                                NOT FOR PUBLICATION WITHOUT THE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
