Kenneth Mr. Vercammen was included in the 2017 “Super Lawyers” list published by Thomson Reuters.

To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or visit www.njlaws.com

(732) 572-0500

Sunday, February 22, 2009

Polzo v County of Essex

12-3-08 Donald T. Polzo, etc. v. County of Essex, et al.
(A-69-07)

Due to the procedural circumstances of this case, it cannot be
determined as a matter of law whether the County of Essex was on
constructive notice of a dangerous condition on public property;
therefore, the matterfurther proceedings.

Thursday, February 19, 2009

2-19-09 Camie Livsey v. Mercury Insurance Group (A-96-07)

2-19-09 Camie Livsey v. Mercury Insurance Group (A-96-07)

There are fundamental differences between the personal injury protection (PIP) statute and the uninsured motorist (UM) statute sufficient to bar the importation of the extent of PIP coverage in the context of a drive-by shooting to a UM coverage question. Also, because the insured’s injuries from the drive-by shooting were not causally connected to the insured’s use of her motor vehicle, the Court reverses the judgment of the Appellate Division and reinstates the trial court’s judgment in favor of the insurer.

2-19-09 Rhonda Bosland v. Warnock Dodge, Inc. (A-97-07)

2-19-09 Rhonda Bosland v. Warnock Dodge, Inc. (A-97-07)

The Consumer Fraud Act does not require a consumer to seek a refund from an offending merchant prior to filing a complaint.

2-18-09 Elizabeth Baboghlian v. Swift Electrical Supply Co.

2-18-09 Elizabeth Baboghlian v. Swift Electrical Supply Co.

Under the circumstances presented, in the absence of a statutory requirement to install a fire alarm system, the former Code requirements to obtain a permit and perform inspections do not justify the imposition of a nondelegable duty on a property owner in the installation of a fire alarm system.

Monday, February 9, 2009

02-09-09 Hackensack City v. Bergen County County of Bergen v. Hackensack City A-0507:0511:0512:0929-07T2(consolidated)

02-09-09 Hackensack City v. Bergen County County of Bergen v. Hackensack City
A-0507:0511:0512:0929-07T2(consolidated)

In these consolidated appeals from determinations of the Tax Court, we conclude the County's limited use of property and its preparation of the property for possible office use were sufficient public purposes to qualify the property for exempt
status pursuant to N.J.S.A. 54:4-3.3. We also examine the application of the Freeze Act, N.J.S.A. 54:51A-8, to the two years following the Tax Court's final judgment, as affirmed. The judgment rejected the City's challenge to the sufficiency of the property's public purposes and concluded the County owned property, denoted as tax exempt from 1975 to 1993, continued to be exempt in 1994.

02-06-09 In The Matter of Review and Revision of the Decision to Deny Freshwater General Permit No.7 A-4593-06T1

02-06-09 In The Matter of Review and Revision of the Decision to Deny Freshwater General Permit No.7 A-4593-06T1

This appeal concerns the issuance of Freshwater General Permit No. 7, N.J.A.C. 7:7A-5.7, by the Department of Environmental Protection for respondent's work in a man-made ditch located in an easement respondent had on appellant's property. The DEP concluded that compliance with the Storm Management Rules, N.J.A.C. 7:8-1 to -6.3, was not required because the work was not a "major development."

02-06-09 Randolph v. City of Brigantine Planning Board A-3031-07T2

02-06-09 William Randolph v. City of Brigantine Planning Board, et al. A-3031-07T2

In this appeal, we concluded that conflict of interest principles embodied in the common law, the Municipal Land Use Law, and the Local Government Ethics Law, required a member of the planning board to disqualify herself from applications in
which the board's engineer reviews the application and provides recommendations to the board, where the board member had a personal relationship with, and owned a home jointly with, the principal of the engineering firm that employed the board engineer. As a result, we set aside the board's approval of a preliminary site plan application and reversed the trial court judge who affirmed the planning board's decision.

02-04-09 Marrone v. Greer & Polman Construction, Greer & Polman Construction v. Selective Insurance Group A-3651-07T2

02-04-09 Joseph Marrone, et al. v. Greer & Polman Construction, Inc., et al.
Greer & Polman Construction, Inc. v. Selective Insurance Group, Inc., et al.
A-3651-07T2

Plaintiffs sued the manufacturer and the distributor of a home siding product known as Exterior Insulation Finish System (EIFIS cladding), alleging that the cladding was defective and allowed water damage to the house. They did not claim that the cladding caused personal injury or damage to personal property. Plaintiffs, who purchased the house from the original owners eight years after construction, had no contact with the defendants and received no information about the cladding before
buying the house. We affirmed the summary judgment dismissal of their claims under the Consumer Fraud Act (CFA) and the Products Liability Act (PLA). The CFA claim was properly dismissed because there was no proof of a causal connection between defendants' alleged misrepresentations about their product to third parties and plaintiffs' decision to buy the house. The PLA claims were barred by the economic loss doctrine. Construing N.J.S.A. 2A:58C-1b(2), which defines "harm" to property as excluding harm "to the product itself," we concluded that the product purchased was the house and that plaintiffs could not sue under the PLA where a component of the purchased product caused damage to the product.

Wednesday, February 4, 2009

City may be liable of bike injury if notice of dangerous condition on road Polzo v. County of Essex

12-3-08 Donald T. Polzo, etc. v. County of Essex, et al.
(A-69-07)
City may be liable of bike injury if notice of dangerous condition on road
Due to the procedural circumstances of this case, it cannot be
determined as a matter of law whether the County of Essex was on
constructive notice of a dangerous condition on public property;
therefore, the mattefurther proceedings.

Tuesday, February 3, 2009

02-03-09 East Orange Board of Education v. New Jersey Schools Construction and the New Jersey Economic Development Authority A-6597-05T1

02-03-09 East Orange Board of Education v. New Jersey Schools Construction Corporation and the New Jersey Economic Development Authority A-6597-05T1

The East Orange Board of Education brought an action in lieu of prerogative writs against the New Jersey Schools Construction Corporation and the New Jersey Economic Development Authority seeking an order requiring them to proceed with certain school facilities projects that were deferred when the initial funding from the Educational Facilities Construction and Financing Act ran low. The action was filed in the Law Division in Essex County. It was subsequently transferred to Mercer County and then to the Appellate Division. We held that the East Orange Board of Education did not demonstrate that the deferral was arbitrary or capriciously and that it was not entitled to the application of equitable or promissory estoppel either legally or factually. We affirmed the transfer to the Appellate Division and dismissed the action in lieu of prerogative writs with prejudice.

02—02-09 Donnelly v. Donnelly A-2389-07T3

02—02-09 Elizabeth Donnelly v. Gregory R. Donnelly A-2389-07T3

In December 2003, the parties entered into a property settlement agreement that fixed, among other things, defendant's
support obligations by utilizing an income figure derived from an average of defendant's income from his law practice over the five previous years. In April 2005, defendant moved for a downward modification, claiming a decline in his income. After
a plenary hearing, the trial judge found unconvincing defendant's claim that his income had declined as asserted. Approximately one year later, defendant moved again for a downward modification, citing an additional decline in his income; the trial judge denied that application without a hearing. In this appeal, the court affirmed the denial of the second modification motion, concluding among other things that the trial judge was fully authorized to rely upon his earlier findings as well as defendant's failure in the interim to modify the relatively exorbitant lifestyle he adopted after the divorce -- a fact that played a large role in the denial of the first motion. The court also held that the trial judge correctly found that the alleged decline in income had not been shown to be anything but temporary in light of the brief period of time that had elapsed since he decided the first modification motion.

01-30-09 Hoffman v. Hampshire Labs A-3401-07T1

01-30-09 Harold M. Hoffman v. Hampshire Labs, Inc., et al. A-3401-07T1

The trial court correctly determined that plaintiff failed to state a claim under the Consumer Fraud Act (CFA), N.J.S.A.
56:8-1 to -60, because plaintiff did not allege sufficient facts to establish that, in the sale of their product, defendants had
engaged in an act or practice declared unlawful by the CFA or that plaintiff had sustained an "ascertainable loss" due to any
such unlawful act. The trial court also correctly found that plaintiff failed to state a claim of fraud because plaintiff had not alleged sufficient facts to show that defendants made false statements about their product, knowing that the statements were
false, or that plaintiff had purchased the product in reliance upon any such false statement.

01-28-09 Kay v. Kay, Kanefsky, Executor of the Estate of Kay A-1594-07T3

01-28-09 Hildegard Kay v. George Kay
Bernard Kanefsky, Executor of the Estate of George Kay A-1594-07T3

George Kay died during the pendency of an action for divorce, and the trial court denied his estate leave to substitute for defendant and file amended pleadings. On appeal the estate contends that the trial court erred by relying on Krudzlo v. Krudzlo, 251 N.J. Super. 70, 73 (Ch. Div. 1990), in which the court held that, unlike a surviving spouse, the estate of a decedent spouse "is not entitled to assert equitable claims against the marital estate sounding in constructive trust, resulting trust, quasi-contract or unjust enrichment" in accordance with Carr v. Carr, 120 N.J. 336 (1990). We conclude that the trial court should have accepted the pleadings and considered whether the equities stemming from the facts alleged call for relief from the strict legal effects of
defendant's death during the pendency of the divorce action. To the extent that Krudzlo provides a contrary rule, we disapprove it.

1-29-09 Ogborne v. Mercer Cemetery (A-66/67-07)

1-29-09 Suzanne K. Ogborne v. Mercer Cemetery Corporation (A-66/67-07)

The “Palpably unreasonable” standard of N.J.S.A. 59:4-2 applies to this cause of action because it concerns the physical
condition of public property. In addition, the issues of proximate cause and comparative negligence must be retried because issues concerning the dangerous condition of the property and whether the City acted in a palpably unreasonable manner are intertwined with the issues of causation and foreseeability.

1-29-09 Ogborne v. Mercer Cemetery (A-66/67-07)

1-29-09 Suzanne K. Ogborne v. Mercer Cemetery Corporation (A-66/67-07)

The “Palpably unreasonable” standard of N.J.S.A. 59:4-2 applies to this cause of action because it concerns the physical
condition of public property. In addition, the issues of proximate cause and comparative negligence must be retried because issues concerning the dangerous condition of the property and whether the City acted in a palpably unreasonable manner are intertwined with the issues of causation and foreseeability.

1-29-09 Piermount Iron Works v. Evanston Insurance (A-19-08)

1-29-09 Piermount Iron Works, Inc. v. Evanston Insurance Company (A-19-08)
Evanston is not subject to N.J.A.C. 11:1-20.2(j)’s automatic renewal penalty. Surplus lines insurance policies are exempted
from the regulatory cancellation and nonrenewal provisions that apply to primary insurers. Further, Evanston’s use of a required, standard form commercial lines policy, which contained a nonrenewal provision, did not demonstrate intent to submit voluntarily to the automatic-renewal penalty regulation.

Sunday, February 1, 2009

Supreme Court orders new trial against city in negligence lawsuit and requires proof of Palpably unreasonable actions bu city employee Ogborne v. Mer

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).

Suzanne K. Ogborne v. Mercer Cemetery Corp. (A-66/67-07)

Submitted October 6, 2008 -- Decided January 29, 2009

WALLACE, Jr., J., writing for a unanimous Court.

In this appeal, the Court must decide whether, under the Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3, the
conduct of a public entity and its employee should be governed by the general rule of vicarious liability set forth in
N.J.S.A. 59:2-2, or under public entity liability with regard to the dangerous condition of public property set forth in
N.J.S.A. 59:4-2.

On November 26, 2001, plaintiff, Suzanne Ogborne, decided to take a walk through Mercer Cemetery Park
(Park), which is located in Trenton. The Park contains walking paths, benches, and picnic areas for the public. It
has two wrought iron gates that are used as public entrances, and it is entirely enclosed, partially by a wrought iron
picket fence approximately five or six feet in height and partially by a brick wall that ranges in height from three to
five feet measured from inside.

The City of Trenton’s Department of Recreation, Natural Resources, and Culture (City) is responsible for
opening and closing the gates to the Park. On weekdays, the gates are unlocked from 7:30 a.m. and locked around
4:30 p.m. Prior to locking the gates, an employee of the City is required to check the interior of the Park to make
sure no one is inside. The employees responsible for locking and unlocking the gates are the only persons who
possess the keys to the locks.

Ogborne, who was thirty-five years old at the time, walked leisurely through the Park for about thirty
minutes. When she attempted to leave, she noticed that the front gate was locked. She walked around the perimeter
of the Park hoping to discover a means of egress or, at least, someone who could provide assistance, but she was
unsuccessful. Ogborne finally decided to scale a three-foot section of the brick wall to escape the Park. From a
seated position on top of the wall, Ogborne dropped six to seven feet to the ground below. She landed awkwardly
and fractured her right tibia. She could not move and remained on the ground for approximately thirty minutes until
a passerby noticed her and summoned help.

Tests revealed that Ogborne suffered fractures of her right tibia -- the bone was broken into three pieces.
She underwent surgery, and a rod and screws were inserted into her leg to facilitate healing. Ogborne was out of
work for three months, and developed a pulmonary embolism as a result of the injury and/or the treatment for the
injury.

Ogborne filed a complaint alleging that the City negligently maintained the Park, causing her to fall and
suffer permanent injury. Ogborne sought partial summary judgment. The trial court granted the motion, finding
that the City was negligent and that Ogborne’s injuries met the Act’s threshold to recover pain and suffering
damages, but held that the issues of proximate cause and comparative fault must be decided by a jury. The City
moved for reconsideration, contending that Ogborne’s cause of action should be governed by N.J.S.A. 59:4-2, which
holds public entities liable for injuries caused by “dangerous conditions” on public property and requires a finding
that a defendant acted in a “palpably unreasonable” manner. The trial court denied the motion.

The jury returned a verdict in favor of Ogborne and awarded damages in the amount of $1,640,000. The
City appealed. In an unpublished opinion, the Appellate Division affirmed in part, reversed in part, and remanded
for a new trial on liability. The panel found that the trial court erred by applying the ordinary negligence standard
pursuant to N.J.S.A. 59:2-2 and remanded for application of the more stringent “palpably unreasonable” standard
pursuant to N.J.S.A. 59:4-2 because Ogborne’s cause of action implicated a “dangerous condition” of property. In
2
remanding for a new trial, the panel held that the parties must resubmit proofs of proximate cause and comparative
fault, but concluded that the damages award need not be retried.

The Supreme Court granted Ogborne’s petition for certification and the City’s cross-petition for
certification. 192 N.J. 599 (2007).

HELD: The “palpably unreasonable” standard of N.J.S.A. 59:4-2 applies to this cause of action because it concerns
the physical condition of public property. In addition, the issues of proximate cause and comparative negligence
must be retried because issues concerning the dangerous condition of the property and whether the City acted in a
palpably unreasonable manner are intertwined with the issues of causation and foreseeability.

1. The guiding principle of the Act is that immunity from tort liability is the general rule and liability is the
exception. This appeal does not present us with the clash between a liability provision and an immunity provision of
the Act, but rather a clash between two liability provisions. N.J.S.A. 59:2-2 governs a plaintiff’s cause of action
when it turns on whether a public employee was ordinarily negligent in undertaking the action that caused the
plaintiff’s injury. The competing liability provision is N.J.S.A. 59:4-2, which states that a public entity will only be
liable for injuries resulting from a dangerous condition of property created by an employee’s negligence if the entity
acted in a palpably unreasonable manner in failing to protect against the condition. The “palpably unreasonable”
standard is not defined by the Act. This Court, however, has stated that the palpably unreasonable standard implies
a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff than the standard of
ordinary negligence. The Court further explained that for 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.” (pp. 9-13)

2. In the present case, the Court must determine whether the ordinary negligence standard of N.J.S.A. 59:2-2 must
give way to the palpably unreasonable standard of N.J.S.A. 59:4-2 when a public employee’s negligent conduct
causes a plaintiff to come into contact with a condition of property that causes his or her injury. In light of the Act’s
silence on that issue, the Court looks to the underlying legislative intent. It is obvious that the Legislature intended
public entities to receive broad immunity protection under the Act. As a result, this Court has held that an immunity
provision of the Act will trump an applicable liability provision. That same principle guides the result here.
Consistent with the Legislature’s purpose of providing broad immunity under the Act, the Court believes that the
Legislature also intended a broad reading of the dangerous condition of public property provisions of N.J.S.A. 59:4-
2, with its higher standard for imposition of liability. Therefore, when the facts are reasonably debatable that a
public employee’s act or failure to act created a dangerous condition of property, and that condition of property
causes an injury, the higher standard of palpably unreasonable conduct operates to trump the ordinary negligence
standard which otherwise applies when the act of a public employee causes an injury. (pp. 13-15)

3. It is obvious that if Ogborne had not been in the Park, the employee’s conduct in locking the gates would not have
created a dangerous condition of property. It was the combination of Ogborne being in the Park and the City’s
employee locking the gates that rendered the Park potentially dangerous to Ogborne. Under those conditions, it is
reasonably debatable that the locking of the gates rendered the Park a dangerous condition because Ogborne was
unable to walk out in the same manner that she entered the Park. Consequently, the Court agrees with the Appellate
Division that the proper legal standard for judging Ogborne’s claim against the City should have been the combined
dangerous condition of property and palpably unreasonable standard pursuant to N.J.S.A. 59:4-2. (pp. 15-16)

4. The Court also agrees with the Appellate Division’s conclusion that the issues of proximate cause and
comparative negligence must be retried. Issues concerning the dangerous condition of the property and whether the
City acted in a palpably unreasonable manner are intertwined with the issues of causation and foreseeability. (pp.
16-17)

5. Regarding the City’s challenge to the damages verdict, the Court notes that the City did not move for a new trial
based on the weight of the evidence. Absent a new trial motion on that ground, the claim that the damages verdict
was against the weight of the evidence is not cognizable on appeal. Even if the Court were to find justifiable reason
to disregard that rule, the Court finds no necessity to order a new trial on damages. This Court has held that when
the damages award is not tainted by the error in the liability portion of the case and is fairly separable, retrial need
3
not include the issue of damages. And, although the damages award here was high, it was reasonably supported by
the evidence. Consequently, the Court finds no need to retry the damages issue. (pp. 17-19)

The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and
HOENS join in JUSTICE WALLACE’s opinion.
SUPREME COURT OF NEW JERSEY
A-66/67 September Term 2007


SUZANNE K. OGBORNE,

Plaintiff-Appellant
and Cross-Respondent,

v.

MERCER CEMETERY CORPORATION
and JOHN DOES 1-10 (persons
responsible for the
ownership, maintenance and
control of said premises
where plaintiff fell and
sustained injuries),

Defendants,

and

CITY OF TRENTON,

Defendant-Respondent
and Cross-Appellant.



Argued October 6, 2008 – Decided January 29, 2009

On certification to the Superior Court,
Appellate Division.

Ronald B. Grayzel argued the cause for
appellant and cross-respondent (Levinson
Axelrod, attorneys).

Ruby Denise Lyles, City Attorney, argued the
cause for respondent and cross-appellant
(Ms. Lyles, attorney; Peter J. Cohen,
Assistant City Attorney, on the briefs).

JUSTICE WALLACE, JR. delivered the opinion of the Court.

2
In this appeal, we must decide whether, under the Tort
Claims Act (Act), N.J.S.A. 59:1-1 to 12-3, the conduct of a
public entity and its employee should be governed by the general
rule of vicarious liability set forth in N.J.S.A. 59:2-2, or
under public entity liability with regard to the dangerous
condition of public property set forth in N.J.S.A. 59:4-2.
Plaintiff was trapped inside the Mercer Cemetery Park (Park)
after an unidentified City employee locked the gates several
hours before the Park was scheduled to close. Finding no other
means of egress, plaintiff climbed atop a lower part of the
brick wall surrounding the Park and dropped to the ground
outside the walls. In doing so, she fractured her right tibia.
The trial court found that the public entity was
vicariously negligent as a matter of law for the conduct of a
public employee acting within the scope of employment, but that
a jury must decide the issues of proximate cause and comparative
negligence. A jury returned a verdict in favor of plaintiff and
awarded her $1,640,000 in damages. On appeal, the Appellate
Division held that the trial court should have applied N.J.S.A.
59:4-2 because plaintiff’s injuries were allegedly caused by the
dangerous condition of the property after the employee’s actions
had ceased. The panel remanded for a new trial on liability
only, determining that the damages award was separate and
distinct from the liability issues. We granted plaintiff’s
3
petition for certification raising the liability issues and
defendant’s cross-petition related to the damages issue. We now
affirm the judgment of the Appellate Division and remand for a
new trial for the court to apply the liability standards under
N.J.S.A. 59:4-2.
I.
The essential facts are not disputed. On November 26,
2001, plaintiff decided to take a lunchtime walk through the
Park, which is bordered by South Clinton Avenue, Raoul
Wallenberg Avenue, and Magowan Street. It is surrounded by
numerous government office buildings, and there are bus stops
near the front entrance on South Clinton Avenue. The Park
contains walking paths, benches, and picnic areas for the
public. It has two wrought iron gates that are used as public
entrances, and it is entirely enclosed, partially by a wrought
iron picket fence approximately five or six feet in height and
partially by a brick wall that ranges in height from three to
five feet measured from inside.
The City of Trenton’s Department of Recreation, Natural
Resources, and Culture (City) is responsible for opening and
closing the gates to the Park. On weekdays, the gates are
unlocked around 7:30 a.m. and locked around 4:30 p.m. Prior to
locking the gates, an employee of the City is required to check
the interior of the Park to make sure no one is inside. The
4
employees responsible for locking and unlocking the gates are
the only persons who possess the keys to the locks.
Plaintiff, who was thirty-five years old at the time,
walked leisurely through the Park for about thirty minutes.
When plaintiff attempted to leave, she noticed that the front
gate was locked. Plaintiff did not see any pedestrians on South
Clinton Avenue when she approached that gate. She then walked
to the rear gate to see if it was open, but that gate was also
locked. She did not have a cellular telephone and did not feel
comfortable yelling for assistance because she might draw
attention to the fact that she was trapped. Plaintiff feared
that someone might attempt to take advantage of her precarious
position. She walked around the perimeter of the Park twice,
hoping to discover a means of egress or, at least, someone who
could provide assistance, but she was unsuccessful.
Finally, plaintiff decided to scale a three-foot section of
the brick wall to escape the Park. From a seated position on
top of the wall, plaintiff dropped six to seven feet to the
ground below. She landed awkwardly and fractured her right
tibia. She could not move and remained on the ground for
approximately thirty minutes until a passerby noticed her and
summoned help. A short while later, emergency medical personnel
arrived in an ambulance and transported plaintiff to a nearby
hospital. Tests revealed that plaintiff suffered a comminuted
5
segmental fracture of her right tibia -- the bone was broken
into three pieces. She was placed in a long-leg posterior
splint, given crutches and pain medication, and discharged with
orders to follow up with an orthopedist.
Plaintiff visited Dr. Gregg R. Foos, an orthopedic surgeon,
who recommended surgical repair. Three days after the accident,
on November 29, 2001, plaintiff underwent orthopedic surgery. A
rod and screws were inserted into her leg to facilitate proper
healing. Plaintiff remained in the hospital for five days.
Plaintiff was out of work for three months. During the
healing process, she received physical therapy, x-rays, follow-
up doctor visits, medication to treat her pain, and medication
to treat a pulmonary embolism that she developed as a result of
the injury and/or the treatment of her injury. She required the
assistance of a wheelchair, crutches, a walker, or a cane to get
around.
Plaintiff filed a complaint against the City and the Mercer
Cemetery Corporation in May 2003, alleging that defendants
negligently maintained the Park, causing her to fall and suffer
permanent injury. Following discovery, plaintiff moved for
partial summary judgment. The trial court granted plaintiff
summary judgment, finding that the City was negligent and that
plaintiff’s injuries met the Act’s threshold to recover pain and
suffering damages as a matter of law, but held that the issues
6
of proximate cause and comparative fault must be decided by a
jury.
The City moved for reconsideration, contending that
plaintiff’s cause of action should be governed by N.J.S.A. 59:4-
2, which holds public entities liable for injuries caused by
“dangerous conditions” on public property and requires a finding
that defendant acted in a “palpably unreasonable” manner. The
trial court denied the motion. The City sought leave to appeal
and a stay of the trial. After the trial court denied the
motion for stay, the City withdrew its motion for leave to
appeal, and the trial proceeded.
Plaintiff testified, described what happened, outlined her
injuries, and indicated that when she returned to work she had
to use a cane. She complained that she continued to experience
a loss of strength in her right leg, weather-related aches and
swelling, numbness in her foot and leg, and an inability to
participate in certain physical activities that she previously
enjoyed, such as yoga and swimming. Her life expectancy was
forty-one years from the date of the accident.
Plaintiff’s medical expert opined that plaintiff’s injuries
were permanent in nature. The expert also asserted that
plaintiff’s medical history, which included a pulmonary
embolism, could complicate any future surgery she elects to
undergo. Although defendant’s medical expert opined that
7
plaintiff could have the rod and screws surgically removed from
her leg, he did not recommend that course of action.
The jury returned a verdict in favor of plaintiff and
awarded her damages in the amount of $1,640,000. The City did
not file any post-trial motions, but it did file an appeal.
In an unpublished opinion, the Appellate Division affirmed
in part, reversed in part, and remanded for a new trial on
liability. The panel found that the trial court erred by
applying the ordinary negligence standard pursuant to N.J.S.A.
59:2-2 and remanded for the application of the more stringent
“palpably unreasonable” standard pursuant to N.J.S.A. 59:4-2
because plaintiff’s cause of action implicated a “dangerous
condition” of property liability. In remanding for a new trial,
the panel held that the parties must resubmit proofs of
proximate cause and comparative fault because those issues are
not “distinct and severable” from the application of the
“palpably unreasonable” standard. However, the panel concluded
that the damages award need not be retried because the damages
issue was severable from the liability issue. The panel noted
that the damage award of $1,640,000 was “high,” but “reasonably
supported by the evidence relating to the severity and
permanence of plaintiff’s injuries, combined with plaintiff’s
long life expectancy.”
8
We granted plaintiff’s petition for certification and the
City’s cross-petition for certification. 192 N.J. 599 (2007).
II.
Plaintiff contends that the ordinary negligence standard
applies rather than the more stringent “palpably unreasonable”
standard of N.J.S.A. 59:4-2, which governs when the issue
concerns the physical condition of public property. She urges
that the negligent act of the public employee in failing to
discover her presence in the Park before locking the gates
caused her injury, not the physical condition of the Park
property. Additionally, plaintiff asserts that even if a new
trial is required, the Appellate Division correctly upheld the
damages verdict, but erred in ordering reconsideration of
proximate cause and comparative fault because the jurors fairly
decided those two issues.
The City counters that the appropriate standard is whether
the City employee who allegedly locked the Park gates created a
dangerous condition of public property that contributed to
plaintiff’s injury, necessitating the application of N.J.S.A.
59:4-2. The City argues that the facts demonstrate that
plaintiff was not injured by the “actions of a City employee”
closing the gates, but rather by the static condition of the
Park after the employee’s action ceased. The City agrees with
the Appellate Division’s conclusion that proximate cause and
9
comparative fault are inextricably tied to the application of
N.J.S.A. 59:4-2 and must be retried on remand, but urges that
the damages issue should also be retried because it is not
fairly separable from the liability issues. The City adds that
even though it failed to move for remittitur, the Appellate
Division should not have weighed the viability of the damages
verdict against the “shocks-the-conscience” standard.
III.
In this case, we must determine whether to apply the Act’s
ordinary negligence standard, N.J.S.A. 59:2-2, or its “palpably
unreasonable” standard, N.J.S.A. 59:4-2, to the City’s conduct.
Before turning to that troublesome issue, we restate some
general principles under the Act.
On several occasions, we reviewed the history of the Act.
See Velez v. City of Jersey City, 180 N.J. 284, 289-91 (2004).
The Act re-establishes sovereign immunity and provides that
“public entities shall only be liable for their negligence
within the limitations of this act and in accordance with the
fair and uniform principles established” in the Act. N.J.S.A.
59:1-2; Smith v. Fireworks by Girone, 180 N.J. 199, 207 (2004)
(noting “dominant theme of the [Act] was to reestablish the
immunity of all governmental bodies in New Jersey, subject only
to the [Act’s] specific liability provisions”). This Court
reiterated in Coyne v. State, Dep’t of Transp. that “[t]he
10
guiding principle of the [Act] is that ‘immunity from tort
liability is the general rule and liability is the exception.’”
182 N.J. 481, 488 (2005).
This appeal does not present us with a clash between a
liability provision and an immunity provision of the Act, but
rather a clash between two liability provisions. N.J.S.A. 59:2-
2 governs a plaintiff’s cause of action when it turns on whether
a public employee was ordinarily negligent in undertaking the
action that caused the plaintiff’s injury. N.J.S.A. 59:2-2
provides:
a. A public entity is liable for injury
proximately caused by an act or omission of
a public employee within the scope of his
employment in the same manner and to the
same extent as a private individual under
like circumstances.

b. A public entity is not liable for an
injury resulting from an act or omission of
a public employee where the public employee
is not liable.

That is, “when the public employee is liable for acts within the
scope of that employee’s employment, so too is the entity.”
Tice v. Cramer, 133 N.J. 347, 355 (1993). Although a public
entity is generally immunized from suits based on discretionary
acts, the public entity may be liable for “negligence arising
out of acts or omissions of its employees in carrying out their
ministerial functions.” N.J.S.A. 59:2-3.
11
The competing liability provision is N.J.S.A. 59:4-2, which
states that a public entity will only be liable for injuries
resulting from a dangerous condition of property created by an
employee’s negligence if the entity acted in a palpably
unreasonable manner in failing to protect against the condition.
That section 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 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.

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.

[N.J.S.A. 59:4-2.]

A “dangerous condition” is defined in the Act as “a condition of
property that creates a substantial risk of injury when such
12
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-
1(a). We have noted that a “substantial risk” is “‘one that is
not minor, trivial or insignificant.’” Kolitch v. Lindedahl,
100 N.J. 485, 493 (1985). “Public property” is defined in
pertinent part as “real or personal property owned or controlled
by the public entity.” N.J.S.A. 59:4-1(c). The Act does not
define the term “condition of property.”
Although the “palpably unreasonable” standard also is not
defined by the Act, this Court has defined it in the following
manner:
For today’s purposes we accept what was
stated in Williams v. Phillipsburg, 171 N.J.
Super. 278, 286 (App. Div. 1979), in which
the court differentiated the term “palpably
unreasonable” from ordinary negligence:

We have no doubt that the duty of
ordinary care, the breach of which
is termed negligence, differs in
degree from the duty to refrain
from palpably unreasonable
conduct. The latter standard
implies a more obvious and
manifest breach of duty and
imposes a more onerous burden on
the plaintiff.

We conclude that the term implies behavior
that is patently unacceptable under any
given circumstance. . . . [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.
13

[Kolitch, supra, 100 N.J. at 493 (quotations
omitted); see also Muhammad v. N.J. Transit,
176 N.J. 185, 195-96 (2003); Holloway v.
State, 125 N.J. 386, 403-04 (1991).]

In the present case, this Court must determine whether the
ordinary negligence standard of N.J.S.A. 59:2-2 must give way to
the more stringent “palpably unreasonable” standard of N.J.S.A.
59:4-2 when a public employee’s negligent conduct causes a
plaintiff to come into contact with a condition of property that
causes his or her injury. In light of the Act’s silence on the
issue, we look to the underlying legislative intent. See
Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 171 (2006) (“‘When
a statute is silent or ambiguous . . . the Court must interpret
the statute in light of the Legislature’s intent.’” (quoting
Burns v. Belafsky, 166 N.J. 466, 473 (2001))). The Legislature
provided broad immunity protection for public entities because
“the area within which the government has the power to act for
the public good is almost without limit and therefore government
should not have the duty to do everything that might be done.”
N.J.S.A. 59:1-2. Thus, it is obvious that the Legislature
intended public entities to receive broad immunity protection
under the Act. As a result, this Court has held that an
immunity provision of the Act will trump an applicable liability
provision. See, e.g., Pico v. State, 116 N.J. 55, 62-63 (1989).
14
That same principle guides the result here. Consistent
with the Legislature’s purpose of providing broad immunity under
the Act, we believe that the Legislature also intended a broad
reading of the dangerous condition of public property provisions
of N.J.S.A. 59:4-2, with its higher standard for imposition of
liability. That statute “immunizes a public entity from
liability for a dangerous condition when its negligence ‘was not
palpably unreasonable.’” Pico, supra, 116 N.J. at 63.
Therefore, when the facts are reasonably debatable that a public
employee’s act or failure to act created a dangerous condition
of property, and that condition of property causes an injury,
the higher standard of palpably unreasonable conduct in N.J.S.A.
59:4-2 operates to trump the ordinary negligence standard, which
otherwise applies when the act of a public employee causes an
injury.
Our construction of the Act is consistent with the view we
expressed in Pico, supra, 116 N.J. 55. In that case, an ice
storm caused icy conditions on Route 23 in Wayne. Id. at 57.
The condition was reported to a Department of Transportation
maintenance foreman. Id. at 57-58. Several hours later, the
plaintiff skidded on a patch of ice, regained control, parked
her car, walked away, and was struck by another vehicle. Id. at
58. The plaintiff sued various public entities, and the State
raised weather immunity under N.J.S.A. 59:4-7. Ibid. The Law
15
Division granted the State’s motion, but the Appellate Division,
after agreeing that the weather immunity provision precluded
liability under N.J.S.A. 59:4-2 for dangerous conditions,
reversed and concluded that the State might be liable for the
employee’s negligence under N.J.S.A. 59:2-2(a). Ibid. This
Court held that the weather immunity provision trumped
plaintiff’s claim predicated on ordinary negligence, but “even
if the weather immunity did not apply, plaintiff’s claim should
have been evaluated not by the standard of ordinary negligence,
. . . but by the standard of palpably unreasonable conduct of
N.J.S.A. 59:4-2.” Id. at 63. Thus, the Court expressed that
when the negligent activities of an employee involve the
creation of a dangerous condition of public property, the
vicarious liability provisions of N.J.S.A. 59:2-2 must give way
to the more exacting standards of N.J.S.A. 59:4-2.
We turn now to apply the above principles to the present
case. It is obvious that if plaintiff had not been in the Park,
the employee’s conduct in locking the gates would not have
created a dangerous condition of property. It was the
combination of plaintiff being in the Park and the City’s
employee locking the gates that rendered the Park potentially
dangerous to plaintiff. Under those conditions, it is
reasonably debatable that the locking of the gates rendered the
Park a dangerous condition because plaintiff was unable to walk
16
out in the same manner that she entered the Park. Consequently,
we agree with the Appellate Division that the proper legal
standard for judging plaintiff’s claim against the City should
have been the combined dangerous condition of public property
and “palpably unreasonable” standard pursuant to N.J.S.A. 59:4-
2, and not the ordinary negligence standard in N.J.S.A. 59:2-2.
Plaintiff also urges that it was error to remand the issues
of proximate cause and comparative negligence. We disagree.
In Conklin v. Hannoch Weisman, we declared that “in a civil tort
claim . . . [n]egligence . . . is usually inextricably
intertwined with the concept of proximate cause.” 145 N.J. 395,
410 (1996). And, in Ahn v. Kim, a case decided the same day as
Conklin, we emphasized “the general rule that issues in
negligence cases should be retried together unless the issue
unaffected by error is entirely distinct and separable from the
other issues.” 145 N.J. 423, 434 (1996); see Lewis v. Am.
Cyanamid Co., 155 N.J. 544, 561 (1998) (noting that “[b]ecause
the issues of plaintiff’s comparative negligence and defendants’
liability intertwine, it would be inappropriate to remand one
without the other”). We are in accord with the Appellate
Division’s conclusion that the issues of proximate cause and
comparative negligence must be retried because “[i]ssues
concerning the dangerous condition of the property and whether
17
the City acted in a palpably unreasonable manner are intertwined
with the issues of causation and foreseeability.”
We affirm the judgment of the Appellate Division that the
case should have been tried under N.J.S.A. 59:4-2, and that the
issues of proximate cause and comparative negligence must be
retried.
IV.
The City argues that the decision below conflicts with
Fertile v. St. Michael’s Med. Ctr., 169 N.J. 481 (2001), and
that it could not have achieved justice by pursuing a remittitur
remedy because “application of the wrong legal standards negated
the possibility of a fair trial on liability and damages.”
Initially, we note that the City did not move for a new
trial based on the weight of the evidence. R. 4:49-1. Absent a
new trial motion on that ground, the claim that the damages
verdict was against the weight of the evidence is not cognizable
on appeal. R. 2:10-1.
Even if we were to find justifiable reason to disregard
that rule, we find no necessity to order a new trial on damages.
The City does not claim any error in the charge to the jury on
damages, but rather urges the Court to follow the general rule
that when a trial error that affects liability occurs, the new
trial shall encompass all issues. Fertile, supra, 169 N.J. at
490-91.
18
However, “[t]he scope of the new trial depends on the
nature of the injustice.” Id. at 490. When the damages award
is not tainted by the error in the liability portion of the case
and is fairly separable, retrial need not include the issue of
damages. Lewis, supra, 155 N.J. at 563 (noting that remand on
liability and comparative negligence “should not include the
issue of damages”); see also Martin v. Prime Hospitality Corp.,
345 N.J. Super. 278, 293 (App. Div. 2001) (stating that failure
to apportion responsibility did not affect damages award); Weiss
v. Goldfarb, 295 N.J. Super. 212, 228 (App. Div. 1996) (noting
that liability issues and damages issues are “fairly separable”
so no reason to retry damages), rev’d on other grounds, 154 N.J.
468 (1998).
Recently, we explained that
[o]ur role in assessing a jury verdict for
excessiveness is to assure that compensatory
damages awarded to plaintiff encompass no
more than the amount that will make the
plaintiff whole, that is, the actual loss.
Although the judicial role in reviewing jury
verdicts . . . is essential to a rational
system of justice, the authority to set
aside damages awards on grounds of
excessiveness is limited. Verdicts should
be upset for excessiveness only in clear
cases. It is only upon the predicate of a
determination that there has been a manifest
miscarriage of justice, that corrective
judicial action is warranted.

[Jastram v. Kruse, ___ N.J. ___, ___ (2008)
(quotations, citations, and alterations
omitted).]
19

Simply stated, “the evaluation of damages is a matter uniquely
reposed in the jury’s good judgment and to justify judicial
interference, the verdict must be wide of the mark and pervaded
by a sense of wrongness.” Id. at (quotations and alteration
omitted).
In applying those principles here, we agree with the
assessment of the Appellate Division that although the damages
award was high, it was “reasonably supported by the evidence
relating to the severity and permanence of plaintiff’s injuries,
combined with plaintiff’s long life expectancy . . . and the
inherently subjective nature of pain and suffering damages.”
Consequently, we find no need to retry the damages issue.
V.
The judgment of the Appellate Division remanding for a new
trial to assess liability and related issues under N.J.S.A.
59:4-2, without the necessity of a new trial on damages, is
affirmed.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN,
RIVERA-SOTO and HOENS join in JUSTICE WALLACE’s opinion.
SUPREME COURT OF NEW JERSEY

NO. A-66/67 SEPTEMBER TERM 2007

ON CERTIFICATION TO Appellate Division, Superior Court

SUZANNE K. OGBORNE,

Plaintiff-Appellant
And Cross-Respondent,

v.

MERCER CEMETERY CORPORATION
and JOHN DOES 1-10 (persons
responsible for the
ownership, maintenance and
control of said premises
where plaintiff fell and
sustained injuries),

Defendants,

And

CITY OF TRENTON,

Defendant-Respondent
and Cross-Appellant.


DECIDED January 29, 2009
Chief Justice Rabner PRESIDING
OPINION BY Justice Wallace
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

CHECKLIST AFFIRM
CHIEF JUSTICE
RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 7

No Immunity for father in death of 4 year old who was left strapped in smoke filled car Thorpe v. Wiggan

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1995-07T2

HYACINTH THORPE, ADMINISTRATRIX
AD PROSEQUENDUM & GENERAL
ADMINISTRATRIX OF THE ESTATE OF
JOSEPH WIGGAN, DECEASED,

Plaintiff-Appellant,

v.

JASFORD WIGGAN,

Defendant-Respondent,

and

BMW OF NORTH AMERICA, LLC,

Defendant.
_________________________________________

Argued September 29, 2008 - Decided

Before Judges Carchman, R. B. Coleman and
Simonelli.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-
3587-05.

Jack Wurgaft argued the cause for appellant
(Javerbaum Wurgaft Hicks Kahn Wikstrom &
Sinins, attorneys; Mr. Wurgaft, of counsel
and on the brief).

Stephen O. Mortenson argued the cause for
respondent (Mortenson & Pomeroy, attorneys;
Mr. Mortenson, of counsel and on the brief;
Karen E. Heller, on the brief).

APPROVED FOR PUBLICATION

January 29, 2009

APPELLATE DIVISION
January 29, 2009
A-1995-07T2
2
The opinion of the court was delivered by
SIMONELLI, J.A.D.
This matter involves the tragic death of a four-year-old
child, Joseph Wiggan (Joseph), who burned to death while a
passenger in a car driven by his father, defendant Jasford
Wiggan. Joseph's mother, plaintiff Hyacinth Thorpe,
administratrix ad prosequendum and general administratrix of the
child's estate, sought damages against defendant for negligence
in failing to remove his son from the car before the fire
started.1 Plaintiff appeals from the November 28, 2007 order
granting defendant's motion in limine dismissing her complaint
with prejudice pursuant to the doctrine of parental immunity.
We reverse and remand for trial.
The following facts are summarized from the record. On the
evening of June 17, 2004, at approximately 9:00 p.m., defendant
was driving his 1993 BMW westbound on Route 78 in Springfield.
Joseph was secured in a child's safety seat directly behind the
driver's seat. There are differing versions of how the incident
occurred. In one version, defendant allegedly stated the

1
Plaintiff abandoned her claims against defendant for negligent
maintenance and/or operation of the car and for negligence in
causing the fire. She also voluntarily dismissed with prejudice
her claims against defendant BMW of North America, LLC.
A-1995-07T2
3
following to a State Police detective during a telephone
conversation on October 6, 2005:
[Defendant] informed this detective
that he had been traveling west on [Route
78.] He began to notice that his car was
emitting smoke. He heard "2 bangs," & he
smelled the smoke also, so he pulled his
vehicle over to the right shoulder. He then
got out & walked around the vehicle to
check, but was unable to determine from
where the smoke was coming. But there was
smoke inside the passenger compartment, &
then suddenly there was a lot of smoke &
there was fire in the back. He opened the
door to try to reach [his] son, but there
was so much smoke. [He] couldn't get him
out. [He] kept trying. It was so hot & so
much smoke. Then [he does not] know what
happened. Some people stopped but [he]
guess[ed] nobody could help. [He] wound up
in the hospital. [He] got burned.

In another version, defendant testified at his deposition
on February 28, 2007 that while driving in the middle lane of
Route 78 westbound, he heard two bangs from underneath the car
or the trunk and smelled smoke. He then saw smoke inside the
car. Believing that a tire might be the cause, he opened his
window. The car then "blew up in flames." He reached into the
back seat, tried to pull Joseph from the car seat but was
unsuccessful. He then pulled the burning car to the shoulder,
parked, ran to a bush and rolled to put out the fire on his
body. By the time he returned to the car, Joseph was dead.
A-1995-07T2
4
Defendant suffered third-degree burns over thirty-seven
percent of his body. He had prolonged treatment at the Burn
Unit of St. Barnabas Medical Center, including many weeks in a
medically-induced coma. Investigators subsequently determined
that the fire originated beneath the driver's seat, spread to
the center console and then spread to the passenger and back
seat areas. There is no evidence that the fire was set
intentionally. The exact cause of the fire is unknown.
Plaintiff conceded that she has no claim against defendant
under the deposition version, and no claim for willful and
wanton conduct. Plaintiff's only claim lies under the State
Police version, which she contends constitutes ordinary
negligence. Defendant stipulated to that version for the
purpose of the in limine motion. He argued that his decision to
leave his son in the car, away from the dangers of the highway,
while he inspected the vehicle was a legitimate exercise of his
discretion as a parent supervising his child, thus entitling him
to parental immunity. The motion judge agreed, concluding that:
[U]nder the facts known to [defendant]
at the time, his choice was, the decision he
had to make was how to care for his child
when the car was disabled on the highway at
night. He had a choice and that's clearly
what the issue is here that's been
[narrowed] by the parties. The choice was
what was he to do. Should he have removed
the child immediately at that time? Or
should he check out the car, the noises, and
A-1995-07T2
5
the smoke that he was aware of before
removing the child? That's basically the
issue here. Which choice was he to make?
And it seems to me that this is similar to
[DeMarco v. DeMarco, 274 N.J. Super. 257
(Law Div.), aff’d, 274 N.J. Super. 210 (App.
Div.), certif. denied, 138 N.J. 264 (1994)]
in which this is the situation in which the
parent must be allowed to exercise their
discretion and make a choice even if it's
the wrong choice.

So there being no willful or wanton conduct
that would remove the actions of [defendant]
from [] parental immunity here, it appears
to me that this was an exercise of judgment
on his part. Perhaps he would now wish that
he could go back and make a different
decision, but I [] think that this falls
within the area of circumstances where there
should be no judicial intrusion upon his
decision.

On appeal, plaintiff contends that defendant's decision to
leave Joseph in the car had nothing to do with providing for the
child's emotional and physical needs or fostering the child's
care and well-being. Rather, defendant negligently supervised
Joseph by failing to remove him from the car prior to the time
the fire started.
"[T]he doctrine of parental immunity . . . preclude[s]
liability in cases of negligent supervision, but not for a
parent's willful or wanton failure to supervise his or her
children." Foldi v. Jeffries, 93 N.J. 533, 549 (1983). "There
are certain areas of activities within the family sphere
involving parental discipline, care, and control that should and
A-1995-07T2
6
must remain free from judicial intrusion. Parents should be
free to determine how the physical, moral, emotional, and
intellectual growth of their children can best be promoted."
Id. at 545. For this reason, the doctrine only applies, "in
special situations that involved the exercise of parental
authority and customary child care." Id. at 551. Thus, where
willful and wanton conduct is not at issue, the immunity will
only apply if a defendant's conduct "implicates customary child-
care issues or a legitimate exercise of parental authority or
supervision." Buono v. Scalia, 179 N.J. 131, 138 (2004) (citing
Foldi, supra, 93 N.J. at 549). "[A]ny conduct that does not
reflect a legitimate child-rearing decision is excluded from the
immunity doctrine altogether, preserving in all respects a
traditional negligence claim." Id. at 145. "Ultimately,
whether conduct implicates parental decision-making . . . will
depend on the totality of circumstances in a given case, subject
to a fact-sensitive analysis by the trial judge and, when
warranted, by a jury." Id. at 138.
There being no claim here of willful or wanton conduct, the
only question is whether, under the totality of circumstances,
defendant's decision to leave Joseph in the car implicates
customary child-care issues or a legitimate exercise of parental
authority or supervision. A legitimate child-rearing decision
A-1995-07T2
7
existed where a parent decided to let his young child ride a
bicycle within the confines of a neighborhood block party in the
parent's presence. Id. at 134. Our Supreme Court held that
such a decision "falls within the purview of parental philosophy
involving a child's upbringing, entitling [the parent] to
immunity as a matter of law[,]" and "'falls within the realm of
activities which partake of the everyday exigencies of regular
household existence [] that [should be] exempted from simple
negligence liability[.]'" Id. at 141-42 (quoting Foldi, supra,
94 N.J. at 550). However, the Court cautioned that "[c]rossing
a street, driving a car, and a multitude of similar activities
simply do not implicate legitimate child-rearing issues and,
therefore, fall outside the purview of the immunity doctrine."
Id. at 141.
Likewise, we have found a legitimate child-rearing decision
in a number of cases. See Horn v. Price, 255 N.J. Super. 350,
354 (App. Div. 1992) (a mother’s decision whether it was
appropriate for her child to leave the mother's vehicle "clearly
involved parental supervision as [the mother] was in the best
position to know the limitations and capabilities of her own
child") (citing Foldi, supra, 93 N.J. at 546); DeMarco, supra,
274 N.J. Super. at 263 (a mother's decision to continue driving
her daughter to a crisis center for treatment instead of
A-1995-07T2
8
stopping the car when the daughter threatened to jump from it
was a decision "made in [the mother's] capacity as a parent as
to how best to care for her child's emotional needs at the
time[,]" and involved "an essential element of providing
customary child care[,] which should be free from judicial
intrusion."); Verni v. Harry M. Stevens, Inc., 387 N.J. Super.
160, 214 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007)
(a parent's decision to remove a child from a car seat because
the child was ill and soiled her clothing constituted "the type
of ordinary child care decision a parent must make every day.")
Conversely, in France v. A.P.A. Transport Corp., 56 N.J.
500, 507 (1970), our Supreme Court did not find a legitimate
child-rearing decision where two children were injured in an
automobile accident while passengers in their father's car. Id.
at 502. The Court recognized that "there may be areas involving
the exercise of parental authority and care over a child which
should not be justiciable in a court of law." Id. at 507.
However, the Court concluded that parental immunity does not
shield a parent for injuries a child suffers "as a result of the
negligent operation of a motor vehicle." Ibid.
We found no legitimate child-rearing decision in Mancinelli
v. Crosby, 247 N.J. Super. 456 (App. Div. 1991). There, a
seven-year-old child, accompanied by her mother, was permitted
A-1995-07T2
9
to cross a busy street in the middle of the block away from the
crosswalk. Id. at 458. The child sustained injuries when
struck by a car. Ibid. Applying the Foldi analysis, we
concluded that the mother's negligence was not protected by
parental immunity, holding that:
This was not a matter of customary
child care, discipline or supervision. This
was simple, garden-variety negligence by the
parent which exposed both the parent and the
child to injury. Although [the mother] may
have literally exercised parental authority
in transporting her child across the street,
this is not the sort of exercise of parental
authority in child-rearing intended for
protection by the parental immunity
doctrine.

. . . .

This case simply involves a mother's
negligence in attempting to cross a street
with a child at a dangerous location without
making proper observation. Denial of
parental immunity in this action does not
constitute judicial intrusion into a
parent's philosophy of child rearing[,] but
only simple recognition of the parent's
breach of a duty of due care which we all
generally owe to both ourselves and others
in the community.

[Id. at 461.]

In Murray by Olsen v. Shimalla, 231 N.J. Super. 103 (App.
Div. 1989), a ten-year-old boy sued his father for injuries
incurred by the igniting of gasoline obtained from the father’s
unlocked storage shed. Id. at 105. Based on the evidence, we
A-1995-07T2
10
concluded that parental immunity applied if the jury found that
the father negligently exposed his son to the risk of injury
from the misuse of gasoline, by permitting the child access to
and use of the gasoline for his ATV without parental
supervision. Id. at 108-09. Conversely, we concluded that
parental immunity did not apply if the jury found that the
father negligently exposed children, including his son, to the
risk of injury when he stored gasoline in an unlocked shed. Id.
at 109-10.
Applying the Foldi analysis, we conclude that defendant's
conduct is not protected by parental immunity. Under the
version of the facts stipulated for the purpose of the in limine
motion, defendant left his four-year-old child in a smoke-filled
car, strapped in a car seat with no way of escape, exposing him
to injury. This was not a matter of customary child care,
discipline or supervision. It had no connection whatsoever to
any unique philosophy of child-rearing, nor was it designed to
promote Joseph's physical, moral, emotional, and intellectual
growth. This case simply involves a father exposing his son to
the risk of injury by not removing him from the car before the
fire erupted. Whether or not defendant's conduct constitutes
negligence is for a jury to decide.
Reversed and remanded for trial.