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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 – 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. A-0942-24 2 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 A-0942-24 3 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 A-0942-24 4 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. A-0942-24 5 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. A-0942-24 6 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 A-0942-24 7 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). A-0942-24 8 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). A-0942-24 9 "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. A-0942-24 10 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 A-0942-24 11 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 A-0942-24 12 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 A-0942-24 13 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 A-0942-24 14 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 A-0942-24 15 combat vandalism of S-hooks in public parks. However, plaintiff's allocation of public resources argument is based on the same dangerous condition – unsafe S- hooks on swing sets – 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. A-0942-24 16