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A decision released today 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 March 25, 2020, Nelly Reis parked her car and walked to her office located at 52-54 Rome Street in Newark.
While walking to work, Nelly crossed the intersection outside of the crosswalk. She tripped and fell in a pothole, a couple feet outside of the crosswalk. As a result of the fall, Nelly sustained injuries.
Nelly filed a tort claim notice to the city and subsequently filed a complaint in New Jersey Superior Court in Essex County asserting the large pothole in the roadway created a dangerous condition.
The trial court dismissed the complaint.
In a written ruling just released, Appellate Division Judges Bishop-Thompson and Augostini affirmed the trial court's dismissal of the complaint.
The one simple reason: Nelly did not report the pothole to the city prior to her fall, neither did anyone else report the pothole to the city. Accordingly, the courts found that the city 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.
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.
"Nelly argues the material facts are disputed regarding constructive notice. She further argues that although she did not provide evidence of a complaint regarding the pothole, she produced sufficient evidence through her deposition testimony, video, the July 2019 and October 2020 Google Earth images, and three affidavits to support the existence of the pothole. The record, however, shows otherwise. There is no evidence in the record that Newark had any notice of the pothole in March 2020. Contrary to Nelly's contentions, the evidence in the record falls short of the competent evidence necessary to show Newark had constructive notice of the pothole. Accordingly, we reject Nelly's contentions.
"Further, Nelly did not proffer any evidence that Newark acted in a palpably unreasonable manner. The record shows Newark was not aware of the pothole in March 2020. Additionally, Nelly has not demonstrated that Newark's failure to take action to protect pedestrians from tripping in the pothole was "palpably unreasonable." Nor did Nelly show that behavior by Newark employees was such that "no prudent person would approve of its course of action or inaction."
"We, therefore, conclude plaintiffs' complaint was properly dismissed with prejudice," the Appellate panel concluded.
The winning attorneys are Kenyatta K. Stewart and Ronald Kleckley.
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 NJDOT owned roads, you can call 609-588-6212 or go to https://www.njdotproblemreporting.com/.
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2 comments:
Disgusting! Why do private property owners not get 1 of these excuses to claim we did not get notified or knew about this condition, should they get sued?
Our property insurance would be a lot cheaper if we were allowed to use the Government excuse, sorry no notice provided we had no idea. 🤷
The non-working street lights are reported to JCP&L, but they don't repair them till some 6-9 months later. JCP&L makes a person give a complete Bio prior to reporting a broken street light.
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