BONILLA v. THE STATE OF NEW JERSEY et al
OPINION filed. Signed by Judge Freda L. Wolfson on 7/19/2017. (mmh)
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THE STATE OF NEW JERSEY, et al.,
Civil Action No. 15-6795(FLW)
WOLFSON, United States District Judge:
This matter is before the Court upon a motion for summary judgment filed by Defendants
Jones Farm, AgriIndustries, Commissioner Gary M. Lanigan (improperly named as Raymond
Lanigan) (“Defendant Lanigan”), the Department of Corrections (“NJDOC”), and the State of
New Jersey (collectively, the “Corrections Defendants”). ECF No. 23. Plaintiff Raymond
Bonilla (“Plaintiff”) opposes the motion. ECF No. 26. The Court has decided the motion based
on the written submissions of the parties and without oral argument, pursuant to Local Civil Rule
78.1(b). For the reasons stated herein, the Corrections Defendants’ motion for summary
judgment will be denied.
This case arises out an injury that Plaintiff allegedly suffered while he was an inmate at
Jones Farm, where he was assigned to perform services at the milk processing plant (the
“Plant”). See Compl. ¶¶ 9–10. Plaintiff alleges that he sustained a serious injury to his hand
while operating a milk packing machine (the “Machine”). Id. at ¶ 18. Plaintiff further alleges
that he was not properly trained on how to operate the Machine, was not adequately supervised
while operating the Machine, and that the Machine itself was not adequately maintained and was
defective or dangerous. Id. at ¶¶ 19–20.
Except where otherwise noted, the following facts are undisputed. On September 11,
2014, Plaintiff reported to work at the Plant. Def.’s Statement of Material Facts (“Def.’s
SOMF”) at ¶ 2, ECF No. 23-2; Pl.’s Resp. to Def.’s Statement of Material Facts (“Pl.’s Resp.
SOMF”) at ¶ 2, ECF No. 26-1. At his deposition, Plaintiff testified that, after reporting to work
on September 11, he sustained injuries to his hand while attempting to unclog milk cartons that
had become wedged in the Machine, causing it to jam. Deposition of Raymond Bonilla
(“Bonilla Dep.”) at 49:15-50:23; 53:23-54:18, ECF No. 26-1; Pl.’s Supp. Statement of Facts
(“Pl.’s SSOF”) at ¶ 4, ECF No 26-1; Def.’s Resp. to Pl.’s Supp. Statement of Facts (“Def.’s
Resp. SSOF”) at ¶ 4, ECF No. 27-2. Plaintiff testified that he turned off the Machine prior to
attempting to unclog it by reaching for the jam. Bonilla Dep. at 51:7-52:20; 62:16-63:16.
However, as Plaintiff was attempting to take out the clogged milk cartons, the Machine turned
back on, severing the middle finger on his right hand and injuring his pointer finger. Pl.’s SSOF
at ¶ 5; Def.’s Resp. SSOF at ¶ 5. Plaintiff did not call for his supervisor, Jeffrey Halter, to help
unclog the Machine prior to attempting to unclog it himself. Def,’s SOMF at ¶ 17; Pl.’s Resp.
SOMF at ¶ 17.
Plaintiff first operated the Machine on September 10, 2016, one day before his injury.
Def.’s SOMF at ¶ 11; Pl.’s Resp. SOMF at ¶ 11. On that date, Plaintiff was assigned to the
Machine as a substitute for another operator and operated the Machine without incident. Def.’s
SOMF at ¶ 11; Pl.’s Resp. SOMF at ¶ 11. Everyone who had worked on the Machine before
Plaintiff had received training on how to operate the Machine. Pl.’s SSOF at ¶ 10; Def.’s Resp.
SSOF at ¶ 10. Plaintiff’s supervisor, Halter, was responsible for training inmates on how to do
their jobs properly and safely. Pl.’s SSOF at ¶ 24; Def.’s Resp. SSOF at ¶ 24. After Plaintiff
sustained his injury, Halter wrote Plaintiff a disciplinary charge for not following safety
procedures. Pl.’s SSOF at ¶ 15; Def.’s Resp. SSOF at ¶ 15.
Defendants maintain an Inmate Safety Training Receipt Form (the “Form”) for inmates to
sign after they have been trained on a particular piece of equipment. Pl.’s SSOF at ¶ 11; Def.’s
Resp. SSOF at 11. Defendants do not know whether the Form existed and was in use at the time
of Plaintiff’s injury. Deposition of Jeffrey Halter (“Halter Dep.”) at 39:18-25. It is undisputed,
however, that, if the Form existed at the time, Plaintiff would have completed the Form after
receiving training on the Machine. Pl.’s SSOF at ¶ 13; Def.’s Resp. SSOF at ¶ 13. Nevertheless,
during discovery for the present action, Defendants failed to produce an Inmate Safety Training
Receipt Form for the Machine with Plaintiff’s signature. Pl.’s SSOF at ¶ 14; Def.’s Resp. SSOF
Certain other facts remain in dispute. The parties dispute whether Plaintiff was ever
trained on the Machine, and whether Halter was in the building at the time of Plaintiff’s injury.
Pl.’s SSOF at ¶¶ 6, 9, 23; Def.’s Resp. SSOF at ¶¶ 6, 9, 23. The parties also dispute whether
Plaintiff was ever specifically told not to stick his hands in the Machine. Pl.’s Resp. SOMF at ¶
19. Plaintiff testified that, based on his experience, he thought that he should clean out a clog in
the Machine himself. Bonilla Dep. at 62:16–62:22. The parties also dispute whether Defendants
were aware of other similar incidents involving injuries to workers. Pl.’s SSOF at ¶ 22; Def.’s
Resp. SSOF at ¶ 22. Additionally, Plaintiff claims that there was duct tape covering a sensor on
the Machine at the time of the incident. Bonilla Dep. at 69:4–69:13. Halter testified that there
had never been duct tape on the Machine. Halter Dep. at 31:13–31:18.
Plaintiff’s Complaint was originally filed in state court, and was removed to this Court on
November 11, 2015. See ECF No. 1-3. The Complaint contains three counts against all
Defendants, including the Corrections Defendants: (1) Count I alleges a state law claim of
Negligence against all Defendants; (2) Count III alleges a state law claim of Willful, Wanton,
Outrageous, and Reckless Conduct against all Defendants; and (3) Count IV alleges that all
Defendants violated 42 U.S.C. § 1983 by failing to train or supervise staff and inmates in
connection with the Machine, and failing to establish and maintain adequate safety procedures.
Compl. ¶¶ 9-24.1
On May 10, 2016, the Court granted the Corrections Defendants’ motion to dismiss
Count IV of the Complaint. See ECF Nos. 12-13. The Court dismissed Count IV of the
Complaint with prejudice against the State of New Jersey, the NJDOC, Jones Farm, and
AgriIndustries, and Defendant Lanigan is his official capacity. Id. The Court directed Plaintiff
to seek leave to file an Amended Complaint if he sought to bring personal capacity claims
against Defendant Lanigan. Id. Plaintiff did not do so. Only state law claims remain. The
parties have since engaged in discovery, and the Corrections Defendants filed the present motion
for summary judgment. The Court now considers the Corrections Defendants’ motion.
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is
genuine only if there is “a sufficient evidentiary basis on which a reasonable jury could find for
the non-moving party,” and it is material only if it has the ability to “affect the outcome of the
Plaintiff did not include a “Count II” in the Complaint.
suit under governing law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or
unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248. “In
considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party's
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)); see
also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v.
Klem, 298 F.3d 271, 276–77 (3d Cir. 2002). In deciding the merits of a party’s motion for
summary judgment, the court’s role is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
The burden of establishing that no “genuine issue” exists is on the party moving for
summary judgment. Celotex, 477 U.S. at 330. “A nonmoving party has created a genuine issue of
material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”
Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). The non-moving party must
present “more than a scintilla of evidence showing that there is a genuine issue for trial.”
Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quotations omitted). Under
Anderson, plaintiffs’ proffered evidence must be sufficient to meet the substantive evidentiary
standard the jury would have to use at trial. 477 U.S. at 255. To do so, the non-moving party
must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is a genuine
issue for trial.” Celotex, 477 U.S. at 324 (quotations omitted); see also Matsushita, 475 U.S. at
586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). There can be “no
genuine issue as to any material fact,” however, if a party fails “to make a showing sufficient to
establish the existence of an element essential to that party's case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322–23. “[A] complete failure of proof
concerning an essential element of the nonmoving party's case necessarily renders all other facts
immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992).
As a threshold matter, Plaintiff has not sought leave of this Court to amend his Complaint
to bring any § 1983 claims against Defendant Lanigan in his personal capacity. Accordingly, the
Court need only address the remaining state law claims raised against the Corrections
Defendants, contained in Counts I and III of the Complaint. The Court retains supplemental
jurisdiction over those claims, pursuant to 28 U.S.C. § 1367.
Count I: Negligence
In Count I, Plaintiff brings a claim for negligence, pursuant to the New Jersey Tort
Claims Act (“NJTCA”), N.J.S.A. § 59:1-1, et seq. As the parties do in their briefs, the Court
construes Count I as including two claims: (A) one claim related to the allegedly dangerous or
defective condition of the Machine; and (B) a second claim for negligent training or supervision.
At the outset, the parties dispute which standard for negligence liability under the NJTCA should
apply to Plaintiff’s claim. Defendants argue that Plaintiff’s negligence claim, insofar as it alleges
a dangerous or defective condition, is governed by the “palpably unreasonable” standard codified
at N.J.S.A. § 59:4-2. Plaintiff argues that his entire negligence claim should be governed by the
ordinary negligence standard codified at N.J.S.A. § 59:2-2. As explained below, Defendants
have correctly identified the applicable standard.
Dangerous Condition Claim
Under the NJTCA, N.J.S.A. § 59:2-2 sets forth the general rule of vicarious liability for a
public entity, while N.J.S.A. § 59:4-2 provides the rule for liability for a public entity with regard
to any dangerous condition of public property. Ogborne v. Mercer Cemetery Corp., 197 N.J.
448, 452 (2009). Specifically, “N.J.S.A. 59:2–2 governs a plaintiff's cause of action when it
turns on whether a public employee was ordinarily negligent in undertaking the action that
caused the plaintiff's injury.” Id. at 457. N.J.S.A. § 59:2–2 provides:
a. A public entity is liable for injury proximately caused by an act or omission of a public
employee within the scope of his employment in the same manner and to the same extent
as a private individual under like circumstances.
b. A public entity is not liable for an injury resulting from an act or omission of a public
employee where the public employee is not liable.
N.J.S.A. § 59:2–2.
By contrast, N.J.S.A. § 59:4-2 “states that a public entity will only be liable for injuries
resulting from a dangerous condition of property created by an employee's negligence if the
entity acted in a palpably unreasonable manner in failing to protect against the condition.”
Ogborne, 197 N.J. at 458. That provision provides:
A public entity is liable for injury caused by a condition of its property if the plaintiff
establishes 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
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.
Here, Plaintiff’s claim plainly relates to the dangerous or defective condition of public
property, the Machine, located on public property, Jones Farm, which dangerous or defective
condition is alleged to have been caused by a public employee’s negligence. See Compl. ¶ 20
(“The machine which the Plaintiff was assigned was in a dangerous and/or defective condition
due to the failure of the Defendants . . . to properly maintain, service or test the equipment.”).
Plaintiff contends that he turned off the Machine prior to attempting to unclog it by reaching for
the jam, but, as he was attempting to take out the clogged milk cartons, the Machine turned back
on, severing the middle finger of his right hand and injuring his pointer finger. See Bonilla Dep.
at 51:7-52:20; 62:16-63:16; Pl.’s SSOF at ¶ 5; Def.’s Resp. SSOF at ¶ 5. The Court therefore
rejects Plaintiff’s argument that the ordinary negligence standard, set forth in N.J.S.A. § 59:2-2,
applies to Plaintiff’s dangerous or defective condition claim, finding instead that the “palpably
unreasonable” standard in N.J.S.A. § 59:4-2 governs that claim.
This Court’s holding is supported by the New Jersey state courts’ interpretation of the
NJTCA. In Ogborne, for example, the Supreme Court of New Jersey was tasked with
determining whether to apply the NJTCA’s ordinary negligence standard, N.J.S.A. § 59:2–2, or
the “palpably unreasonable” standard, N.J.S.A. § 59:4–2. 197 N.J. at 457. In that case, the
plaintiff brought an action in tort against the defendant-city, alleging that she fractured her tibia
while attempting to traverse a brick wall to exit a city park, inside of which she had become
trapped after a city employee locked the gates to the park several hours before the park was
scheduled to close. Id. at 453-54. As a preliminary matter, the court noted that the NJTCA
should be read in favor of “providing broad immunity,” and thus, “when the facts are reasonably
debatable as to whether a public employee’s act or failure to act created a dangerous condition of
property, and that condition of property causes an injury, the higher standard of palpably
unreasonable conduct in N.J.S.A. § 59:4-2 operates to trump the ordinary negligence standard,
which otherwise applies when the act of a public employee causes an injury.” Id. at 459-60.
Accordingly, the Court held that the heightened “palpably unreasonable” standard applied in that
case, reasoning as follows:
It is obvious that if plaintiff had not been in the Park, the employee's conduct in locking
the gates would not have created a dangerous condition of property. It was the
combination of plaintiff being in the Park and the City's employee locking the gates that
rendered the Park potentially dangerous to plaintiff. Under those conditions, it is
reasonably debatable that the locking of the gates rendered the Park a dangerous
condition because plaintiff was unable to walk out in the same manner that she entered
the Park. Consequently, we agree with the Appellate Division that the proper legal
standard for judging plaintiff's claim against the City should have been the combined
dangerous condition of public property and “palpably unreasonable” standard pursuant to
N.J.S.A. 59:4–2, and not the ordinary negligence standard in N.J.S.A. 59:2–2.
Id. at 461.
Similarly, here, the facts are reasonably debatable as to whether Defendants’ act of
operating and reaching into the Machine caused its dangerous or defective condition. Stated
differently, Plaintiff’s allegations and the undisputed facts support that it was likely the
combination of Plaintiff operating and attempting to unclog the Machine, and Defendants’
maintenance of the Machine, that rendered the Machine dangerous. Under these circumstances,
just as the New Jersey Supreme Court in Ogborne, this Court concludes that the more stringent
“palpably unreasonable” standard set forth in N.J.S.A. § 59:4-2 is applicable to this case.
Having found that N.J.S.A. § 59:4-2 governs this case, the Court must determine whether
summary judgment is appropriate on Plaintiff’s claim alleging a dangerous condition of property.
In order to establish public entity liability due to a dangerous condition of property, a plaintiff
must demonstrate that:
(1) That the property was in a dangerous condition at the time of the injury,
(2) That the injury was proximately caused by the dangerous condition,
(3) That the dangerous condition created a reasonably foreseeable risk of the kind
of injury which was incurred,
(4) 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
b. A public entity had actual or constructive knowledge 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, and
(5) The action the entity took to protect against the condition or the failure to take
such action was palpably unreasonable.
See N.J.S.A. § 59:4-2. In this case, Defendants argue that Plaintiff has failed to establish that:
(1) the Machine was in a dangerous condition at the time of the injury; (2) Defendants had actual
or constructive knowledge of the allegedly dangerous condition; and (3) the actions taken by
Defendants to protect against the dangerous condition, or Defendants’ failure to take such action,
were palpably unreasonable. The Court will address each of those arguments in turn.
First, Defendants argue that Plaintiff cannot establish that the Machine was in a
dangerous condition, as defined under N.J.S.A. § 59:4-1, at the time of Plaintiff’s injury.
Specifically, Defendants argue that Plaintiff cannot establish that the Machine was in a
dangerous condition, because: (i) he has not proffered a liability expert to opine on what aspects
of the Machine or the surrounding premises constituted a physical defect; (ii) the alleged failure
to provide Plaintiff with proper supervision or training does not constitute a dangerous condition
of property; (iii) Plaintiff has identified no defects in the Machine itself; and (iv) Plaintiff’s
injury was caused by placing his hand into the Machine, rather than by a demonstrable defect in
the Machine or its surroundings. Conversely, Plaintiff maintains that the Machine was in a
dangerous condition at the time of his injury, because duct tape covered the Machine’s sensors.
To establish a dangerous condition of property, a plaintiff must show that the property in
question created a “substantial risk of injury when such property is used with due care in a matter
in which it is reasonably foreseeable that it will be used.” N.J.S.A. § 59:4-1(a). The term
“substantial risk” does not include “minor, trivial, or insignificant” risks. Kolitch v. Lindedahl,
100 N.J. 485, 493 (1985). The phrase “used with due care” is understood by courts to mean
“objectively reasonable” use. Garrison v. Twp. of Middletown, 154 N.J. 282, 291 (1998).
“Public property” is defined, in pertinent part, as “real or personal property owned or controlled
by the public entity.” N.J.S.A. 59:4–1(c). In Vincitore ex rel. Vincitore v. New Jersey Sports &
Exposition Auth., 169 N.J. 119 (2001), the Supreme Court of New Jersey summarized the
“dangerous condition” analysis as follows:
Garrison thus describes a three-part analysis. The first consideration is whether the
property poses a danger to the general public when used in the normal, foreseeable
manner. The second is whether the nature of the plaintiff's activity is “so objectively
unreasonable” that the condition of the property cannot reasonably be said to have caused
the injury. The answers to those two questions determine whether a plaintiff's claim
satisfies the Act's “due care” requirement. The third involves review of the manner in
which the specific plaintiff engaged in the specific activity. That conduct is relevant only
to proximate causation, N.J.S.A. 59:4-2, and comparative fault, N.J.S.A. 59:9-4. Id. at
292, 712 A.2d 1101.
169 N.J. at 126.
Ultimately, “[w]hether property is in a ‘dangerous condition’ is generally a question for
the finder in fact.” Id. at 123. Accordingly, the critical question for the purposes of the instant
motion is whether a reasonable factfinder could conclude that the Machine was in a dangerous
condition at the time of Plaintiff’s injury.
Here, Plaintiff has raised a genuine dispute of material fact as to whether the Machine
constitutes a dangerous condition of property. Plaintiff testified that Defendants placed duct tape
over a sensor on the Machine, so the Machine would not turn off when the door to the Machine
was open.2 Bonilla Dep. at 70:9–71:2. By contrast, Halter testified that there had never been
duct tape on the Machine. Halter Dep. at 31:13–31:18. Plaintiff also testified that he turned the
Machine off before attempting to unclog the Machine. Bonilla Dep. at 51:19–25. A reasonable
factfinder could conclude that covering a safety sensor with duct tape, enabling the Machine to
function when it otherwise should not have, poses a substantial risk of injury to someone using
the Machine in a normal, foreseeable manner. Because there is a dispute of material fact as to
whether the safety sensor was in fact covered, the Court cannot grant summary judgment on
Additionally, the Court cannot find, as a matter of law, that Plaintiff’s conduct in
attempting to unclog the Machine with his hand was “‘so objectively unreasonable’ that the
condition of the property cannot reasonably be said to have caused the injury.” Vincitore, 169
N.J. at 126. To that end, a dispute of fact exists regarding whether Plaintiff was provided with
safety training and whether Plaintiff was specifically told not to stick his hands in the Machine.
A reasonable factfinder could conclude that it was not objectionably unreasonable for Plaintiff to
attempt to unclog the Machine himself, after it had been turned off, and, thus, that Plaintiff’s
injury was caused by the dangerous condition of the Machine, rather than Plaintiff’s own actions.
Additionally, despite not raising the issue in their original motion, Defendants argue in their
reply brief that Plaintiff also cannot satisfy the second element, proximate cause. Defendants
argue that because Plaintiff testified that he turned off the Machine prior to sustaining his
injuries, the Machine must have somehow turned back on in order to injure Plaintiff. Thus,
Defendants argue that Plaintiff cannot claim that obstructed sensors caused Plaintiff’s injuries.
While it is not clear that the Court should consider this argument made for the first time in a
reply brief, the Court is unpersuaded. Regardless of how the Machine was turned back on,
Plaintiff has presented evidence that but-for the sensors being obstructed, the Machine would not
have run if a door was open. Halter Dep. at 30:1–30:6. Accordingly, a reasonable jury could
find that the Machine would not have run but-for the presence of duct tape obstructing the
sensors, and therefore, that the obstruction proximately caused Plaintiff’s injuries.
While Defendants attempt to rely on Hawes v. New Jersey Dep't of Transp., 232 N.J.
Super. 160 (Law. Div.), aff'd, 232 N.J. Super. 159 (App. Div. 1988) and Speziale v. Newark
Hous. Auth., 193 N.J. Super. 413 (App. Div. 1984), for the proposition that Plaintiff’s actions
constitute a lack of due care, precluding Plaintiff from establishing a dangerous condition, those
cases are inapposite. In Hawes, plaintiff, the administratrix of the estate of a decedent who was
struck and killed by a train as he attempted to cross a railroad track, alleged that the defendants
allowed a dangerous condition to exist on the right of way of a railroad, “because they failed to
erect fences or take other steps to prevent pedestrians from crossing the tracks, despite
knowledge that the area in question was one regularly used by trespassers.” 232 N.J. Super. at
161. The defendants moved for summary judgment, arguing that the property at issue was only
dangerous because the plaintiff failed to exercise due care in crossing the tracks. See id. The
court held that the property did not constitute a dangerous condition, and thus granted the motion
for summary judgment, reasoning as follows:
[I]t is clear to this Court that if a person were to use the defendant's property with due
care, he would encounter no substantial risk of harm. Common sense dictates that a
person using due care would make certain no trains were approaching before walking
across a railroad track. Exercising even a minimum of care, a person should be able to
eliminate any chance of being hit by a train. Accordingly, NJT's property did not
constitute a dangerous condition.
Id. at 164.
Similarly, in Speziale, the plaintiff brought a tort action against the defendant housing
authority after she slipped on a puddle of water that had gathered in a “pit” at the entranceway of
the complex’s laundry room. See 193 N.J. Super. at 415. The plaintiff testified that, as she
walked through the rain to retrieve her laundry from the laundry room, she “noticed that there
were approximately two or three inches of water in the pit and that a drain in the floor was
‘bubbling,’” and that these conditions did not exist during her initial trip to the room. See id.
The Appellate Division held that the plaintiff “failed to sustain her burden of proving that the
condition of the property presented a substantial risk of injury when used with due care.” Id. at
417. The court reasoned as follows:
There are situations where the mere use of the property at all, absent the emergent need to
do so, in itself constitutes a lack of due care. A person in plaintiff's position here could
have been reasonably expected to wait until the water condition abated, or to have sought
assistance. Thus, the condition of the property did not create “a substantial risk of injury
when ... used with due care in a manner in which it is reasonably foreseeable that it will
be used” within the intendment of N.J.S.A. 59:4-1.
Id. The court noted, however, that its holding should not be interpreted as creating a bright-line
rule that if a “plaintiff is contributorily negligent, a public entity will thereby automatically
obtain immunity under N.J.S.A. 59:4-2 for injury caused by a condition of its property.” Id. at
Here, unlike in Hawes and Speziale, the Court cannot conclude that if a person were to
use Defendants’ property with due care, he would encounter no substantial risk of harm. To the
contrary, accepting Plaintiff’s allegations as true, the duct tape covering the Machine’s sensors
prevented the Machine from shutting down in the event a door was opened, presenting a
substantial risk of harm even where the Machine was used in a foreseeable manner. Whether
and to what extent Plaintiff may have been contributorily negligent in causing his own injury is a
question for the jury. However, in light of the evidence proffered by Plaintiff, the Court cannot
conclude, as a matter of law, that Plaintiff’s injuries were caused by his own failure to exercise
due care, rather than by a dangerous condition. Accordingly, a reasonable factfinder could
conclude that the Machine constituted a dangerous condition of public property, and Defendants’
motion for summary judgment on this basis is denied.
Actual or Constructive Knowledge
Second, Defendants argue that Plaintiff has failed to allege sufficient facts for a
reasonable juror to conclude that Defendants had actual or constructive knowledge of the
allegedly dangerous condition prior to Plaintiff’s injury. In that connection, Defendants maintain
that Plaintiff has not produced any evidence that, prior to Plaintiff’s injury, the Machine
malfunctioned as a result of duct tape being placed over the sensors, or that Defendants were
aware of any prior complaints or injuries related to the Machine.
In opposition, Plaintiff argues that Defendants had actual or constructive knowledge of
the dangerous condition of the Machine. Plaintiff testified that “Pat,” one of Plaintiff’s
supervisors working for Defendants, had told him that multiple other inmates had lost fingers or
hands while operating the Machine. Bonilla Dep. at 87:6–87:25. Plaintiff also testified that Pat
knew about the duct tape on the sensor, and that the duct tape was put in place to prevent the
Machine from shutting down. Id. at 70:12–71:2.
Actual knowledge can be shown by proving that the public entity “had actual knowledge
of the existence of the condition and knew or should have known of its dangerous character.”
N.J.S.A. § 59:4-3(a). Constructive knowledge requires a plaintiff to show that “the condition
had existed for such a period of time and was of such an obvious nature that the public entity, in
the exercise of due care, should have discovered the condition and its dangerous character.”
N.J.S.A. § 59:4-3(b).
Here, drawing all inferences in favor of Plaintiff, the non-moving party, the Court holds
that there is sufficient evidence upon which a reasonable jury could conclude that Defendants
had actual knowledge of the alleged dangerous condition of the Machine. There are genuine
factual disputes as to both whether Defendants, through Plaintiff’s supervisor, knew that duct
tape covered the Machine’s sensors, as well as to whether Defendants had knowledge of
complaints or injuries similar to Plaintiff’s caused by the Machine. To that end, although
Defendants claim that Plaintiff has produced no evidence demonstrating that Defendants were
aware of prior complaints that the Machine had malfunctioned, Plaintiff testified that “Pat”
admitted that another employee injured his hand while operating the Machine.3 Bonilla Dep. at
87:6–87:25. Accordingly, since a reasonable jury could find that Defendants had actual
knowledge of the alleged defects creating a dangerous condition on the Machine, Defendants’
motion for summary judgment on this basis is denied, and the Court turns to whether
Defendants’ failure to remedy those conditions was palpably unreasonable.4
Finally, to abrogate municipal immunity under the NJTCA, Plaintiff must also
demonstrate that the action Defendants took to protect against the dangerous condition of the
While Defendants argue that Plaintiff has only presented hearsay evidence to support his claim
that Defendants were aware of similar complaints, “the rule in this circuit is that hearsay
statements can be considered on a motion for summary judgment if they are capable of being
admissible at trial. In ruling on a motion for summary judgment, the court need only determine if
the nonmoving party can produce admissible evidence regarding a disputed issue of material fact
at trial. The proponent need only ‘explain the admissible form that is anticipated.’” Fraternal
Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238–39 (3d Cir. 2016) (quotations
omitted) (emphasis in original). Here, Defendants have not provided a basis for this Court to
determine that Plaintiff’s proffered evidence is not capable of being admissible at trial or that
Plaintiff’s supervisor would be otherwise unavailable to testify at trial. Indeed, Plaintiff has
identified the declarant by name, and as an employee at one of Defendants’ facilities. Thus, it is
proper on summary judgment for the Court to consider Plaintiff’s testimony that Pat told him
about similar injuries sustained while other employees were using the Machine.
The Court notes that, to satisfy the fourth element under § 59:4-2, a Plaintiff must demonstrate
actual or constructive knowledge or that a negligent or wrongful act or omission of an employee
of the public entity within the scope of his employment created the dangerous condition. See
N.J.S.A. § 59:4-2. Defendants do not challenge the sufficiency of the evidence on the latter
Machine, or Defendants’ failure to protect against that condition, was palpably unreasonable.
N.J.S.A. § 59:4-2.
While the NJTCA does not explicitly define “palpably unreasonable,” the Supreme Court
of New Jersey has interpreted the phrase to mean “more than ordinary negligence, and impose[s]
a steep burden on a plaintiff.” Coyne v. State, Dep't of Transp., 182 N.J. 481, 493 (2005). A
public entity’s actions are palpably unreasonable when its behavior “‘is patently unacceptable
under any given circumstances.’” Id. (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)).
For a public entity to act in a palpably unreasonable manner, “it must be manifest and obvious
that no prudent person would approve of its course of action or inaction.” Id. While in certain
cases, “the question of palpable unreasonableness may be decided by the court as a matter of
law,” Maslo v. City of Jersey City, 346 N.J. Super. 346, 350 (App. Div. 2002), whether a
defendant’s conduct is palpably unreasonable is generally a question for the factfinder.
Vincitore, 169 N.J. at 129.
In this case, I cannot determine, based on the summary judgment record before me,
whether Defendants should have done more to ensure that the Machine was being operated in a
safe condition. In that connection, Plaintiff alleges that Defendants placed duct tape over a
sensor on the Machine, preventing the Machine from turning off when a door was opened.
Bonilla Dep. at 70:12–71:2. Moreover, it is unclear whether Defendants took any steps to
prevent employees, such as Plaintiff, from attempting to unclog the Machine. Whether
Defendants’ actions in responding to the dangerous condition of the Machine were “patently
unacceptable under any given circumstances,” such that “it must be manifest and obvious that no
prudent person would approve of its course of action or inaction,” Kolitch, 100 N.J. at 493, is,
therefore, properly a question for the factfinder. Defendants’ motion for summary judgment on
this basis, and therefore also on Plaintiff’s dangerous condition claim, is denied.
Negligent Failure to Train or Supervise
Next, the Court turns to Plaintiff’s claims that Defendants negligently failed to train
Plaintiff on how to operate the Machine, and negligently failed instill proper procedures for
supervising employees using the Machine.
“Under New Jersey law, liability may be imposed on an employer who fails to perform
its duty to train and supervise its employees.” Stroby v. Egg Harbor Twp., 754 F. Supp. 2d 716,
721 (D.N.J. 2010) (citing Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 346 (1994)).
Because a claim for failure to train or supervise is a negligence claim, a plaintiff must
demonstrate that: “(1) the defendant owed a duty of care to the plaintiff, (2) defendant breached
that duty of care, (3) defendant's breach was the proximate cause of plaintiff's injury, and (4)
defendant's breach caused actual damages to plaintiff.” Stroby, 754 F. Supp. 2d at 721 (citing
Weinberg v. Dinger, 106 N.J. 469, 484 (1987)).
With respect to Plaintiff’s claim for negligent training, Defendants argue that Plaintiff has
failed to establish that Defendants breached a duty of care owed to Plaintiff, and that Defendants’
breach was the proximate cause of Plaintiff’s injury. Specifically, Defendants contend that
Plaintiff has failed to proffer an expert opinion on Defendants’ standard of care in training its
employees, as required to prove such an element of the claim, and that regardless of the amount
of training provided Plaintiff, a defective stop mechanism or other condition presents a
superseding cause in Plaintiff’s injury. I disagree.
As a preliminary matter, the Court finds that Plaintiff was not required to present expert
testimony on the requisite standard of care to which Defendants are held in training their
employees. The need for expert testimony in a tort action depends on “whether the matter to be
dealt with is so esoteric that jurors of common judgment and experience cannot form a valid
judgment as to whether the conduct of the party was reasonable.” Scully v. Fitzgerald, 179 N.J.
114, 127 (2004) (citation omitted). However, “expert testimony is not necessary when the
subject can be understood by jurors utilizing common judgment and experience.” Campbell v.
Hastings, 348 N.J. Super. 264, 270 (App. Div. 2002). “[T]here is no general rule or policy
requiring expert testimony on the standard of care in tort actions,” and “the necessity for expert
testimony” is left to the trial judge. Dixon v. CEC Entm't, Inc., No. 2010-06T1, 2008 WL
2986422, at *19 (N.J. Super. Ct. App. Div. Aug. 6, 2008).
Here, the Court finds that the level of care to which Defendants must be held in training
their employees on how to operate the Machine is not so esoteric as to require expert testimony
— it concerns only the fairly mundane question of the care necessary in dealing with a large,
mechanical device. To that end, the amount of training Defendants were required to provide
their employees is a subject that can be understood by jurors using common judgment and
experience. Accordingly, Plaintiff was not required to proffer expert testimony regarding the
duty of care Defendants needed to exercise in training their employees on how to operate the
Additionally, the record is replete with evidence from which a reasonable juror could
conclude that Defendants breached their duty of care to Plaintiff, and that breach proximately
caused Plaintiff’s injuries. In that connection, a genuine dispute of fact exists regarding whether
Defendants breached their duty, because while Defendants require inmates to sign an Inmate
Safety Training Receipt Form after they have been trained on equipment, Pl.’s SSOF at ¶ 11;
Def.’s Resp. SSOF at 11, Defendants did not produce a Form with Plaintiff’s signature in this
case, Pl.’s SSOF at ¶ 14; Def.’s Resp. SSOF at 15. Moreover, the critical fact of whether the
Form was in fact in use at the time of Plaintiff’s injury remains uncertain. Halter testified that he
was unsure if the Form was in use at the time of Plaintiff’s accident. Halter Dep. at 39:18-25.
Moreover, the parties dispute whether Plaintiff was ever trained on the Machine. Pl.’s SSOF at
¶¶ 6, 9; Def.’s Resp. SSOF at ¶¶ 6, 9. The factual questions are sufficient to submit to the jury
the issue of whether Defendants breached their duty of care.
Moreover, a reasonable factfinder could conclude that Defendants’ breach of their duty to
properly train Plaintiff on how to operate the Machine proximately caused Plaintiff’s injuries.
“Proximate causation is a concept that is vague and subject to interpretation.” Worrall v. City of
Atl. City, No. 11-3750, 2014 WL 980575, at *5 (D.N.J. Mar. 13, 2014) (citing Conklin v.
Hannoch Weisman, 145 N.J. 395, 416 (1996)). To establish proximate causation in a negligent
training case, “a plaintiff must prove that his or her injury would not have happened ‘but for’ a
defendant's negligence in training its employees, and that improper training was a substantial
factor in bringing about a plaintiff's injury.” Id. at *5. Here, Plaintiff has presented sufficient
evidence for a factfinder to conclude that had Plaintiff been properly trained, he would not have
reached into the Machine to unclog it, and thus, his injuries would not have occurred but for the
lack of training. See Denisco v. Boardwalk Regency Corp., No. 10-3612, 2013 WL 179484, at
*5 (D.N.J. Jan. 16, 2013) (“She also stated that had she known she was not permitted to use
lancets, she would not have used them, permitting a jury to conclude that deficient training was a
proximate cause of Plaintiffs' injuries.”).
In sum, the evidence presented, with all inferences drawn in Plaintiff’s favor, is sufficient
for a reasonable jury to find that Defendants negligently trained Plaintiff on operating the
Machine. Taking Plaintiff’s testimony as true, Defendants never trained Plaintiff on how to
operate the Machine, and never instructed him on the proper procedure in the event the Machine
became jammed. See Bonilla Dep. at 41:25-42:7; 46:1-2. Plaintiff also stated that he was never
explicitly told not to reach into the Machine, permitting a jury to conclude that deficient training
was a proximate cause of Plaintiff's injuries. These issues of fact are for a jury to decide, and
thus, the Court will deny summary judgment on the issue of negligent training.
Under New Jersey law, “employers have a duty to supervise employees, and liability may
be imposed if an employer fails to perform that duty.” Worrall, 2014 WL 980575 at *3. Like
the tort of negligent training, negligent supervision “requires proof of duty, breach, causation,
and injury.” Denisco, 2013 WL 179484 at *5; Dixon, 2008 WL 2986422 at *18. Defendants
challenge Plaintiff’s negligent supervision claim on the same bases that they challenge his
negligent training claim; namely, that plaintiff has failed to demonstrate that Defendants
breached the applicable duty of care, and has failed to demonstrate that Defendants’ breach
proximately caused Plaintiff’s injuries.
As above, the Court notes that the applicable duty of supervision Defendants owed
Plaintiff is not a matter so esoteric as to require expert testimony. Additionally, Plaintiff has
raised a genuine dispute of material fact regarding whether Defendants breached that duty.
Importantly, the parties dispute whether Plaintiff’s supervisor, Halter, was in the building at the
time of Plaintiff’s injury. Pl.’s SSOF at ¶ 23; Def.’s Resp. SSOF at ¶ 23. Plaintiff testified that
while Halter was responsible for ensuring that inmates were properly and safely performing their
jobs, he was not in the building on the day of Plaintiff’s injury. Bonilla Dep. at 62:16-64:7. This
evidence raises a genuine issue of material fact as to whether Plaintiff was properly supervised
while operating the machine, whether Defendants knew or should have known that the machine
could jam, and whether Defendants were negligent for permitting Plaintiff to use the machine
under those conditions. Because Plaintiff’s negligent supervision claim is dependent on factual
issues regarding the level of supervision provided, as well as Defendants’ knowledge of
Plaintiff’s use of the Machine, summary judgment on the issue of negligent supervision will be
In sum, because genuine issues of material fact remain as to whether Defendants
negligently failed to train and supervise Plaintiff, Defendants’ motion for summary judgment on
those claims is denied.
Count III: Willful, Wanton, Outrageous, and Reckless Conduct
In Count III, Plaintiff brings a claim for Willful, Wanton, Outrageous, and Reckless
Conduct. In their briefs, Defendants make no attempt to cite a legal standard or argue that they
are entitled to summary judgment on this claim. As Defendants do not appear to challenge Count
III in their motion, the Court has no basis to enter summary judgment on Count III.
For the reasons discussed above, the Corrections Defendants’ motion for summary
judgment is denied. However, the Court declines to further exercise supplemental jurisdiction
over the remaining state law claims. See 28 U.S.C. § 1367(c)(3); Queen City Pizza v. Domino’s
Pizza, 124 F.3d 430, 444 (3d Cir. 1997) (the decision to decline to exercise supplemental
jurisdiction over a plaintiff’s remaining state law claims “is committed to the sound discretion of
the district court.”). Rather, the Court will remand this case back to state court for trial. An
appropriate order will follow.
Dated: July 19, 2017
/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge
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