The Appellate Division recently reviewed the case of a plaintiff who tripped and fell, allegedly fracturing his knee, when he went to get a drink from a water fountain in a Perth Amboy park where he had been playing football with his friends. He appealed the dismissal of his case by the trial court.
The water fountain was situated on top of a concrete pad. Abutting the concrete pad on the grassy side was a control box for the fountain that was flush to the ground. The pad was elevated approximately one inch where the control box cover abutted the pad. The plaintiff claimed that he tripped on this one inch “lip”.
The court found that the slight elevation of the concrete pad at the valve cover could not be reasonably found to have created a substantial risk of injury, and therefore, the plaintiff had failed to present evidence establishing the City’s liability. It also noted that the City’s failure to fix the slight lip did not meet the Tort Claims Act requirement of “palpably unreasonable” conduct.
It should be noted that a different result could easily obtain if the accident was on private property, as the threshold for public entity liability is much higher.