As far as New Jersey Courts are concerned, the manner in which the City of Wildwood Crest inspects its boardwalks is not palpably unreasonable under the Tort Claims Act. In an unpublished decision, decided January 24, 2006, the Appellate Division upheld an Atlantic City
Superior Court decision, which held that a woman’s fall on the boardwalk was barred by the Tort Claims Act. Ultimately, the Appellate Court held that the boardwalk was not a dangerous condition and that the manner in which it was maintained was not “palpably unreasonable.” The facts underlying the claim are mundane enough. On July 18, 2002, plaintiff, a sixty-six years old woman, traveled to Wildwood with her husband, daughter, and two grandsons. Their day was uneventful. At approximately 4:00 or 4:30 p.m., plaintiff, her daughter, and her two grandsons took a walk along the boardwalk because her daughter was looking for a restroom. During this walk the plaintiff was “walking with a sense of urgency,” hoping to facilitate her daughter’s attempt to find the ladies’ room. As plaintiff was nearing the 26th Street end of the boardwalk area, her foot “got hooked on one of the boards,” causing her to fall forward onto the boardwalk. Plaintiff attempted to break her fall with her arm. This attempt was unsuccessful and her entire body struck the boardwalk. At the hospital, x-rays revealed a fracture in her left arm. Plaintiff also suffered numerous bruises. On December 10, 2004, the City of Wildwood, moved for summary judgment. On January 7, 2005, the Court granted Wildwood’s motion. On appeal, plaintiff argued that the evidence was sufficient to demonstrate that Wildwood permitted a dangerous condition to exist on its property and that its failure to remedy that condition was palpably unreasonable. To establish notice under the Tort Claims Act, a plaintiff must demonstrate that as a public entity it either had, “actual knowledge of the existence of the condition and
knew or should have known of its dangerous character… [or] that the condition had existed for such a period of time and was of such an obvious nature that the public entity… should have discovered the condition and its dangerous character.” N.J.S.A. 59:4-3. Further, a “dangerous condition” within the meaning of N.J.S.A. 59:4-2 is “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.” N.J.S.A. 59:4-1. The mere existence of a defect is insufficient to demonstrate a dangerous condition. Only those defects that create a“substantial risk of injury,” are actionable under the Tort Claims Act. A “substantial risk” is one that is “not minor, trivial, or insignificant.” The proofs relevant to the above standard were as follows: plaintiff produced an expert, who offered an opinion that the boardwalk was in a deteriorated condition and that condition took quite some time to develop. He further opined that though proper periodic inspection
of this structure, it could easily have been observed, with the board in question thence being removed and replaced. Additionally, the expert asserted that the condition of the boardwalk area presented a hazardous impediment, or obstruction, within one’s path of travel. In response, Wildwood offered evidence that the boardwalk is swept, cleared of surface debris, and is subjected to periodic inspections. The trial judge found that the plaintiff failed to produce evidence sufficient to establish that Wildwood’s actions in maintaining the Boardwalk were “palpably unreasonable.” N.J.S.A. 59:4-2. New Jersey Courts have construed “palpably unreasonable” governmental behavior as follows: We conclude that the legislative intention was to allow sufficient latitude for resourceful and imaginative management of public resources while affording relief to those injured because of capricious, arbitrary, whimsical or outrageous decisions of public servants. We have no doubt that ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff. Schwartz v. Jordan, 337 N.J. Super. 550, 555 (App. Div.), certif. denied, sub nom., Schwartz v. Plainsboro Twp., 168 N.J. 293 (2001)(quoting Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979)). In essence, the determination of whether a public entity’s conduct was palpably unreasonable turns on “whether no prudent person could approve of the governmental entity’s action or inaction.” In light of the above standard, the Appellate Division agreed with the trial court, asserting that it could not be said that Wildwood’s system of inspecting, repairing, and replacing the boardwalk planks was palpably unreasonable. According to the Supervisor of Construction and Maintenance Repair for Wildwood, the wood in
question displayed signs of ordinary wear from boardwalk traffic, and the type of treated wood that comprises the boardwalk is not, by its nature, completely smooth. The Court reasoned that, in order for the wood to be completely smooth and free of knots, the boards would need constant sanding and/or replacement, which is not feasible for a well-used, public walkway. “The City’s system of inspecting the boardwalk daily and replacing boards that are rocky, soft, or protruding is not a method that, ‘no prudent person could approve of,’ and thus
does not rise to the level of ‘palpably unreasonable action or inaction.’”

Christopher M. Erb, Esq.