Sharra v. City ofAtlantic City, 199 N.J. Super. 535, 540, 489 A.2d 1252 (App.Div. 1985) (citing Rodriguez v. N.J. Sports ExpositionAuth., 193 N.J. Super. 39, 472 A.2d 146 (App.Div. 1983), certif. denied, 96 N.J. 291, 475 A.2d 586 (1984)); accordCogsville v. City of Trenton, 159 N.J. Super. 71, 386 A.2d 1362 (App.Div. 1978) (holding that exposure to dog bites from allegedly vicious dog owned by tenant in city dwelling did not constitute dangerous condition of property); Setrin v. GlassboroState College, 136 N.J. Super. 329, 346 A.2d 102 (App.Div. 197 5) (holding that criminal conduct of one student in attacking another student during on-campus racial incident did not constitute dangerous condition of property). In King by King v. Brown, 221 N.J. Super. 270, 534 A.2d 413 (App.Div. 1987), the court considered the activity on the property, in addition to its physical condition, in deciding whether a dangerous condition existed. There, Brown, a motorist, struck the plaintiff, a pedestrian, as he attempted to cross a municipal roadway.

In advancing this argument, the city cites to several decisions of courts in other jurisdictions, in which those courts held that high traffic volumes by themselves do not constitute dangerous conditions such that the absence of traffic or pedestrian signals or stop signs at those locations could not cause liability to attach to municipalities for negligent maintenance of the roadways. See Song X. Sun v. City of Oakland, 166 Cal. App. 4th 1177, 83 Cal. Rptr. 3d 372 (2008); Orlando v. Broward County, Fla., 920 So. 2d 54 (Fla. Diet. Ct. App. 2006); Brenner v. City of El Cajon, 113 Cal. App. 4th 434, 6 Cal. Rptr. 3d 316 (2003); King ex rel. King v. Brown, 221 N.J. Super. 270, 534 A.2d 413 (1987). These cases, however, are inapposite to the factual situation herein presented, as they do not involve situations in which pedestrians crossed a street through marked crosswalks.

221 N.J. Super. at 5 (footnote 1). In King by King v. Brown, 221 N.J. Super. 270 (App.Div. 198 7), the mechanics of plaintiff's injury were identical to those in Ross, supra, decided approximately two weeks earlier. In King, plaintiff was struck by a car while crossing the street.

In a recent decision, the Appellate Division refused, however, to adopt a strict physical defect/activity standard. King v. Brown, 221 N.J. Super. 270, 274-5 (App.Div. 1987). Instead, the court held that the best approach for determining a dangerous condition is to consider "whether the condition complained of creates a substantial risk of injury despite the exercise of due care . . . what constitutes due care depends on the variable element of risk of harm inherent in any situation . . . (T)he greater the risk, the greater the care required."

As we have elsewhere observed, there is an obvious risk posed to pedestrians by vehicular traffic, and "[i]n the absence of due care, traffic congestion may enhance the risk of injury so that the risk becomes substantial." King v. Brown, 221 N.J.Super. 270, 275 (App. Div. 1987). "But the test is whether the condition complained of creates a substantial risk of injury despite the exercise of due care by motorists and pedestrians."

Due care in use of property "depends on the variable element of risk of harm inherent in any situation." Levin, 133 N.J. at 60 (quoting King v. Brown, 221 N.J. Super. 270, 276 (App. Div. 1987)). Our Supreme Court has explained that the level of due care required in the use of property must be assessed objectively based on a community ideal of reasonable behavior.

Ramapo Brae Condo. Ass'n, Inc. v. Bergen Cty. Hous. Auth., 328 N.J. Super. 561, 571 (App. Div. 2000) (citing Ayers v. Jackson Twp., 106 N.J. 557, 574- 75 (1987); King by King v. Brown, 221 N.J. Super. 270, 276-77 (App. Div. 1987)). Here, plaintiff seeks to hold the Borough liable for a dangerous condition of its property.

Wymbs v. Twp. of Wayne, 163 N.J. 523, 532 (2000) (quoting Levin v. Cty. of Salem, 133 N.J. 35, 44 (1993)). However, as we said in King v. Brown, 221 N.J. Super. 270, 275 (App. Div. 1987), "application of the dangerous condition standard requires consideration of both the physical characteristics of the public property as well as the nature of the activities permitted on that property. Indeed, the definition of dangerous condition in N.J.S.A. 59:4-1a requires consideration of the reasonably foreseeable use of the property.

The greater the risk of harm, the greater the care that is expected to be exercised by the injured party. King v. Brown, 221 N.J. Super. 270, 276 (App. Div. 1987). Here, the children's decision to cross a busy six-lane highway at a location not controlled by a traffic light was objectively unreasonable.

[Id. at 50.] Thus, the Court did not adopt our reasoning in King v. Brown, 221 N.J. Super. 270, 275 (App. Div. 1987), that activity on the property, along with the physical character of the property, may establish a dangerous condition within the meaning of Chapter 4 of the TCA. Therefore, the focus of the analysis of whether a dangerous condition of public property exists remains upon the "the physical condition of the property itself."