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William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A

Liability on Private Property and the Political Committee's Role in Filling Vacancies

Deborah M. Kole
League Staff Attorney

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.

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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