A decision just released by the New Jersey Appellate Division highlights the importance of reporting potholes and other hazardous conditions on the road before you get injured by the hazardous condition, as otherwise the owner of the road will not be responsible for any injuries.
On April 1, 2017, Helen Cigarroa fell in a municipal parking lot located across the street from her home in the Town of Harrison. The fall occurred after she returned from a drive with her daughter in her daughter's car. Her daughter parked the car in the municipal parking lot. As Cigarroa exited the car and walked towards the rear of the vehicle, she stepped into a pothole and fell. The right side of her body struck the ground, causing her to sustain a fractured right foot.
In March 2019, Cigarroa filed a complaint in New Jersey Superior Court in Hudson County against Harrison seeking damages for the injuries she sustained during the April 2017 fall.
Judge Vanek dismissed the complaint.
In a written ruling just released, Appellate Division Judges Enright and Augostini affirmed Judge Vanek's dismissal of the complaint.
The one simple reason: Cigarroa did not report the pothole to the Township prior to her fall, neither did anyone else report the pothole to the Township. Accordingly, the courts found that the Township did not have "actual or constructive notice" of the hazardous condition prior to the fall, which is required in order to establish a Tort Claim.
The court proceeding revealed that the municipal lot where Cigarroa fell is cleaned on Tuesdays and Fridays by street sweepers employed by Harrison's Department of Public Works (DPW). Harrison relies on reports from citizens and its DPW employees to alert the town to any location needing a pothole repair. Although Harrison does not have employees specifically dedicated to locating potholes, the town documents any reports of potholes it receives and the pothole repairs it makes. Prior to Cigarroa's April 2017 fall, Harrison had no record the pothole that caused her fall existed or needed repair.
Cigarroa retained an engineering expert, Charles J. Witczak who visited and inspected the site where she fell," and opined "defendant failed to protect the safety of pedestrians utilizing the lot in question by not correcting the hazardous condition created by the uneven and excessively sloped surface present at the site."
The judge agreed that the "expert report detailed the size of the alleged pothole in the parking lot," which was "sufficient to establish a genuine issue of material fact as to whether the pothole created a dangerous condition."
However, the judge added that to prevail under the Tort Claims Act, Cigarroa needed to establish that the Township had "actual or constructive notice" of the hazardous condition.
Pursuant to N.J.S.A. 59:4-2, to impose liability on a public entity, [a] plaintiff must establish the existence of a dangerous condition on the public entity's property, that the condition proximately caused the injury and created a reasonably foreseeable risk of the kind of injury which was incurred[, a]nd that the dangerouscondition was caused by a negligent employee[,] or the entity knew about the condition and . . . the entity's conduct was palpably unreasonable.
Pursuant to N.J.S.A. 59:4-3:
a. A public entity shall be deemed to have actual notice of a dangerous condition . . . if it had actual knowledge of the existence of the condition and knew, or should have known, of its dangerous character.
b. A public entity shall be deemed to have constructive notice of a dangerous condition . . . only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.
In Cigarroa's case, Judge Vanek dismissed the complaint, finding it was "undisputed . . . Harrison had no actual notice of the pothole in question prior to . . . plaintiff's accident." Regarding whether Harrison had constructive notice of the pothole at issue, the judge found "plaintiff . . . failed to establish a genuine issue of material fact as to whether the alleged pothole existed for such a length of time that it should have been discovered as a dangerous condition through the exercise of reasonable diligence on the part of defendants." Further, the judge concluded plaintiff failed to "make any observations about the [pothole] condition prior to April 1, 2017," despite living across the street from the lot where she fell, "nor did plaintiff know what caused the pothole, how long it existed prior to April 1, 2017, or whether anyone else had ever fallen in the pothole."
After finding plaintiff's expert also failed to "provide any evidence as to the length of time that the subject pothole existed," the judge stated, "the court cannot find . . . there is a factual issue as to whether . . . plaintiff established that the condition existed for such a time that the public entity, in due care, should have discovered the condition and its dangerous character."
Finally, the judge found "the record did not contain evidence to permit a rational factfinder to conclude that . . . Harrison's conduct was palpably unreasonable." She reasoned that "the existence of the pothole was not reported prior to April 1, 2017," and there was no "evidence that the pothole existed for such a length of time unreported that it created a dangerous condition."
Appellate Division Judges Enright and Augostini agreed, adding:
Here, plaintiff provided no proof Harrison had actual notice of the pothole condition where she fell. Therefore, the issue before us - as it was before the trial court - is whether Harrison had constructive notice of the pothole prior to plaintiff's April 2017 fall. Consistent with the standards we have enunciated, absent proof Harrison had constructive notice of the pothole that allegedly caused plaintiff's fall, she cannot prevail on her TCA claim.
The winning attorneys are Edward Joseph Florio and Christopher Kennedy Harriott Esq. of Florio Kenny Raval, LLP.
To report potholes and other hazardous on Lakewood Township owned roads, you can call Public Works at 732-905-3405.
To report potholes and other hazardous on Ocean County owned roads, you can call Ocean County Roads at 732-929-2133.
To report potholes and other hazardous on Ocean County owned roads, you can call Ocean County Roads at 732-929-2133.
To report potholes and other hazardous on NJDOT owned roads, you can call 609-588-6212 or go to https://www.njdotproblemreporting.com/.
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1 comment:
This has been the case for many years across the USA.
Please post email addresses as well.
Calling in a pothole does not create as much of a paper trail, making it more difficult to find record of a particular pothole being called in.
In NYC there is a nonprofit that maps when which potholes are called in to track whether or not the city has sufficient notice (I believe NYC has legal precedent for up to six months for most repairs)
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