Straying off the walkpath to try to catch an extra glimpse of football players during halftime at a Rutgers game caused Lora Sherman serious injuries. She “tripped over a retaining wall and fell, dislocating both of her arms and sustaining severe fractures requiring surgery.” Sherman v. Rutgers, 2013 N.J. Super. WL 4607360. She sued Rutgers alleging that the retaining wall, the lack of a guard rail, and the lack of light in the area amounted to a dangerous condition of Rutgers’ public property under N.J.S.A. 59:4-2. Id. at 6, 8.Lora Sherman

The Middlesex County trial court granted summary judgment for Rutgers and Sherman appealed the trial court’s ruling. The Appellate Division once again found for Rutgers and upheld the summary judgment.

“To establish that defendant’s property was in a dangerous condition, plaintiff was required to show, among other things, that she used the property with due care.” Id. at 13. In order to determine whether a plaintiff has used due care there is a two-step 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.”

Id. at 13-14, (quoting Vincitore v. N.J. Sports Expo. Auth., 169 N.J. 119 (2001)).

The Court found that Sherman did not use due care when straying from the pathway. Id. at 16. First, she turned and walked off of the sidewalk when she saw lights on in the adjacent building, thinking she could see some football players inside. This did not constitute using the property in a foreseeable manner according to the Court. Second, she even admitted that the accident would not have happened if she had stayed on the sidewalk with her friends and family.