Q My
son picked up an unexploded firework at our municipality’s
July 4 celebration without my knowledge. He continued
to hide it from us, and a few days later,
he set it off in our yard, luckily without hurting himself or anybody else. We
were very upset by this incident, since he could have injured himself or another
person badly. I felt that it was irresponsible of the town to allow children
to attend an event where such fireworks could be picked up. A friend told me
that even if my son had been hurt in the incident, the municipality could not
be held liable because the injury occurred on private property, even though the
firework was acquired by him on public property and at a municipally-sponsored
event. Is this true?
A Actually,
the New Jersey Supreme Court has recently ruled that
a municipality can be liable in such a situation, even
when the injury occurred a month after the festivities
took place, in Smith v. Fireworks by Girone, Inc.et al.
(A-39-03, decided June 23, 2004). In doing so, the Court
reversed the Appellate Division decision that interpreted
a provision of the Tort Claims Act literally. The statute
in question, N.J.S.A. 59:4-2 provides that “
A public entity is liable for injury caused by a condition
of its property if the plaintiff established that the property
was in dangerous condition at the time of the injury, that
the injury was proximately caused by the dangerous
condition, (and) that the dangerous condition created a
reasonably foreseeable risk of the kind of injury which
was incurred...” The Appellate Division found that
this language in the statute precluded public entity liability
where, as here, the injury occurred not only off the public
property in question, but at a time when that public property
was no longer dangerous.
The Supreme Court rejected the idea
that the injury from the “dangerous condition” in the above-cited
statute must occur in the same place and at the same time
as the
condition itself. Rather, the Court found that if the public
entity “creates or suffers” a dangerous condition
on its property, it can be held liable if that condition
leads “ineluctably and foreseeably” to injury
even if the injury occurs off public property and at a
time when the public property has ceased to be dangerous.
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Q We
have a partisan form of government in our municipality,
and I am a member of the governing body. One of the members
of the governing body resigned, and a week later the political
committee that nominated him sent the council a list of
three candidates to replace him on the governing body.
The remaining members of the council voted to reject them
all. Shortly thereafter, the political committee informed
us that they had chosen one of the three original candidates
to fill the vacant position without a council vote. Our
municipal attorney tells us that council approval is not
necessary, even though we already rejected this person
as a replacement. Is she correct?
A Under the
Municipal Vacancy Law, the procedure followed by the political
committee in this situation is the correct one. NJSA 40A:16-11
provides that if the office of a governing body member
who was the nominee of a political party becomes vacant,
the municipal committee of that party has 15 days from
the date of the vacancy to present three candidates for
the office to the governing body. The governing body then
has 30 days to appoint one of these three individuals to
the position. If they fail to meet this deadline, ...”the
municipal committee that named the three nominees shall,
within the next 15 days, appoint one of the nominees as
the successor to fill the vacancy, and such person shall
be sworn in immediately.” Note that no governing
body approval is required.
Therefore, if the governing body wants
to have a say concerning who is to fill the vacant seat
for the remainder of the
unexpired term in this situation, they must make a choice
between the candidates chosen by the political committee
during the 30 day time limit.
This column is for informational purposes only, and is not intended as legal advice.
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