A decision just released by the New Jersey Appellate Division highlights the importance of reporting hazardous conditions on the road such as potholes and obroken sidewalk before you get injured by the hazardous condition, as otherwise the owner of the road will not be responsible for any injuries.
On May 27, 2019, Elizabeth A. Patterson tripped over a sidewalk in the Township of Haddon, fell and fractured her arm, which required surgery to correct. She filed a complaint in New Jersey Superior Court in Camden County, seeking damages from the Township and property owners for her injuries.
Patterson's expert testified that the sidewalk "was not in a proper state of repair and created a hazardous condition of an elevation differential."
Township employees had been to the residence in December 2002 for a "sewer plunge out," which entailed opening the metal sewer grate adjacent to the sidewalk slab at issue; and had also plowed snow, removed leaf and heavy brush, swept the street and fixed minor potholes. However, there was no record of any complaint or problem with the sidewalk at issue.
Prior to the filing of notice of tort claim, the Township had no notice of the condition of the sidewalk.
The trial judge dismissed the case, finding that the Township was not liable for the injury.
The judge cited the Tort Claims Act which governs claims against municipalities.
Public property is defined as "real or personal property owned or controlled by the public entity, but does not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity." N.J.S.A. 59:4-1(c).
The TCA further provides:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable. [N.J.S.A. 59:4-2.]
A public entity has 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." N.J.S.A. 59:4-3(a). A public entity has constructive notice of a dangerous condition "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." N.J.S.A. 59:4-3(b).
In this case, the Township had neither actual nor constructive notice of the sidewalk condition, therefore the Township was not liable for the injury, the judge concluded.
In a written decision, Appellate Division Judges Gooden Brown and Puglisi affirmed this ruling.
"The record here reflects the Township had neither actual nor constructive notice of the sidewalk condition. Nothing in the record indicated that any individual notified the Township of the condition. Township employees also performed a sewer plunge out and maintenance on the street, but this work did not directly involve the sidewalk at issue. Although the condition had been in existence for eight years, the differential caused by the settling was negligible. We agree with the trial court's determination plaintiff could not demonstrate the settling was of such an obvious nature that the Township, in the exercise of due care, should have discovered it. Therefore, we are persuaded the Township was entitled to summary judgment," the Appellate panel concluded.
The winning attorney is John M. Palm Esq.
To report potholes and other hazardous conditions Lakewood Township owned roads, you can call Public Works at 732-905-3405.
To report potholes and other hazardous conditions on Ocean County owned roads, you can call Ocean County Roads at 732-929-2133.
To report potholes and other hazardous conditions on NJDOT owned roads, you can call 609-588-6212 or go to https://www.njdotproblemreporting.com/.
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2 comments:
This has long been the case.
Nobody should be surprised by this.
I’m not sure why an attorney would even bring this case knowing it will fail on procedural grounds.
There is a similar case that was recently reported on regarding the crosswalk striping on central Ave.
That case will almost certainly be thrown out on the same grounds. (Unless someone makes a conscious decision to not defend the case)
You should absolutely report such damage anytime you see it. Preferably by email as that creates an electronic trail that is nearly impossible to get rid of. We part taxes to (among other things) maintain infrastructure not defend lawsuits.
Are you allowed to rope off your grass when there's no sidewalk? That what the person at the end of brewers bridge has done.
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