Background
On July 1, 2019, plaintiff Svetlana Fakhroutdinov was struck and seriously injured by a vehicle while standing at the southern entrance of the RiverWalk Pathway, a pedestrian pathway inside Foschini Park — a municipally owned park in Hackensack, Bergen County. The accident unfolded when a Honda Civic stopped in the left lane of East Salem Street Extension to allow plaintiff to cross, and a Toyota Avalon, driven by Miguel Bueno, swerved right to avoid the Honda, lost control, and drove off the road and into the park, striking plaintiff while she was still standing on park property behind the curb line. At the location of the accident, there was no designated crosswalk, no sidewalk, and no paved shoulder for pedestrian use; there were, however, two metal signs reading “DANGER ROAD AHEAD” posted within the park near the pathway exit. Plaintiff had been skating at a nearby rink and was walking through Foschini Park during a break between skating sessions.
Plaintiffs sued the City of Hackensack, Bergen County, the New Jersey Department of Transportation, and the State of New Jersey, alleging the Salem Street Extension was in a dangerous condition due to the absence of crosswalks, pedestrian warning signs, and adequate speed controls. Plaintiffs retained expert engineer Nicholas Bellizzi, P.E., who provided multiple supplemental reports over the course of discovery, opining that the park pathway terminated at a “trap” for pedestrians who had no safe means of crossing the street. The City moved for summary judgment asserting immunity under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :14-4, and the Landowners’ Liability Act (LLA), N.J.S.A. 2A:42A-1 to -10. The trial court granted summary judgment on both grounds and denied plaintiffs’ motion for reconsideration of a prior discovery extension ruling. Plaintiffs appealed.
The Court’s Holding
The Appellate Division affirmed on all grounds. On the TCA claim, the court held that plaintiff could not satisfy the threshold element of demonstrating a “dangerous condition” of public property under N.J.S.A. 59:4-2. A dangerous condition under the TCA refers to the physical condition of the property itself, not to the activities of third parties on adjacent property. Here, the pathway itself was not physically dangerous. Plaintiff’s injuries were caused by Bueno’s negligent driving on East Salem Street — conduct occurring off City property — not by any intrinsic attribute of the pathway or the park. The court cited Ross v. Moore, 221 N.J. Super. 1 (App. Div. 1987), for the principle that governmental liability cannot be premised on a dangerous activity by a third party somewhere off the public property. Because plaintiff could not establish a dangerous condition as a threshold matter, the entire TCA claim necessarily failed without reaching the remaining statutory elements.
On the LLA, the court held that Foschini Park bore the dominant character of a recreational space — it had a playground, baseball fields, pedestrian walkways, and free public access — and thus fell squarely within the LLA’s immunity provisions. Following Arias v. County of Bergen (Arias I), 479 N.J. Super. 268 (App. Div. 2024), affirmed by the Supreme Court in Arias II, 262 N.J. 479 (2026), the court applied the “dominant character” test and declined plaintiffs’ invitation to apply the older Harrison v. Middlesex Water Co., 80 N.J. 391 (1979), four-part framework, which the Supreme Court has determined is no longer relevant following the Legislature’s 1991 amendments to the LLA. The court also found plaintiff was engaged in recreational activity — walking through the park for enjoyment during a break in skating — rather than merely transiting between destinations, placing her conduct within the LLA’s protective ambit. Finally, the court found no abuse of discretion in the trial court’s decision to reopen discovery for the City to serve a supplemental accident reconstruction report, given that plaintiffs themselves had submitted multiple supplemental expert reports after the close of discovery and the City’s evolving liability theories justified the extension.
Key Takeaways
- Under the TCA, a municipality is not liable for injuries caused by a third party’s negligent driving on a public road adjacent to a municipal park simply because the park’s pathway led plaintiff to that location; the dangerous condition must inhere in the physical condition of the public property itself, not in the conduct of independent third parties elsewhere.
- Following Arias II, courts applying the LLA must use the “dominant character” test rather than the Harrison four-part framework; a municipally owned park with playgrounds, athletic fields, and free public access readily satisfies the LLA’s recreational-use immunity, shielding the municipality from liability to recreational users injured on the premises.
- A plaintiff using a park’s pedestrian pathway while enjoying a recreational break — rather than simply cutting through the park as a transit route — qualifies as engaging in “sport and recreational activities” for LLA purposes, triggering the landowner immunity.
Why It Matters
Fakhroutdinov v. City of Hackensack offers practical guidance for practitioners navigating TCA and LLA immunity in cases arising from accidents at the interface between public parks and public roads. The decision reinforces that the TCA’s dangerous condition analysis maintains a firm boundary at the public entity’s property line: a pathway that terminates at a busy road without a crosswalk does not itself become a “dangerous condition” simply because the absence of pedestrian infrastructure increases the risk that a park user will be struck by negligent drivers on an adjacent roadway. Plaintiffs cannot reframe third-party negligence as municipal premises liability.
The LLA analysis is equally significant. With Arias II settled law, municipal park owners can rely on LLA immunity whenever the park’s dominant character is recreational — regardless of whether the specific activity causing injury is explicitly listed in the statute — as long as no fee is charged for access. For plaintiffs’ counsel, the message is clear: the path to municipal liability in park-accident cases runs through the TCA’s strict conjunctive requirements, and failure to establish any single element — most critically, a genuine dangerous condition of the property — is fatal to the claim. The discovery ruling further illustrates that courts retain substantial discretion to allow supplemental expert reports when theories of liability evolve through multi-round expert exchanges.