ROBERT B. SPAWN reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division.
In a recent case, a Plaintiff sued a Defendant-New Jersey Borough for personal injuries after she fell off of the east side of a boardwalk when visiting the beach. More specifically, Plaintiff alleged that the absence of a handrail on the section of the boardwalk where she fell constituted a dangerous condition that was the proximate cause of her injuries.
Prior to the incident, in October 2012, a portion of Defendant’s boardwalk was destroyed by Hurricane Sandy. In contemplating reconstruction design, Defendant consulted engineers about a number of aspects of the boardwalk, including the placement of railings. Once it was confirmed that the absence of railings along the entire boardwalk did not violate any codes or raise any engineering concerns, Defendant ultimately decided to forego the installation of railings other than those required by the American Disability Act along nineteen specific boardwalk access points. Then, in December 2012, the Borough Council presented its plan for the reconstruction of the boardwalk to the public, and the Borough Engineer approved and signed off on the plan. The approved plan did not include railings along the eastern edge of the boardwalk, including the eastern edge of the beach badge booth where Plaintiff’s accident occurred.
Indeed, on May 26, 2014, Plaintiff arrived at the boardwalk and proceeded to the booth to purchase a beach badge. After purchasing same, she turned and stepped away from the booth, and, as she did so, she stepped of the east edge of the boardwalk. Her face struck the edge of the boardwalk, and she sustained serious injuries to her face and jaw.
On August 9, 2018, the trial judge granted summary judgment to Defendant, finding that Defendant was entitled to plan or design immunity under the Tort Claims Act. Plaintiff appealed, and argued that plan or design liability was inapplicable to her case because Defendant’s decision regarding whether to install a handrail was not made by the full Borough Council.
The Appellate Division began its analysis by explaining that plan or design immunity under the Tort Claims Act - which governs public entity liability in New Jersey - is an affirmative defense as to which the public entity has the burden of proof. Specifically, in order for design immunity to attach, the public entity must establish that the condition that allegedly caused the injury was an “approved feature of the plan or design.” The public entity must also demonstrate that such plan or design was approved in advance of construction or improvement by a body vested with authority to give such approval. The Appellate Division also noted that a public entity did not need to show that a feature of the plan (e.g., the installation of a railing) was specifically considered and rejected. Rather, the entity only needed to provide evidence that it had considered the general condition about which a plaintiff complained in formulating the original plan or design.
Turning to the case at bar, the Appellate Division stated that the absence of handrails was clearly an approved feature of the plan or design of the boardwalk. To be sure, Defendant, through its Engineer, actually considered whether and to what extent to include handrails in reconstructing the boardwalk after it had been damaged by Hurricane Sandy. The Engineer even researched whether the absence of railings along the entire boardwalk violated any codes or raised any engineering concerns, and, as the Engineer found no violation of any code or other engineering principles, Defendant made a conscious choice to forego the installation of railings other than those required by the American Disability Act. The Appellate Division further explained that the this plan for reconstructing the boardwalk with limited railings was presented to the public in December 2012, and subsequently approved and ratified by the Borough Council prior to reconstruction. Accordingly, the Appellate Division found no basis to disturb the trial court’s findings, and upheld the grant of summary judgment to Defendant.
Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.