Smith v. Fireworks by Girone, Inc.

850 A.2d 456, 180 N.J. 199, 2004 N.J. LEXIS 690
CourtSupreme Court of New Jersey
DecidedJune 23, 2004
StatusPublished
Cited by30 cases

This text of 850 A.2d 456 (Smith v. Fireworks by Girone, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Fireworks by Girone, Inc., 850 A.2d 456, 180 N.J. 199, 2004 N.J. LEXIS 690 (N.J. 2004).

Opinions

Justice LONG

delivered the opinion of the Court.

On this appeal we are asked to interpret the language of the New Jersey Tort Claims Act (TCA) that requires, as a prerequisite to public entity liability, that the public property must be in a “dangerous condition at the time of the injury.” N.J.S.A. 59:4-2. Here, the ten-year-old plaintiff suffered severe damage to his left hand after successfully igniting a firework he found in a municipal park following a municipal fireworks display. The explosion occurred on private property over a month after the child removed [203]*203the firework from the park. Plaintiff sued and the public entity moved for summary judgment claiming, among other things, that plaintiff failed to satisfy the requirement in N.J.SA 59:4-2 that the public entity’s property be in a dangerous condition at the time of the injury. The trial court denied the motion and a jury awarded a substantial verdict in plaintiffs favor.

The public entity appealed and a divided panel of the Appellate Division reversed. The majority held that the firework was neither owned nor controlled by the public entity and that the infant plaintiffs removal of it from the park prevented the conclusion that the public property (the park) remained in a “dangerous condition at the time of the injury.” The dissent countered that plaintiffs injury was an inevitable and foreseeable result of harmful “contact” or “exposure” to a dangerous condition on public property and fell squarely within the contemplation of the TCA.

Because we are satisfied that the conclusion of the dissenting opinion more closely conforms with the legislative intent underlying that Act, we now reverse.

I

In 1997, plaintiff Karen Smith, individually and in her capacity as the guardian ad litem of Brenden Wasniewski (collectively plaintiffs), filed a lawsuit against the Township of Deptford, Dept-ford Parks and Recreation, Deptford Fun Day Committee (collectively Deptford), and Fireworks by Girone, Inc. (Girone), alleging that Brenden was injured as a result of a dangerous condition on public property for which all named defendants were responsible.

The facts underlying the claim essentially are uncontroverted and are distilled from the summary judgment documents and proceedings. Deptford owns and maintains Fasola Park, a recreational area containing basketball courts, baseball fields, a swimming pool, walking trail, and picnic area. The park is the setting for “Deptford Day,” an annual festival held in May. To celebrate Deptford’s tricentennial, the 1995 Deptford Day was scheduled to [204]*204culminate in the largest fireworks display ever held in connection with that event.

In anticipation of Deptford Day, Deptford entered into a contract with Girone to conduct the fireworks display. Under the terms of the contract, Girone guaranteed a “Thorough Check Of The Area For Any Misfired Shells” on the night of the show. Deptford, in turn, assumed responsibility for the post-display clean-up: “CUSTOMER will also be RESPONSIBLE for all POST DISPLAY CLEAN-UP with respect to removal of debris and POLICING of area AT FIRST LIGHT following the exhibition.” Both the Fire Marshal and the President of Girone testified in depositions that if unspent shells were found, Girone was to be notified immediately to come and reclaim them; municipal officials were not to touch those items.

Following the display on the evening of May 20, Girone employees and Deptford’s Fire Marshal, using high-powered lamps provided by the Fire Department, conducted a post-display search. That search resulted in the recovery of at least six potentially live fireworks, all of which were turned over to Girone. The following morning, the Fire Marshal returned to the park to search for additional fireworks in accordance with the contract. After two hours, although he found debris, he found no more unexploded charges.

A week after the display, Brenden Wasniewski picked up fireworks and firework debris, both on and near the launch site at Fasola Park. He disposed of all but the largest firework, ultimately hiding it at home. On July 3, Brenden and a friend took the firework to a nearby wooded area, treated it with gasoline and repeatedly cut away the cardboard encasing the actual charge. Eventually the firework exploded in Brenden’s left hand, causing severe injuries. Subsequently, a private investigator hired by plaintiffs found an additional unspent firework in Fasola Park.

After extensive discovery, Deptford moved for summary judgment on a variety of issues. For purposes of this appeal, the pertinent claim is Deptford’s assertion that plaintiffs’ cause of [205]*205action is precluded because it fails to satisfy the TCA requirement that the public property be in a dangerous condition at the time of the injury.

The trial court denied the motion, holding that the combination of the firework and the park constituted a consolidated dangerous condition that satisfied the TCA. According to the court, that dangerous condition was capable of creating a “continuing injury” that began when Brenden picked up the firework and ended when it exploded weeks later.

Plaintiffs settled their claims against Girone and the case against Deptford proceeded to a trial on all issues. The jury returned a verdict in plaintiffs’ favor. In so doing, it found as follows: (1) after the fireworks display, the unexploded firework created a dangerous condition at Fasola Park; (2) the dangerous condition was a proximate cause of Brenden’s accident; (3) the dangerous condition created a foreseeable risk of injury; (4) Deptford’s action or inaction was palpably unreasonable; (5) Girone was negligent; (6) Girone’s negligence was a proximate cause of Brenden’s injuries; (7) Brenden was negligent; and (8) his negligence was a proximate cause of his own injuries. The jury returned a $1,600,000 verdict for plaintiffs and apportioned liability to Deptford at 56%, Girone at 33%, and Brenden at 11%; that is, $896,000 against Deptford, $528,000 against Girone, with $176,000 allocated to Brenden’s comparative negligence.

Deptford appealed and a divided panel of the Appellate Division reversed the denial of the motion for summary judgment. The majority presumed for the purposes of its opinion that a dangerous condition existed at Fasola Park by virtue of the unexploded firework. The court went on to hold that Deptford did not “own” the firework and that when Brenden removed the firework from the park the public entity lost “control” of it. Concomitantly, the court concluded that the park was not in a “dangerous condition at the time of the injury” because Brenden’s removal of the firework rendered it safe at that critical point.

[206]*206In reaching an opposite conclusion, Judge Wecker, dissenting, stated:

In my view, it is counterintuitive to conclude that by picking up the firework and taking it home with him (thereby curing the dangers to others), the very danger that the entity’s negligence created, Brenden has relieved the town of all responsibility for its own palpably unreasonable failure to clean up after the fireworks display.
The temporal separation between Brenden’s picking up the firework and his actually setting it off is what the majority finds fatal to his recovery. To the contrary, I view that separation in time as part of the logical, predictable chain of events prompted by the dangerous condition.

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Bluebook (online)
850 A.2d 456, 180 N.J. 199, 2004 N.J. LEXIS 690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-fireworks-by-girone-inc-nj-2004.