NOT FOR PUBLICATION
PER CURIAM.
Plaintiff, Joan M. Kenny, and her husband, Timothy Kenny,1 appeal from the February 16, 2011 orders granting summary judgment to defendants Township of Bridgewater (Bridgewater) and the Bridgewater Football League (BFL), also known as the Bridgewater Golden Eagles, and dismissing her complaint for personal injuries with prejudice. For the reasons that follow, we affirm.
Viewed most favorably to plaintiff, see Rule 4:46-2(c), Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment motion record discloses the following facts. Plaintiff brought this action against Bridgewater and the BFL due to an injury she sustained as a result of a fall at Harry Ally2 Memorial Park (Harry Ally or the park), which Bridgewater owned and operated. The BFL, a nonprofit educational organization, ran a youth football league that held games in the park for two months every year as authorized by a facilities permit issued by Bridgewater. While the permit allowed the BFL to use the park for practice and Saturday games, the league had no responsibility for maintenance of the park.
The BFL also operated a concession stand, known as the Snack Shack, where it sold food and drinks from a mobile trailer during the Saturday football games to raise money for the league. Everyone who worked at the Snack Shack was a volunteer, generally a parent of children playing in the league. Bridgewater determined the location of the mobile concession stand, which was largely dictated by the availability of electricity for the trailer.
Harry Ally, a large municipal recreational facility with tennis and basketball courts, was owned, operated, controlled, and maintained by Bridgewater. Of import to this case, there were two multi-purpose athletic fields, the westerly or upper field, separated from the easterly or lower field along its entire length by a pathway and an embankment. In order to get from the upper field to the lower field, members of the public could walk down the embankment, or could avoid traversing the grassy slope by taking a longer route around the field. The Snack Shack was located on the lower field on level land near the steepest part of the embankment.
Bridgewater developed Harry Ally in 1977 in accordance with design plans duly approved by the Town Council and the New Jersey Department of Environmental Protection. The original plans, dated April 29, 1976, contained grading designs to address drainage issues and included the graded embankment area between the two athletic fields. The grading design has remained unchanged since the original construction and was consistent with the original site plans. Bridgewater was unaware of any prior injuries on the embankment or of complaints by members of the public that the embankment created a dangerous condition.
On September 22, 2007, plaintiff came to the park with her five-year-old son, two daughters and husband, because her son was scheduled to play for one of the league's flag football teams on the upper field. Plaintiff had volunteered to help at the Snack Shack because her son was scheduled to play that day. She left her family on the upper field and proceeded toward the Snack Shack on the lower field. She took two steps off the upper field path onto the sloped embankment, which was wet from morning dew, when she slid back and suddenly was "in excruciating pain laying on the ground." Plaintiff received emergency medical care and was immediately taken to the hospital for additional treatment for serious injuries.
In his report, plaintiff's expert engineer, Len McCuen, P.E., opined that while there was nothing inherently wrong with the embankment, the placement of the concession stand on the lower field enticed people to walk toward it from the upper field, causing the embankment to become a walkway or ramp that did not meet the construction codes for such structures. In his opinion, plaintiff fell due to the steepness of the slope of the nearby embankment. He also noted that the steepest part of the embankment near the concession stand had a slope of thirty degrees, which constituted a walkway hazard. He concluded that the use of the embankment as a means of access to the concession stand created a dangerous condition on public property that fell below accepted industry standards for similar recreational and commercial facilities and resulted in a risk of injury that was palpably unreasonable.
After the completion of discovery, both defendants filed motions for summary judgment. The trial judge found Bridgewater had immunity under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 14-4, because there was no evidence that the property was in a dangerous condition, and if a dangerous condition existed, there was no evidence that an employee's negligence caused it or that the public entity had notice of the condition. The judge also held that Bridgewater was entitled to plan or design immunity pursuant to N.J.S.A. 59:4-6. In the case of BFL, the judge held that the league had immunity under the New Jersey Charitable Immunity Act, N.J.S.A. 2A:53A-7 to-11, because the BFL was a non-profit corporation organized for educational purposes and plaintiff was a beneficiary of its works. Additionally, the judge found plaintiff had failed to demonstrate negligence by BFL, because the league owed no duty of care to plaintiff. Accordingly, the trial judge entered orders granting both defendants' motions for summary judgment and dismissing the complaint with prejudice. This appeal followed.
In reviewing a grant of summary judgment, we apply the same standard as the trial judge in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in a "light most favorable to the non-moving party." Henry v. N. J. Dep't of Human Servs., 204 N.J. 320, 329 (2010) (citing Brill, supra, 142 N.J. at 523). Because our review of the issues of law is de novo, we accord no special deference to the motion judge's legal conclusions. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).
Plaintiff's negligence claim against Bridgewater implicates the TCA, which provides general immunity for all governmental bodies, except in circumstances where the Legislature has specifically provided for liability. See N.J.S.A. 59:1-2 and 2-1; Bell v. Bell, 83 N.J. 417, 423 (1980). "Under the Act, immunity is the norm, unless liability is provided for by the Act." Davenport v. Borough of Closter, 294 N.J.Super. 635, 637 (App. Div. 1996). The public entity bears the burden of proof for establishing immunity. Bligen v. Jersey City Housing Authority, 131 N.J. 124, 128 (1993). In determining if a public entity is immune, first we "identify the culpable cause of the accident and... ask if that `identified cause or condition is one that the Legislature intended to immunize.'" Levin v. Cnty. of Salem, 133 N.J. 35, 43 (1993) (quoting Weiss v. N. J. Transit, 128 N.J. 376, 380 (1992)).
N.J.S.A. 59:4-2 permits liability for an injury caused by a dangerous condition of a public entity's property if: the condition existed when the injury occurred; either an employee of the public entity negligently or wrongfully created the dangerous condition or the public entity had actual or constructive notice of the condition; and the action the entity took to protect against the condition, or its failure to act, was palpably unreasonable. Polzo v. Cnty. of Essex, 196 N.J. 569, 578-79 (2008). However, N.J.S.A. 59:4-6 provides a public entity immunity for a dangerous condition that is part of an approved plan or design. Thus, if we find that the embankment was covered by this provision, we need not determine whether plaintiff presented a prima facie case of dangerous condition liability.
Under N.J.S.A. 59:4-6(a), a public entity is not liable for injury on its premises "either in its original construction or any improvement thereto," when its plan or design was approved in advance of the construction or improvement by "the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval." Ibid. "Application of plan-and-design immunity turns on whether the public entity has approved the feature in question so as to immunize it from challenge." Manna v. State of N.J., 129 N.J. 341, 353 (1992). The defect that caused the injury must be in the plans before immunity is conferred. Thompson v. Newark Hous. Auth., 108 N.J. 525, 536 (1987). However, the public entity need not show that a particular feature of the plan had been considered and rejected. Id. at 537; see Manna, supra, 129 N.J. at 358 ("[I]mmunity for an original design does not fail because alternative options regarding the feature of concern... were not considered in the original plans."). Instead, the evidence must show merely that the entity had considered "the general condition about which a plaintiff complains in formulating the original plan or design." Luczak v. Twp. of Evesham, 311 N.J.Super. 103, 109 (App. Div.), certif. denied, 156 N.J. 407 (1998).
Plaintiff does not dispute that the Harry Ally plan, including the grading and location of the embankment, was duly approved. Nevertheless, plaintiff argues that plan or design immunity does not apply since the governing body's approval of the embankment did not include a concession stand placed near the steepest part of its slope. We are not persuaded. We find that plan or design immunity attached to the embankment at the time of construction, and "no subsequent event or change of condition" that may have made the design more dangerous should strip the town of this immunity. Manna, supra, 129 N.J. at 355.
Generally, immunity is preserved even if the design presents a dangerous condition in light of a new context. Seals v. Cnty. of Morris, 210 N.J. 157, 180 (2012); Thompson, supra, 108 N.J. at 532-33. See also Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985) (plan or design immunity protected the State from claims where a curve in a road built for a thirty-mile speed limit became dangerous at a fifty-mile speed limit). See also Ciambrone v. State, Dep't of Transport., 233 N.J.Super. 101, 108-09 (App. Div.) (immunity preserved where timing of duly approved traffic signals became dangerous over time), certif. denied, 117 N.J. 664 (1989).
Plaintiff's expert maintained that the immediate cause of the accident was plaintiff slipping on a slope that was too steep to safely descend. Hence, plan or design immunity attached here because the plan "sufficiently embrace[d] the condition that is the subject matter of plaintiff's claim," Thompson, supra, 108 N.J. at 537, i.e., the location and the slope of the embankment. The temporary placement of a concession stand near the embankment was an external change of conditions or context that did not pierce the immunity. Id. at 532-33; Kolitch, supra, 100 N.J. at 545; Ciambrone, supra, 233 N.J. Super. at 108-09.
Hence, Bridgewater was entitled to plan or design immunity, and once that immunity attached, it trumped all issues of liability for the dangerous condition, Seal, supra, 210 N.J. at 180; see also Manna, supra, 129 N.J. at 355 (once immunity attaches, it is not lost even if later events demonstrate the design resulted in the creation of a dangerous condition); Weiss v. N.J. Transit, supra, 128 N.J. at 381 (liability is negated if the public entity possesses corresponding immunity). Accordingly, we find that Bridgewater's motion for summary judgment was appropriately granted, and the issue of whether the accident occurred under circumstances giving rise to dangerous condition liability under N.J.S.A. 59:4-2 need not be addressed.
Additionally, the trial judge granted the BFL's motion for summary judgment based upon the league owing no duty of care to plaintiff and having charitable immunity. We first examine whether plaintiff has presented evidence of the necessary elements demonstrating negligence by the BFL.
A common law cause of action for negligence has four elements: (1) a duty of care owed to the plaintiff by the defendant; (2) a breach of that duty by the defendant, (3) proximate cause, and (4) actual damages. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 400 (2009). In the negligence context, "[a] duty is an obligation imposed by law requiring one party to conform to a particular standard of conduct toward another." Acuna v. Turkish, 192 N.J. 399, 413 (2007) (internal citations and quotation marks omitted). Whether a duty exists with respect to a particular plaintiff "is generally a matter for a court to decide." Ibid.
We approach the question of duty flexibly and with fact-sensitive consideration of public policy and fairness. Hopkins v. Fox and Lazo Realtors, 132 N.J. 426, 435-41 (1993). We must examine such factors as "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Id. at 439. Additionally, the "existence of actual knowledge of an unsafe condition can be extremely important in considering the fairness in imposing a duty of care." Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 576-7 (1996).
In this case, after weighing and balancing the various factors, we agree with the trial judge that under the circumstances here the BFL did not owe plaintiff a duty of care. The BFL is a nonprofit youth football league that uses the park a few days per week for two months in the fall. The BFL did not design, construct, maintain or control the park, including the location and slope of the embankment that many people used daily to get from the upper field to the lower field. As the trial judge pointed out, the injury did not occur at or near the Snack Shack but a good distance away on the grassy embankment controlled by Bridgewater. There is no evidence that the BFL acted as an agent for Bridgewater or that the league had actual knowledge of a dangerous condition. Nor has plaintiff provided any evidence that the BFL should have known of an unsafe condition, especially since the public has used the embankment to travel between the upper and lower fields for over thirty years and the BFL has used it for two years without reports of injuries from walking across the slope. We conclude that considerations of fairness and public policy dictate that no duty be imposed here as the BFL did not have authority or control over site of the injury or actual knowledge of any unsafe condition.
As we have determined that plaintiff has not proven one of the necessary elements of negligence, we need not reach the question of whether as a matter of law the BFL is entitled to immunity under the New Jersey Charitable Immunity Act, N.J.S.A. 2A:53A-7 to-11.
Affirmed.
