Voyeur’s Sidetrack off Sidewalk to Peep in Window at Football Players Not Reasonably Foreseeable Use of Public Property (NJ)

Under common law, citizens could not sue the sovereign.  The New Jersey Tort Claims Act is somewhat more liberal – but with very specific limits.  When  a person is injured due to a dangerous condition of public property, the Act does permit recovery, provided the plaintiff can prove each element enunciated by the Legislature.  Since the Act includes a statement of legislative intent to broadly limit public entity liability, courts are to exercise restraint when novel theories are presented.

In Sherman v. Rutgers, the plaintiff alleged that she fell while walking to her car after attending a Rutgers football game against Louisville.  She had left the game at halftime and was walking along a sidewalk near the Hale athletic center when she observed lights on in the building.  Thinking that she saw football players inside, she took a turn off the sidewalk to get closer to the building to peer into the window.  Intent on the window, she did not pay attention to the ground in front of her.  Bordering the edge of the sidewalk was a retaining wall that protected a well between the sidewalk and the building designed to address waterproofing for the building.  The plaintiff tripped over the retaining wall dislocating both arms and sustaining fractures for which surgery was required.

The plaintiff complained that the area was poorly lit and a dangerous condition of the public property.  Rutgers countered that the plaintiff’s detour from the sidewalk was unforeseeable.  As such, it was clear that the plaintiff did not use the property with objective due care as required by the Act.  Moreover, with no other such accidents reported since the area was constructed in 2007, it had not acted palpably unreasonably, i.e. it was not manifest and obvious that the university should have taken some action to adress any alleged condition.

The Appellate Division affirmed summary judgment for the university.   The court agreed that walking perpendicular to the sidewalk towards the building’s opaque glass walls to look into a window was not a normal, foreseeable use of the walkway.  Had the plaintiff walked along the direction of the sidewalk, she would not have been injured.  Moreover, the lighting would have been sufficient to safely traverse the walkway had she not chosen to peek in the windows to see the football players.  The court was not persuaded she had been drawn off course by “an attractive display” inside the building at eye level.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.