J.O. Etc. v. City of Vineland
CourtNew Jersey Superior Court Appellate Division
Date FiledNovember 12, 2026
DocketA-0942-24
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0942-24
J.O., by Guardian Ad Litem, J.O.,
Plaintiff-Appellant,
v.
CITY OF VINELAND,
Defendant-Respondent,
and
CITY OF VINELAND
RECREATION COMMISSION,
Defendant.
______________________________
Submitted October 1, 2026 β Decided November 12, 2026
Before Judges DeAlmeida and Augostini.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. L-0778-21.
Robert I. Segal, attorneys for appellant (Thomas S.
Renneisen, on the brief).
Brown & Connery, LLP, attorneys for respondent (Gina
M. Roswell and Joseph D. Clifford, on the brief).
PER CURIAM
Plaintiff J.O.,1 by her guardian ad litem, appeals from a November 8, 2024
Law Division order granting summary judgment to defendant City of Vineland
and dismissing her personal injury claims pursuant to the Tort Claims Act
(TCA), N.J.S.A. 59:1-1 to :12-3. We affirm.
I.
On March 27, 2021, plaintiff, then eleven years old, was using the swing
set at the playground in Landis Park, which is owned by defendant. As she
swung, the seat detached from the metal chain connecting it to the swing set.
Plaintiff fell to the ground, fracturing her ankle.
Plaintiff's parents took her to a hospital for treatment. Less than a week
later, she underwent open reduction and internal fixation surgery to treat the
fractured fibula and tibia of her right ankle. Plaintiff alleges she is permanently
injured by the fall, unable to resume normal physical activity, periodically wears
a brace, and has a scar from the injury.
1
Because plaintiff is a minor, we use initials to protect her privacy.
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The day after the accident, William Dechen, defendant's Supervisor of
Recreation Maintenance, was working on the baseball fields in Landis Park
when he noticed the swing's seat hanging by a chain on only one side. The other
chain was tied in a knot around the top of the swing set's frame. Dechen
inspected the swing and the S-hook which had attached it to the chain. It
appeared to Dechen the S-hook, which showed no signs of wear and tear,
weakness, or rust, had been pried open just enough to allow the chain to come
through the hook and detach the swing. He reconnected the seat to the chain
and tightened the S-hook. Dechen documented the suspected vandalism and his
repair on a maintenance department playground safety checklist.
In accordance with defendant's policies and procedures, Dechen inspected
defendant's nineteen municipal parks, twelve of which have playgrounds with
swing sets, monthly. During inspections, Dechen spent approximately twenty
minutes inspecting each playground in each park. In his over thirty-five years
of experience, Dechen encountered a swing's S-hook becoming undone once
every two to five years. Based on the manufacturer's guidance, Dechen replaced
S-hooks on swing sets only when they were "worn out." Otherwise, he tightened
S-hooks that appeared loosely attached to swings. There is no evidence in the
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record anyone was injured on a swing set in any of defendant's parks in the
eighteen years prior to plaintiff's fall.
On March 4, 2021, three weeks before plaintiff's fall, Dechen inspected
the Landis Park playground. In a contemporaneous report, he stated "ok" on the
rows for inspection of whether "swing hangers and chains" were "worn" and
whether there were any "missing, damaged or loose swing seats." Dechen also
indicated there were no problems with the S-hooks connecting swings to the
swing set.
On November 19, 2021, plaintiff filed a complaint against defendant in
the Law Division. She alleged defendant caused or permitted a dangerous
condition to exist on its property, failed to maintain its property in a reasonable
and prudent manner, was negligent in its design and construction of the swing
set, failed to keep its property in good order, did not warn plaintiff of the
dangerous condition on its property, and was negligent or careless in the hiring,
training, and monitoring of its employees. Plaintiff alleged defendant's conduct
caused her injuries and sought compensatory damages, counsel fees, and costs.
After discovery, defendant moved for summary judgment. It argued it
was immune from plaintiff's claims under three provisions of the TCA:
allocation of existing resources, N.J.S.A. 59:2-3(d), failure to inspect any
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property or inadequate or negligent inspection of any property, N.J.S.A. 59:2-6,
and dangerous condition of public property, N.J.S.A. 59:4-2. Plaintiff opposed
the motion.
On November 8, 2024, the court issued an oral decision granting
defendant's motion. The court found:
[T]here's no dispute . . . [defendant] inspected the . . .
swing set three weeks prior to the . . . plaintiff's fall.
Not only that, but . . . it's undisputed . . . [defendant]
had a regular schedule or regular inspections of the
public park. It had a process in place for how to address
any deficiencies that were found. This is not a case
where [defendant] just put the swing set out there and
let the kids play . . . without any inspections, any, even
search for any defects. There was a regular and
frequent process for inspection of . . . all of the park,
but there was [a] specific procedure in place for
inspection of the playground equipment. In testimony,
it was undisputed that the employee of [defendant] . . .
complied with that procedure and inspected this very
swing three weeks prior to the fall.
Noting the absence of an expert witness offering an opinion that defendant
deviated from an accepted standard of practice for inspecting and maintaining
public playgrounds, the court found a jury could not find defendant or its
employees acted in a palpably unreasonable manner. Thus, the court concluded
plaintiff could not establish an essential element of a dangerous condition of
public property claim.
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The court also found plaintiff proffered insufficient evidence establishing
a negligent or wrongful act or omission of defendant or its employee created a
dangerous condition on public property. The court noted there was no evidence
in the record establishing what caused the condition of the S-hook involved in
plaintiff's fall. Nor did the motion record contain evidence defendant was on
actual or constructive notice of a dangerous condition of its property in time to
take measures to protect against the condition. The court noted plaintiff offered
no evidence the S-hook was in a dangerous condition of such an obvious nature
and for such a long period of time that a public entity exercising due care would
have discovered the condition and ameliorated the danger.
The court also found it was beyond the ken of the average juror to
determine, without expert testimony, Dechen should have replaced the S-hook
on the swing during an inspection prior to plaintiff's fall. The court found there
was no evidence the S-hook on the swing from which plaintiff fell was
previously tightened by Dechen or should have been replaced by him. Thus, the
court concluded any determination by the jury defendant did not properly
inspect or maintain the S-hook would be speculation. Plaintiff, therefore, could
not prove any of the statutory elements necessary to overcome defendant's
immunity for injuries caused by a dangerous condition of its property.
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The court rejected plaintiff's argument defendant's liability could be
established by the doctrine of res ipsa loquitur. The court found the doctrine
governed the adequacy of evidence in some negligence cases but was not a
theory of liability. In addition, the court noted that in Rocco v. N.J. Transit Rail
Operations, Inc., 330 N.J. Super. 320, 340 (App. Div. 2000), we held the
doctrine is not normally available to establish liability against a public entity for
a dangerous condition of public property.
Next, the court found because plaintiff could not establish dangerous
condition liability, there was no question defendant was immune from a claim it
failed to inspect or inadequately or negligently inspected the swing set. Having
produced no evidence on which a jury could find defendant's inspection program
for playground equipment was inadequate or negligently administered, plaintiff
could not overcome the inspection immunity provision in N.J.S.A. 59:2 -6.
Finally, the court found the record contained insufficient facts on which
it could grant summary judgment to either party on the question of whether
defendant was entitled to immunity under the allocation of public resources
provision of the TCA. The court concluded a determination of the applicability
of that provision required findings of fact with respect to the resources available
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to defendant and how it chose to allocate those resources. 2 A November 8, 2024
order memorialized the court's decision.
This appeal followed. Plaintiff argues: (1) she produced sufficient
circumstantial evidence on which a jury could find defendant's actions or
omissions with respect to protecting against a dangerous condition of its
property were palpably unreasonable; (2) she should be permitted to establish
defendant's negligence under the doctrine of res ipsa loquitor; and (3) the record
contains sufficient evidence on which a jury could find defendant is not entitled
to immunity under the allocation of public resources provision of the TCA.
II.
We review a grant of summary judgment de novo, applying the same
standard as the motion court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That
standard requires us to "determine whether 'the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
2
Although its decision with respect to defendant's immunity precluded
plaintiff's claims, for the sake of completeness, the motion court found the
question of whether plaintiff suffered permanent injuries within the meaning of
the TCA could not be resolved on summary judgment and would be submitted
to the jury in the event it was determined on appeal defendant was not entitled
to immunity. See Nieves v. Off. of the Pub. Def., 241 N.J. 567 (2020).
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the moving party is entitled to a judgment or order as a matter of law.'" Branch
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).
"Summary judgment should be granted . . . 'against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the motion court's legal
analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).
Self-serving assertions unsupported by evidence are insufficient to create
a genuine issue of material fact. Miller v. Bank of Am. Home Loan Servicing,
L.P., 439 N.J. Super. 540, 551 (App. Div. 2015). "Competent opposition
requires 'competent evidential material' beyond mere 'speculation' and 'fanciful
arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App.
Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374
N.J. Super. 556, 563 (App. Div. 2005)). We review the record "based on our
consideration of the evidence in the light most favorable to the parties opposing
summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523
(1995).
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"Generally, immunity for public entities is the rule and liability is the
exception." Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999). "[P]ublic
entities shall only be liable for their negligence within the limitations of " the
TCA. N.J.S.A. 59:1-2. The requirements of the TCA are "stringent" and place
a "heavy burden" on plaintiffs seeking to establish public entity liability. Bligen
v. Jersey City Hous. Auth., 131 N.J. 124, 136 (1993).
Through enactment of N.J.S.A. 59:4-2, a provision of the TCA, the
Legislature waived public entity immunity for injuries caused by a dangerous
condition of public property in limited circumstances. The statute provides, in
relevant part, as follows:
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.
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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.]
N.J.S.A. 59:4-1(a) defines a dangerous condition 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."
To pose a "'substantial risk of injury' a condition of property cannot be minor,
trivial, or insignificant. However, the defect cannot be viewed in a vacuum.
Instead, it must be considered together with the anticipated use of the property
. . . ." Atalese v. Long Beach Twp., 365 N.J. Super. 1, 5 (App. Div. 2003).
N.J.S.A. 59:4-3 establishes when a public entity will be deemed to have
actual or constructive notice of a dangerous condition of its property:
a. A public entity shall be deemed to have actual
notice of a dangerous condition within the meaning of
subsection b. of section 59:4-2 if it had actual
knowledge of the existence of the condition and knew
or should have known of its dangerous character.
b. A public entity shall be deemed to have
constructive notice of a dangerous condition within the
meaning of subsection b. of section 59:4-2 only if the
plaintiff establishes that the condition had existed for
such a period of time and was of such an obvious nature
that the public entity, in the exercise of due care, should
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have discovered the condition and its dangerous
character.
Finally, to establish palpably unreasonable behavior, a plaintiff has a
"steep burden" to prove "more than ordinary negligence." Coyne v. State, Dep't
of Transp., 182 N.J. 481, 493 (2005). Palpably unreasonable implies behavior
by a public entity "'that is patently unacceptable under any circumstance' and
that 'it must be manifest and obvious that no prudent person would approve of
its course of action or inaction.'" Holloway v. State, 125 N.J. 386, 403-04 (1991)
(quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)) (citations omitted).
An analysis of whether a public entity's behavior is palpably unreasonable
involves "not only what was done" but also the entity's "motivating concerns."
Schwartz v. Jordan, 337 N.J. Super. 550, 563 (App. Div. 2001). "Simply put,
the greater the risk of danger known by the [the public entity] and sought to be
remedied, the greater the need for urgency." Ibid.
Although whether a public entity acted in a palpably unreasonable manner
is often decided by a jury, the court may decide the question in appropriate cases.
Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-51 (App. Div. 2002).
"[L]ike any question of fact, the determination of palpable unreasonableness is
subject to a preliminary assessment by the court as to whether it can reasonably
be made by a fact-finder considering the evidence." Charney v. City of
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Wildwood, 732 F. Supp. 2d 448, 457 (D.N.J. 2010) (citing Black v. Borough of
Atlantic Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993)).
Having reviewed the record, we agree with the motion court's conclusion
plaintiff produced insufficient evidence on which a jury could find defendant
was not entitled to immunity under the TCA. Plaintiff argues a jury could find
defendant's actions or omissions with respect to the dangerous condition created
by the S-hook were palpably unreasonable. She claims a jury, without the
assistance of expert testimony, could find Dechen's inspection of Landis Park
"was woefully and transparently deficient" because he inspected the twenty-
five-acre property in about twenty minutes. Plaintiff, however, misstates the
record. Dechen testified he inspected the playground at Landis Park, not the
entire park, in about twenty minutes.
In addition, plaintiff argues Dechen was not certified as a playground
inspector and tightened loose S-hooks instead of replacing them, facts sufficient
to support a jury finding of palpably unreasonable behavior. However, in the
absence of expert testimony opining that defendant's inspection program
deviated from acceptable standards, any finding by the jury Dechen was not
qualified to inspect the swing set and should have replaced S-hooks instead of
tightening them would be speculation. Moreover, the motion record contained
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no evidence the S-hook involved in plaintiff's fall was inadequately inspected,
tightened instead of replaced, worn out, or defective. To the contrary, the record
establishes Dechen inspected the S-hook on the swing from which plaintiff fell
three weeks prior to the incident and determined it was not in need of repair or
replacement. We therefore agree with the motion court's conclusion the record
contained no evidence on which a jury could determine defendant or Dechen
acted in a palpably unreasonable manner with respect to the safety of the S-hook
that contributed to plaintiff's fall.
In addition, as the motion court correctly found, our holding in Rocco,
330 N.J. Super. at 327, precludes application of the doctrine of res ipsa loquitor
to plaintiff's claims. In that case, the plaintiff was injured by a door on a New
Jersey Transit passenger train. Id. at 329-30. He argued he could rely on the
doctrine of res ipsa loquitur to establish the agency's liability under the
dangerous condition of public property provision of the TCA. Id. at 338. Noting
that establishing a public entity's liability under the TCA "requires proofs that
go beyond those necessary to permit a res ipsa loquitur inference," we held the
doctrine "is not normally available in an action against a public entity grounded
upon a dangerous condition of public property." Id. at 340 (footnote omitted).
Plaintiff makes no convincing argument we should depart from this holding or
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create an exception for her claims. She must overcome the high bar set by the
TCA to subject defendant to liability for a dangerous condition of its property.
Nor are we persuaded by plaintiff's argument the record contains
sufficient evidence to overcome the immunity provided to defendant under
N.J.S.A. 59:2-6. That statute provides:
A public entity is not liable for injury caused by its
failure to make an inspection, or by reason of making
an inadequate or negligent inspection of any property;
provided, however, that nothing in this section shall
exonerate a public entity from liability for negligence
during the course of, but outside the scope of, any
inspection conducted by it, nor shall this section
exonerate a public entity from liability for failure to
protect against a dangerous condition as provided in
chapter 4.
[N.J.S.A. 59:2-6.]
Plaintiff's claim that Dechen negligently inspected the Landis Park playground
is precluded by this provision.
Finally, because we agree with the motion court's determination defendant
is entitled to immunity under the dangerous condition of public property
provision of the TCA, we need not decide whether the record was sufficient for
a determination of whether defendant was also immune under the allocation of
public resources provision of the statute. Plaintiff argues a jury could find it
was palpably unreasonable for defendant not to allocate additional resources to
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combat vandalism of S-hooks in public parks. However, plaintiff's allocation of
public resources argument is based on the same dangerous condition β unsafe S-
hooks on swing sets β that underlies her dangerous condition of public property
claim. As we noted above, we agree with the motion court's conclusion no jury
could find based on the motion record defendant's monthly playground
inspection program was a palpably unreasonable method of detecting and
protecting against the dangerous condition plaintiff alleges caused her injury ,
whether that condition was caused by vandalism, ordinary wear and tear, or
another factor.
Affirmed.
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