A state court judge in New Jersey has held that Rutgers University is not liable for a slip-n-fall incident that occurred after a football game, since the injured fan veered away from the sidewalk leading from the stadium. In sum, it held that state law mandates that courts “exercise restraint in accepting novel causes of action.”
The incident occurred on December 4, 2008, when plaintiff Lora Sherman, her husband, their friend, and their friend’s 13-year-old son, attended a Rutgers-Louisville football game at the Rutgers Stadium on the New Brunswick campus in Piscataway.
On the night of the plaintiff’s accident, the group decided to leave the game at halftime. They began to walk along the same route they had taken when they had come to the stadium earlier that evening after parking their car. The plaintiff was trailing the group by about five yards. They walked south, along the east side of the stadium and parallel to the Hale Center, an athletic building attached to the stadium. As the group walked along the sidewalk, the plaintiff saw lights on at the top of the windows in the Hale Center and decided to take a closer look, because “it looked like there might have been football players in there.” She “peeled off” from the others and started to walk directly toward the windows in the Hale Center. It was dark. As she stepped towards the building, the plaintiff was looking toward the window, rather than down at the sidewalk. She tripped over a retaining wall and fell, dislocating both of her arms and sustaining severe fractures requiring surgery.
Robert Hoffman, a licensed professional engineer and senior project manager employed by the defendant, testified that the walkway where the plaintiff fell was not a primary route to and from the stadium.
The plaintiff’s expert, Len Mc Cuen, a civil engineer and architect, inspected the scene on an August evening beginning “at twilight and extending until near full darkness.” He reported that “the sidewalk along the building, as well as the retaining wall and well were provided with no lighting and were in darkness. They were difficult to see, even knowing they were there.”
While the court began by assuming for purposes of the argument that the retaining wall and other structure at play there were dangerous, he also “determined that the design defect was such that defendant would not ‘realize that there was a design defect.’” It was, in other words, off the beaten path.
The court granted summary judgment, and the plaintiff appealed.
She claimed specifically, “A jury could reasonably conclude that the defendant is liable for the dangerous condition that existed on its property.”
The appeals court turned to the New Jersey Tort Claims Act (TCA). N.J.S.A. 59:4-2 which provides 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 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
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.”
Further, a “dangerous condition” is defined by N.J.S.A. 59:4-1 as “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.”
Considering this, the court found that the plaintiff “failed to establish a prima facie case that defendant’s property was in a dangerous condition. To establish that defendant’s property was in a dangerous condition, plaintiff was required to show, among other things, that she used the property with due care.” This is where her claim fell apart, according to the appeals court.
“To answer the question of whether a plaintiff has used a public entity’s property with due care, a court must undertake a two-fold analysis:
“The first consideration is whether the property poses a danger to the general public when used in the normal, foreseeable manner. The second is whether the nature of the plaintiff’s activity is ‘so objectively unreasonable’ that the condition of the property cannot reasonably be said to have caused the injury. Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 126, 777 A.2d 9 (2001).
“In this case, the defendant’s sidewalk extended in a north-south direction. The members of the general public, including football fans who attended defendant’s home football games, used the sidewalk. Faculty, staff, and students also undoubtedly used the sidewalk. But the foreseeable use of the sidewalk by all of those persons was to get from one point to another by walking along the paved sidewalk. Plaintiff produced no evidence that when used in that manner, the sidewalk, even under the lighting conditions that existed on the night of plaintiff’s accident, posed any risk of danger. To the contrary, when the plaintiff, her husband, her friend, and her friend’s son used the sidewalk for that purpose, they encountered no difficulty or risk of danger.
“When the plaintiff fell, she was not using the sidewalk to walk from one point to another in a north-side direction. Instead, she had turned and begun to walk perpendicular to the sidewalk, not toward an entrance to the building, but instead toward its opaque glass walls. She was not using the sidewalk or the property along the sidewalk in a normal, foreseeable manner. Had she used the sidewalk in the normal manner sidewalks are used, the accident never would have happened. She admitted as much in her deposition testimony when she said the accident would not have happened had she not peeled off from the others and taken a right-hand turn. Moreover, in the years that passed between the construction of the Hale Center renovations and the plaintiff’s accident, during which numerous football fans presumably walked along the walkway, the defendant had received not one other report of an incident at the retaining wall and well.
“Although we reject as contrary to the summary judgment standard defendant’s contention that plaintiff walked from an illuminated sidewalk into the darkness, we recognize that the lighting was sufficient to permit plaintiff, her husband, and their friends to traverse the sidewalk without incident. And though plaintiff now argues that ‘defendant had an attractive display inside the building that was at eye level from the direction she was walking,’ plaintiff testified differently at her deposition. There, she said she saw lights on at the top of the windows and decided to take a closer look to see football players.
“Considering all of those circumstances, we conclude as a matter of law that when measured against the two-fold due care analysis, the plaintiff was not using the defendant’s property with due care in a manner in which it was reasonably foreseeable that the property would be used.”
Lora Sherman and Timothy Sherman v. Rutgers, The State University Of New Jersey; Super. Ct. N.J.; DOCKET NO. A-4626-11T1, 2013 N.J. Super. Unpub. LEXIS 2162; 8/30/13
Attorneys of record: (for appellants) Brett R. Greiner (Levinson Axelrod, P.A., attorneys; Matthew P. Pietrowski). (for defendant/third-party plaintiff-respondent) George J. Kenny argued the cause (Connell, Foley, L.L.P., attorneys; Mr. Kenny, of counsel and on the brief).
