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Wednesday, May 17, 2017

BRYCE PATRICK, ET AL. VS. CITY OF ELIZABETH, ET AL. A-2792-15T1

BRYCE PATRICK, ET AL. VS. CITY OF ELIZABETH, ET AL.
          A-2792-15T1
We address whether a municipality and board of education can be held to a higher standard of care under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, in these circumstances where the minor plaintiff was struck by a motor vehicle as the child crossed the street in a school zone area. Plaintiff alleged that the area was a dangerous condition, and there was inadequate signage to warn motorists of the presence of children. Plaintiff asserts that the school zone imposes a special burden on defendants.
There was no record of complaints to the municipality regarding this area, and the court is satisfied that the entities were entitled to immunity under N.J.S.A. 59:4-2 as there were insufficient proofs provided as to the existence of a dangerous condition. The decision of what type of signage and where to place it is within the discretion accorded to a municipality and is immunized under N.J.S.A. 59:2-3(a).
Defendants are also accorded immunity under N.J.S.A. 59:4-5, which provides that a public entity is not liable for "an injury caused by the failure to provide ordinary traffic signals, signs, markings or similar devices." (emphasis added).
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Plaintiff argues that a sign in a school zone is not an "ordinary" sign subject to immunity under the statute because school zones require a higher standard of care.
Although N.J.S.A. 59:4-5 does not expressly define the term "ordinary," the court uses the dictionary definition of "regular, usual, normal, common, often reoccurring and not characterized by peculiar or unusual circumstances." Black's Law Dictionary 1249 (4th ed. 1957). Nothing was presented that the roadway in question would not fit within this definition of "ordinary."
In addressing plaintiff's argument that a school zone imposes a special burden on defendants, the court notes that when the Legislature has chosen to impose a higher standard of care in a school zone, it has done so explicitly. The court references examples of increased penalties for driving while intoxicated, see N.J.S.A. 39:4-50, and enhanced charges for distributing or possessing controlled dangerous substances within a school zone, see N.J.S.A. 2C:35-7. There is no such differentiation provided in the TCA, and therefore, no evidence of such a legislative intention. Without such intention, the court declines to carve out an exception for liability under the TCA for signage in a school zone or to denote signs in a school zone as anything but "ordinary."