4, 2011, is hearsay or assumption.           The only

personal   knowledge   Blanchard   possessed     was   gained     from   her

observations of past derbies.      None   of    the    evidence    offered

through Blanchard regarding police actions or duties during the

                                   11                               A-4207-15T1
derby at which plaintiff was injured, therefore, is competent.

See James Talcott, Inc. v. Shulman, 82 N.J. Super. 438, 443 (App.

Div. 1964) (holding evidence based on "information and belief"

without information supplied by "persons having actual knowledge

of the facts, [is] insufficient to withstand a motion for summary

judgment").       That evidence does not raise a genuine material issue

of fact and does not preclude the grant of summary judgment.

      In    a    report     submitted     by   plaintiff   in    support   of   her

contention that police failed to protect her safety, her expert

opined:

                Since   the    Washington   Township    Police
                Department agreed to assist with crowd and
                traffic control, in my professional opinion
                as a professor of recreation and a recreation
                risk management and safety expert, it was
                incumbent upon the Washington Township Police
                Department to perform this service in a proper
                manner, especially since, as Sergeant George
                Duckworth testified, "Safety is always a
                police officer's duty." . . . .However, the
                case   documentation   indicates    that   the
                Washington Township Police Department was
                negligent in its performance of the service
                it provided with respect to the Orange Crate
                Derby on July 4, 2011.

      The expert points to no standard, only Duckworth's statement

regarding general police duties, to buttress his opinion.                    It is

a   net    opinion;    it    does   not    offer   the   "'why   and   wherefore'

supporting his . . . analysis."            Henebama v. SJTA, 430 N.J. Super.

485, 508 (App. Div. 2013) (quoting Pomerantz Paper Corp. v. New

                                          12                               A-4207-15T1
Cmty. Corp., 207 N.J. 344, 372 (2011)).              The expert's report is

not competent evidence, Polzo I, supra, 196 N.J. at 586, that

would sustain plaintiff's opposition to the grant of summary

judgment.   Id. at 584 n.5.

     Even accepting the evidence offered through Blanchard and the

expert as competent and uncontested, none of the evidence proffered

by plaintiff links any police officer to a ministerial duty

relating to the accident that resulted in plaintiff's injury, or

even places a police officer at the scene prior to or during the

accident.

     Considering that the Committee entered into an agreement with

the Township to provide police services6 during the derby, the

only proofs that establish the activity of any police officer

during    the   derby    are     Duckworth's    deposition,        Macguire's

deposition, and answers to Form C interrogatories by the Township

police department.      They inform us that Duckworth was tasked to

operate   the   radar   gun    that   gauged   the    speed   of   the     derby

contestants.    He did not know who placed the hay bales along the

race course; they were in place before he began operating the


6
  A copy of the agreement was provided in plaintiff's appendix;
paragraph one reads, "The Township of Washington shall provide the
services of _____ uniformed police officer(s) to [the Committee].
A handwritten note was made over the blank: "see attached coverage
sheet" appears above an arrow drawn just above the line.       The
"coverage sheet" was not provided to us.

                                      13                                 A-4207-15T1
radar.   He was located one-hundred to one-hundred and fifty yards

from plaintiff's location, above the finish line; he did not see

where plaintiff was seated before the accident.    He did not know

if Macguire, as Macguire alleged, told plaintiff to move from

where she was seated prior to the accident.    He admitted that he

could have left his post if called to regular police duties.       He

cited examples of such duties: if he was asked to remove someone

causing a problem or received a "call for police assistance."

     Duckworth testified about other police duties:     he admitted

police put up plastic or wooden barricades to keep vehicular

traffic off the race course.     He believed police were "aware of

the event and [] provide[d] crowd and traffic control assistance,"

and agreed that Township police patrolled "the area in the Borough

of Washington where the race was held."7       He elaborated that

traffic control was to assure no vehicular traffic interfered with

the derby, and that crowd control meant "if anybody caused a

problem, then to try to aid in that nobody interfered with the

race course or was walking into the race area."       Police duties

also included ensuring that people sat behind the hay bales, "if

asked by the race organizers."   Duckworth denied, and there is no



7
  Township police patrolled Washington Borough under a shared
services agreement.  The Borough does not have its own police
department.

                                 14                         A-4207-15T1
evidence that, the police were asked to patrol the race course to

make sure spectators were safe.

    A comment cited by plaintiff as evidence of defendants'

responsibilities, that "[s]afety is always a police officer's

duty," was made during the following exchange during Duckworth's

deposition:

         Q.   Okay.   Who ensured the safety of the
         spectators so that they would not be seated
         or walk on the roadway where the race was?
         A. The race organizers.
         Q. And who was their safety -- who patrolled
         the -- from the race organizers?
         A. Don't know.
         Q. So are you saying that if a police officer
         was in the area and saw a person set up a
         chair on the side of the hay bails [sic] that
         was in the race area, that the police officer
         would not say anything?
         A. I would say something.
         Q. Okay. You would?
         A. Yes.
         Q. But was it within your duty at the time
         to say something?
         A. Safety is always a police officer's duty.
         Q. Okay. So it's fair to say that if there
         were police officers in the area and someone
         was not seated behind the hay bail [sic], that
         a police officer would then act on it and ask
         the person to move?
         A. Correct.

    Duckworth was responding to hypothetical questions posed by

plaintiff's counsel.   He was not commenting on what actually

happened during the derby.   Notably, he was not asked to comment




                               15                         A-4207-15T1
on the situation here, where plaintiff was seated behind a hay

bale, not in the race area.

       Moreover,    the    adoption   of       plaintiff's      argument,      that

Duckworth's    statement     evidenced     a    duty   that    was   negligently

performed by the police, would lead to the unintended and absurd

result of denying police immunity under N.J.S.A. 59:4-5 in every

case in which they were involved.          Police officers "perform a wide

range of social services, such as aiding those in danger of harm,

preserving property, and creating and maintaining a feeling of

security in the community."           State v. Bogan, 200 N.J. 61, 73

(2009).    Thus, safety is every police officer's duty — all the

time.

       Plaintiff would impose a duty on all officers to warn of

dangerous conditions even in situations when police are not tasked

with any duty to inspect a location, or when their assistance is

not requested, or when they have not responded to the location of

the dangerous condition.          That interpretation flies in the face

of the general principles of the TCA: that immunity is the Act's

"dominant consideration," Kolitch, supra, 100 N.J. at 498, and

that    "immunity   from   tort    liability     is    the    general   rule   and

liability is the exception."          Coyne v. DOT, 182 N.J. 481, 488

(2005) (internal citations omitted).



                                      16                                  A-4207-15T1
     The only evidence linking police to plaintiff and the accident

scene is the answer to question two of the Form C interrogatories

submitted by the Township police department.8             Although Duckworth

denied ever being at the accident scene before it was cleared, the

answer provided that Duckworth observed the accident scene and

plaintiff after the accident.          The interrogatory answer does not

connect Duckworth to plaintiff prior to, or during, the accident.

Even if true, it places Duckworth at the scene after plaintiff was

injured.

     In    support    of   her    contention    that    the   Township    police

"negligently       executed    their   duties   by     directing   spectators,

including [plaintiff], to sit within [an] unsafe, unprotected

area," plaintiff relies on the holdings in Suarez, supra, and

Aversano v. Palisades Interstate Parkway Comm., 363 N.J. Super.

266 (App. Div. 2004), aff'd as modified, 180 N.J. 329 (2004).9

Those     cases,    however,     involved   actual     police   responses       to

situations where citizens were imperiled.



8
  This evidence was not cited by plaintiff as supporting her
arguments on appeal, but it was mentioned in Duckworth's
deposition; thus we examine it.
9
 The Supreme Court remanded the case to the trial court to consider
discretionary act immunity under N.J.S.A. 59:2-3(a) or N.J.S.A.
59:3-2(a). The Court considered only immunity for incidents on
unimproved property; it did not analyze immunity for police actions
under the TCA. Aversano, supra, 180 N.J. at 332.

                                       17                                A-4207-15T1
       In Suarez, motorists stranded on Route 80 were killed as they

walked along the highway after state troopers, who responded to

the scene of the motorists' minor accident, refused their request

to escort them to a safe place off the highway, or call a taxi.

Suarez, supra, 171 N.J. Super. at 5-6.         Police in Aversano,

responding to a scene after a young man fell off a 300-foot cliff,

did not call a rescue squad, and decided to execute a "recovery

operation" instead of a more urgent "rescue operation," thinking

the man could not have survived the fall; the man was alive when

police reached him.   Aversano, supra, 180 N.J. at 330.   Plaintiffs

attributed his death to the lost chance of survival caused by the

negligent failure of police to initiate a rescue effort.     Id. at

331.

       Those cases are inapplicable here.    "[T]his is not a case

like Suarez" or Aversano "where police who were on the scene

behaved negligently."    Sczyrek v. Cty. of Essex, 324 N.J. Super.

235, 242 (App. Div. 1999), certif. denied, 163 N.J. 75 (2000).

There is no competent proof police had any interaction with

plaintiff, or undertook any duty related to plaintiff's safety.

There is no evidence that police directed plaintiff to sit in an

area behind hay bales that was unprotected by curbing.       In her

brief, plaintiff admits "[s]he walked on Broad Street until she

saw an open spot where [she and her sons] could sit."

                                 18                          A-4207-15T1
     Plaintiff has not provided any evidence that police, at any

time, undertook responsibility to tell her or other spectators

where to sit, or to ensure that she or other spectators sat behind

curbed areas.   Police patrolled the general area and prevented

entry by vehicular traffic.   Duckworth operated the radar.     But

police did nothing in relation to plaintiff's accident that would

be considered a ministerial duty, the negligent execution of which

would expose them to liability.     They had no interaction with

plaintiff, and did not undertake any responsibility regarding her

seat location, so they and the Township are entitled to immunity.

We do not think that plaintiff's proposed limitless duty on police

to provide safety is the type of ministerial duty for which the

police could be liable under Suarez. See Rochinsky v. State, Dep't

of Transp., 110 N.J. 399, 412 (1988) (noting that N.J.S.A. 59:5-4

has "been found to cover ministerial as well as discretionary

acts," citing Wuethrich v. Delia, 155 N.J. Super. 324 (App. Div.),

certif. denied, 77 N.J. 486 (1978)); Pico v. State, 116 N.J. 55,

62 (1989) (noting that general "liability [for ministerial acts]

yields to a grant of immunity" under N.J.S.A. 59:5-4, citing

Wuethrich, supra, 155 N.J. Super. at 326); see also Parsons v.

Mullica Tp. Bd. Of Educ., 440 N.J. Super. 79, 96 & n.8 (App. Div.

2015), aff'd, 226 N.J. 297 (2016). A claim of negligence does "not

diminish the legislative immunity granted to the municipality 'for

                               19                          A-4207-15T1
failure to provide police protection,' under N.J.S.A. 59:5-4."

Weiss v. N.J. Transit, 128 N.J. 376, 381 (1992) (quoting Henschke

v. Borough of Clayton, 251 N.J. Super 393, 400 (App. Div. 1991)).

"N.J.S.A. 59:5-4 applies when the liability claim is based on

alleged 'failure to provide police protection,' [even where] that

failure allegedly stems from carelessness or negligence of rank

and   file    employees,   and   not    from   a   governmental    policy

determination." Sczyrek, supra, 324 N.J. Super. at 242, 245 (App.

Div. 1999).

      The Township and police department do not face liability for

their decision not to provide police protection to the spectators,

or any failure to provide a sufficient level of protection.           That

was a policy decision that is afforded immunity under the TCA.

Id. at 239-40, 241-42.

                                   V.

      A provision of the TCA limits public entity liability for

injuries resulting from conditions on public lands or in public

facilities.     The pertinent part of N.J.S.A. 59:4-2 provides:

             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 . . . :

                                  20                              A-4207-15T1
                                 . . . .

           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.10

     Plaintiff   contends    N.J.S.A.   59:4-2    does     not    afford   the

Borough immunity because the Borough failed to properly inspect

the road prior to the race, and failed to notice and correct the

defect that, according to the certification of Lisa Groff, had

been there for fifteen years.

     In Polzo II, our Supreme Court set forth the elements a

plaintiff must prove to recover from the Borough. First, plaintiff

must show that the road defect was a "dangerous condition [that]

created a reasonably foreseeable risk of the kind of injury which

was incurred." Polzo II, supra, 209 N.J. at 66 (quoting N.J.S.A.

59:4-2) (alteration in original).          "Only if plaintiff can prove

this element do we turn to the next step: . . . whether the 'public

entity   had   actual   or   constructive    notice   of    the    dangerous


10
  Plaintiff does not allege that the Borough created the dangerous
condition; N.J.S.A. 59:4-2a is, therefore, inapplicable to this
case.

                                   21                                 A-4207-15T1
condition' within 'a sufficient time' before the accident that it

could 'have taken measures to protect against [it].'"          Ibid.

(quoting N.J.S.A. 59:4-2b). "Even if plaintiff has met all of

these elements, the public entity still will not be liable unless

the public entity's failure to protect against the dangerous

condition can be deemed 'palpably unreasonable.'"    Ibid. (quoting

N.J.S.A. 59:4-2).

     As was the case in Polzo II, we do not find the Borough was

on actual or constructive notice of a dangerous condition that

created a reasonably foreseeable risk of injury, or that the

Borough's failure to repair the defect was palpably unreasonable.

                                  A.

     The TCA defines actual and constructive notice, in the context

of N.J.S.A. 59:4-2b, in N.J.S.A. 59:4-3:

          a. A     public entity shall be deemed to have
          actual    notice of a dangerous condition . . .
          if it    had actual knowledge of the existence
          of the   condition and knew or should have known
          of its   dangerous character.

          b. A public entity shall be deemed to have
          constructive notice of a dangerous condition
          . . . only if the plaintiff establishes that
          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.




                                 22                          A-4207-15T1
     Phelan, the Borough manager, admitted in depositions that

Borough employees "swept" the course with a street sweeping vehicle

prior to the derby, and that the road department checked for

potholes that could affect the crates.     There is no evidence any

Borough employee found the defect alleged by plaintiff during the

inspection.   In fact, plaintiff has not shown any evidence that

the Borough had actual knowledge of the defect.

     We also find plaintiff failed to show the defect "was of such

obvious nature that the [Borough], in the exercise of due care,

should have discovered the condition and its dangerous character."

N.J.S.A. 59:4-3b.    Plaintiff has proffered no evidence about the

road defect, save for Lisa Groff's description of "a manhole in

the road with an uneven lift, which created a pothole situation

in the road."11   Although she certified that the defect existed for

fifteen years prior to plaintiff's accident, there is no evidence

anyone reported it to the Borough, or that there were any accidents

or other incidents that would have put the Borough on notice of



11
  The parties have not provided any description other than that
given by Goff. We reviewed the appendices and do not find evidence
that informs us of any other description. Cf. Polzo II, supra, 209
N.J. at 77 (describing the defect as "barely one-and-one-half
inches in depth on the roadway's shoulder"); Atalese v. Long Beach
Twp., 365 N.J. Super. 1, 3, 4 (App. Div. 2003) (describing the
condition as a depression of pavement in a bike lane, approximately
three-quarters of an inch deep "for a distance of approximately
one block").

                                 23                          A-4207-15T1
the defect.      Absent a description of the defect that would show

that Borough employees should have discovered an obvious defect,

there is a failure of proof by plaintiff.           Polzo II, supra, 209

N.J. at 74-75.

       Likewise, plaintiff failed to prove the Borough knew, or

should    have   known,   of   the   defect's   dangerous     character.      A

dangerous condition is "a condition of the 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."      N.J.S.A.   59:4-1a.    "[T]o   be    considered     a

'substantial risk of injury' a condition of property cannot be

minor, trivial, or insignificant." Atalese, supra, 365 N.J. Super.

at 5.

       The Borough obviously knew the derby would be run on the

road.     Its employees inspected the road in preparation for the

derby that had been held annually for a number of years.                    The

Borough manager stated, in his deposition, the Borough governing

body approved the event.         It was foreseeable that racer crates

would use the road.       Thus, Borough employees, when they inspected

the road, should have been looking for defects that would pose a




                                      24                             A-4207-15T1
danger to crates.12   But plaintiff has not shown the defect, even

if it did exist for fifteen years, was so obvious that the workers,

exercising due care, should have discovered it and its dangerous

character.   In those fifteen years, there is no proof that the

defect had any impact on any person or vehicle, including past

crate racers and those racing on the date of the accident.     There

is no evidence the Borough was on constructive notice of the

defect.

                                     B.

     We also find plaintiff did not prove the Borough's failure

to repair the road defect was palpably unreasonable.    That proof

is required under the TCA because:

          even   if   the   public   entity's   property
          constituted a "dangerous condition;" even if
          that dangerous condition proximately caused
          the injury alleged; even if it was reasonably
          foreseeable that the dangerous condition could
          cause the kind of injury claimed to have been
          suffered; and even if the public entity was
          on notice of that dangerous condition; no

12
  We do not agree with the Borough's argument that the dangerous
condition here related to the use of the property for orange crate
racing, and not the property itself, thereby immunizing the Borough
from liability. See Levin v. County of Salem, 133 N.J. 35 (1993)
(holding that an injury sustained by jumping off a bridge was
caused by diving into shallow water; the bridge was not the
dangerous condition). Here, the road defect is alleged to have
propelled the crate into hay bales in front of plaintiff, toppling
her and causing injury. We examine the defect in the roadway, not
the use of the roadway by the racers, in determining whether there
was a dangerous condition.


                                25                           A-4207-15T1
          liability will 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."

          [Polzo I, supra, 196 N.J. at 585 (quoting
          N.J.S.A. 59:4-2).]

     Palpably   unreasonable   behavior   is   "patently   unacceptable

under any given circumstances."    Kolitch, supra, 100 N.J. at 493.

"[F]or a public entity to have acted or failed to act in a manner

that is palpably unreasonable, 'it must be manifest and obvious

that no prudent person would approve of its course of action or

inaction.'" Ibid.   (quoting Polyard v. Terry, 148 N.J. Super. 202,

216 (Law Div. 1977), rev'd on other grounds, 160 N.J. Super. 497

(App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979)).            Plaintiff

bears the burden of proving the Borough's inaction was palpably

unreasonable.   Ibid.   "Although ordinarily the question of whether

a public entity acted in a palpably unreasonable manner is a matter

for the jury, in appropriate circumstances, the issue is ripe for

a court to decide on summary judgement."         Polzo II, supra, 209

N.J. at 75 n.12.

     Polzo II is instructive in our review of this issue.            Our

Supreme Court noted N.J.S.A. 59:4-2 is premised on the difficulty

public entities face in caring for vast tracts of public property.

Id. at 76-77. The Court credited the public entity's right to

                                 26                             A-4207-15T1
choose among competing demands, in the face of limited resources,

in determining whether it should act or not to protect against

dangerous     conditions,           unless     its     decision   is    palpably

unreasonable.       Ibid.

     We cannot conclude plaintiff met her burden with regard to

this issue.        We note that plaintiff's expert opined the Borough

was negligent in inspecting and maintaining the roadway, which

negligence was "further enhanced" by the Borough's repair of the

defect after the accident.            He cited only to a phrase in a text,

titled, "Legal Liability and Risk Management for Public and Private

Entities," in support of his conclusion: "There is a responsibility

to have a maintenance program with an inspection system to identify

foreseeable hazards and those presently existing . . . ."                Without

further discussion, the expert wrote, "As a professor of recreation

and a recreation risk management and safety expert, it is my

opinion     that    the     above    concept     has    applicability   to    all

organizations and entities, both public and private."

     The expert did not explain the basis for his opinion that the

Borough's repair of the defect "enhanced" its negligence.                 He did

not cite to any standard that provides for a proper road inspection

program by a municipality.            He offered a net opinion, just as he

did when analyzing the liability of the Township and police force.

Polzo I, supra, 196 N.J. at 582-84.                  Like his opinion regarding

                                        27                               A-4207-15T1
the Township's liability, his report does not provide competent

evidence, id. at 586, and it does not sustain plaintiff's burden

of proof.   Id. at 584 n.5.

      The defect was not apparent to the Borough employees when

they inspected the race course.        No complaints were ever received

about the defect, even from plaintiff's witness who noticed it

fifteen years prior to the accident.           No previous accidents or

injuries were caused by the defect.        There is no evidence that any

racer in any derby, including the racer driving the crate that hit

the bales in front of plaintiff's location, was injured by the

defect. Polzo II, supra, 209 N.J. at 77 (citing to Justice Stein's

concurrence in Garrison v. Twp. of Middletown, 154 N.J. 282, 311

(1998), which recognized that the lack of prior complaints, reports

or injuries were factors in determining this issue).

      The Court in Polzo II observed that roadways are "ordinarily

used for vehicular travel." Id. at 70 (quoting N.J.S.A. 39:1-1).

The Court opined, notwithstanding the acknowledged use of roadways

by bicyclists, they "generally are built and maintained for cars,

trucks and motorcycles." Id. at 71.         Recognizing that bicyclists

face dangers on roadways, including potholes and depressions, that

do not present hazards to motor vehicles — the general, intended

users of roadways — the Court found "[p]ublic entities do not have

the   ability   or   resources   to   remove   all   dangers   peculiar    to

                                      28                            A-4207-15T1
bicycles.    Roadways cannot possibly be maintained completely risk-

free for bicyclists."     Ibid.

     The same can be said of the crates racing in the derby.            That

event is held once a year.      Although the use of the roadway by the

crates each year is foreseeable, crate racers are not the general,

intended users of the roadway.            As such, under the Polzo II

rationale,    the   Borough   may   reasonably   give   less   priority    to

smoothing over every bump in the road crate racers may encounter.

Id. at 77.

     Even if the Borough had notice of the defect and its dangerous

condition, plaintiff has not met "the heavy burden of establishing"

that it was palpably unreasonable, under these circumstances, for

the Borough to refrain from repairing the defect.          Russo Farms v.

Vineland Bd. of Educ., 144 N.J. 84, 106 (1996).

     All defendants are entitled to the protection of the TCA.

Summary judgment was properly granted by the trial court.

     Affirmed.




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