McGivney, Kluger & Cook, P.C. is proud to announce that on October 26, 2018, the firm’s Public Entity Department obtained a summary judgment dismissal of claims against the firm’s client, a school board in Bergen County, New Jersey. The litigation, pending since 2016, concerned a personal injury claim from a minor. The minor plaintiff, who was fifteen years old at the time of the accident, tried to access an out-of-use zip line course, wherein he had to climb a tree approximately 30 feet in the air in order to get to the zip-line. This occurred in the summer months, during the evening hours, when the school was closed. Plaintiff received assistance from his friends to climb the tree, insofar as the first access point was ten feet and nine inches in the air. After climbing the zipline platform, the minor plaintiff, who had carried an undershirt with him up the tree, attempted to use the shirt to create a make-shift zip line trolley to descend down the zip line wire. In the process, he fell thirty-feet and sustained an injury to his leg.
The court dismissed the plaintiff’s claims because of his failure to satisfy the standards of New Jersey’s Tort Claims Act. In particular, the plaintiff’s allegations concerning a “dangerous condition” existing on the property failed to meet the statute’s definition, meaning that the zip line course did not “create a substantial risk of injury when [the property was] 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.
MK&C Partners Gary J. Intoccia and Emily R. Weisslitz successfully argued to the court that the use of the zipline by the minor plaintiff was not done with due care, in a manner that was reasonably foreseeable in which it would be used. Moreover, they argued that the school board had no notice of the claimed dangerous condition, and that failure to protect against the conduct of the minor plaintiff was not “palpably unreasonable.”
Congratulations to Gary and Emily for their success!