Ellison v. Housing Authority of City of South Amboy

• Decision Date: 28 September 1978
• Parties: Teresa ELLISON and Alfred Ellison, her husband, Plaintiffs-Appellants, v. HOUSING AUTHORITY OF the CITY OF SOUTH AMBOY, B. J. Lucarelli & Co., Inc., and American House of Aluminum, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 347

162 N.J.Super. 347

392 A.2d 1229

Teresa ELLISON and Alfred Ellison, her husband, Plaintiffs-Appellants, v. HOUSING AUTHORITY OF the CITY OF SOUTH AMBOY, B. J.

Lucarelli & Co., Inc., and American House of

Aluminum, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Sept. 18, 1978.

Decided Sept. 28, 1978.

Christopher R. Wood, South River, for plaintiffs-appellants (Rafano & Wood, South River, attorneys, Frederick D. Roselli and Christopher R. Wood, South River, on the brief).

Leonard J. Tafro, South Orange, for respondent, Housing Authority of City of South Amboy (Adams, Adubato, Tafro & Connelly, South Orange, attorneys).

No appearances for B. J. Lucarelli & Co., Inc. and American House of Aluminum.

Before Judges CONFORD and PRESSLER.

The opinion of the court was rendered by

PRESSLER, J. A. D.

This case, arising under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 Et seq., requires our construction and application of that provision thereof N.J.S.A. 59:4-6, which accords a public entity plan and design immunity.

Plaintiffs, pursuant to leave granted, appeal from a summary judgment dismissing their complaint against defendant Housing Authority of the City of South Amboy (Authority). They contend that the trial judge erred in concluding that the record before him evinced no genuine dispute of fact in respect of the Authority's claim of immunity from liability pursuant to N.J.S.A. 59:4-6. We agree that the motion for summary judgment was improvidently granted and accordingly reverse and remand for trial.

According to plaintiffs' proofs, they were, on July 11, 1976, tenants of an apartment in a housing project owned by the Authority and constructed by it some 25 years earlier. On that date plaintiff Teresa Ellison sustained injuries when she fell off a concrete porch at the front entrance of her apartment after being struck by the screen door at the entranceway. It is her theory of the case, supported by her expert's report, that the proximate cause of the accident was a dangerous condition of the premises created by the juxtaposition of the screen door in relation to the concrete porch. More specifically, it was her expert's opinion that the dangerous condition resulted from "the undersized depth of the exterior concrete platform (34 ) and the direction of swing of the self-closing screen door. The screen door, being spring hung, can virtually strike a person and sweep him off the narrow platform. The condition is aggravated by the limits of the screen door swing (approximately 75o instead of 90o )." It was his further opinion that the dangerous condition could be satisfactorily remedied by hinging the screen door to the opposite jamb or enlarging the platform. Plaintiffs' proofs also included documentary evidence that within three years prior to her fall two virtually identical accidents had occurred in the housing project and that the Authority had been advised by its own insurance carrier that the manner in which the screen doors were hung was the causative factor and should be remedied.

It is evident that these facts, if proved at trial, would support a Prima facie case of actionable negligence on defendant's part. See N.J.S.A. 59:4-2, expressly declaring the liability of a public entity 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. ¹

And see, E. g., Meta v. Cherry Hill Tp., 152 N.J.Super. 228, 377 A.2d 934 (App.Div.1977); McGowan v. Eatontown, 151 N.J.Super. 440, 376 A.2d 1327 (App.Div.1977); Whaley v. Hudson Cty., 146 N.J.Super. 76, 368 A.2d 980 (Law Div.1976).

The Authority, as indicated, sought to avoid the liability consequence resultant from application to the facts here of N.J.S.A. 59:4-2 by relying on the immunity provision of N.J.S.A. 59:4-6, which provides in full as follows:

Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, either in its original construction or any improvement thereto, where such plan or design has been approved in advance of the construction or improvement by the Legislature or (by) the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.

We do not doubt that N.J.S.A. 59:4-6 was intended to constitute an exception to the general liability provision of N.J.S.A. 59:4-2 and must be so construed. See, E. g., Rodgers v. Passaic Housing Auth., 139 N.J.Super. 569, 354 A.2d 681 (App.Div.1976). And see Johnson v. Southampton Tp., 157 N.J.Super. 518, 385 A.2d 260 (App.Div.1978). See, also, the 1972 Comment following the text of the section. Nor, however, do we doubt that a public entity's claim of immunity thereunder, particularly in view of N.J.S.A. 59:4-2, is a matter of affirmative defense as to which it bears not only the burden of pleading but also the burden of proof. See, generally, Montag v. Bergen Bluestone Co., 145 N.J.Super. 140, 148-149, 366 A.2d 1361 (Law Div.1976). We are further satisfied that a fair reading of this immunity provision compels the conclusion that the prerequisite fact which must be proved in order for the burden to be deemed to have been successfully carried is that the specific design or plan detail alleged to constitute the dangerous...