No. A-4094-12T3.

ASHANTI ATKINS, a minor by her Guardian ad Litem, JOY GRIFFIN and JOY GRIFFIN, individually, Plaintiffs-Appellants, v. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Decided October 14, 2014.

Attorney(s) appearing for the Case

Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys for appellants ( Richard J. Villanova , on the brief).

Lite DePalma Greenberg, LLC, attorneys for respondent ( Victor A. Afanador , of counsel and on the brief; Danielle Y. Alvarez , on the brief).

Before Judges Grall, Waugh and Nugent.


The opinion of the court was delivered by GRALL, P.J.A.D.

In December 2008, Ashanti Atkins, a six-year old first-grader at the Lincoln School in the State-Operated School District of the District of Newark (District), entered the bathroom designated for girls. Atkins had her teacher's permission and was with another student. As the girls washed their hands, they heard noise outside. Curious, Atkins climbed onto the twenty-six inch high uncovered, cast-iron radiator to look out the window, a portion of which was above the radiator.

Although she felt the heat, she put her foot on the radiator. Atkins' foot slipped, and her leg became wedged behind the radiator. Although Atkins' classmate went for help and returned with a security guard who released her, Atkins sustained third-degree burns on her leg.

Lincoln School is one of twenty-six schools in the District that is over 100 years old. It is heated with cast-iron radiators that reach temperatures as high as 400 degrees. Although some of the radiators in the District have been covered during renovation projects, the majority remain uncovered. There is no evidence that anyone was ever burnt by contact with one of the uncovered radiators, and there is no evidence that anyone had used a radiator as a stepstool, as Atkins did. Finally, there is no evidence that this radiator was malfunctioning, in need of repair or not doing what it was intended to do, which was to reach a temperature that heated the room.

Atkins, through her mother Joy Griffin, and Griffin individually filed a notice of claim required by the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and subsequently a civil complaint commencing an action for damages. The plaintiffs charged the District with breaching its duty of care to maintain the premises in a condition safe for the child; maintaining a "dangerous instrumentality"; breaching its duty to warn; maintaining a nuisance; having absolute liability for injuries resulting from the dangerous instrumentality; and being responsible for medical expenses and loss of services incurred by Griffin.

The trial court dismissed the complaint on the District's motion for summary judgment. Relying upon Levin v. County of Salem, 133 N.J. 35 (1993), the trial court concluded that the radiator was in a physical condition suitable for what it was intended to do, heat the room, and that there was no evidence that would permit a finding that it was palpably unreasonable for the District to leave the radiators uncovered, as they were when originally installed.

A court reviewing a grant of summary judgment applies the same standard as the trial court, which requires the court to view the evidence in a light most favorable to the non-moving party and determine whether the moving party is entitled to judgment as a matter of law. R. 4:46-2; Seals v. Cnty. of Morris, 210 N.J. 157, 162 (2012); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010). In this case, the facts are not in dispute and the question is whether they permit a jury to find in plaintiffs' favor. Because the trial court correctly concluded that the evidence does not support a verdict for plaintiffs, we affirm.

Plaintiffs' argument can fairly be stated as a claim that an uncovered, cast-iron radiator placed in a restroom used by children as young as Atkins is in a dangerous condition and that it was palpably unreasonable for the District to leave it uncovered. They do not dispute their obligation to establish the District's liability under the TCA.

To establish liability under the TCA for an injury from a dangerous condition, a plaintiff must prove

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. 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.]

The term "dangerous condition" is defined 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." N.J.S.A. 59:4-1a. In Levin, the Court rejected an approach to dangerous condition liability that looks to the effects — "that whenever danger exists, so does a dangerous condition of property." 133 N.J. at 49. Thus, we will not take that approach here.

Levin involved an accident that left a person seriously injured when he dove from a bridge into shallow water. Id. at 37. There was evidence that there had been a similarly tragic diving accident involving the same bridge before this incident and evidence the public entities responsible for the bridge had received an expert's report describing prophylactic measures that could be taken to deter would-be divers. Id. at 39.

In Levin, the Court recognized that a physical defect in public property, such as a missing window, combined with the foreseeable neglect or misconduct of third parties, may render the public entity liable for creating a dangerous condition for children in the yard below a missing window through which someone might drop or throw objects. Id. at 49. But the Court determined that the danger presented by the bridge arose "because the bridge was where the shallow water was" and that "no defect in the bridge itself . . . caused or contributed to the tragic accident." Id. at 49.

Here, the heat of the radiator contributed to the injury Atkins sustained. But the hotness of a radiator, much like the danger posed by a bridge over shallow water, is essential to the only purpose served by the fixture — respectively heating the air in the room and crossing the shallow water. The bridge is not designed for use as a diving platform and the radiator is not designed for use as a stepstool. The hotness of the radiator was essential to its sole purpose.

There being no evidence that anyone was ever injured by accidental contact with an uncovered radiator in a District school, plaintiffs cannot establish that the District had the actual or constructive notice of the need to protect against a school-aged child or an adult wedging his or her limb behind a radiator in a bathroom. And there was evidence that the District subsequently covered three cast-iron radiators in Lincoln School for under $1000. But without evidence suggesting a need for such a project, the plaintiff cannot establish that it was palpably unreasonable for the District to forego such a project or to fail to warn the children and adults who might enter a room with an uncovered radiator that a radiator is hot.

We have considered plaintiffs' additional arguments and determined that they have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Plaintiffs' reliance on Coleman v. Steinberg, 54 N.J. 58, 64 (1969), involving a tenant's action against a landlord based on burns the tenant's infant sustained while crawling on the apartment floor, is misplaced. Unlike the tenant, plaintiffs had to establish liability under the TCA.



1. Improperly pled as Newark Public Schools.


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