Township Found Not Liable to Pedestrian for Injury Resulting From Tripping Over Depression in Middle of Roadway While Jaywalking

By: Betsy G. Ramos

The Plaintiff Patricia Shilinsky “Shilinsky” went to visit her son at his home on Abbott Avenue in Ridgefield. She parked her car across the street from his home. As she jaywalked across the street, she tripped and fell on a depression in the middle of the roadway. In Shilinsky v. Borough of Ridgefield, 2016 N.J. Super. Unpub. LEXIS 949 (App. Div. Apr. 26, 2016), Shilinsky sued Ridgefield for her personal injury, claiming that the Township negligently failed to maintain and repair the roadway. The issue on appeal was whether the Township’s failure to repair the roadway was “palpably unreasonable.”

This depression ran almost the entire length of the block. The portion of the depression upon which plaintiff tripped was as least 28 inches long, at least 8 inches wide, and 3 inches deep. The plaintiff’s son testified that he had previously complained to the Township’s Department of Public Works about the unevenness of the roadway. Plaintiff also presented evidence that the depression had existed for 2 years before her fall and that is was likely seen by the Township’s DPW Superintendent before her fall.

The trial court granted the Township summary judgment based upon the Tort Claims Act defenses as to lack of notice and dangerous condition. The plaintiff appealed the dismissal of her suit to the Appellate Division.

Upon appeal, the Court noted that the injury occurred while the plaintiff was jaywalking across the middle of the block. The Appellate Division factored in this illegal jaywalking in determining whether the plaintiff had satisfied the elements of the Tort Claims Act so as to be able to pursue her claim.

In rendering its decision on appeal, the Court did not even reach the issue of notice or whether the depression constituted a dangerous condition. The Appellate Division found that Ridgefield’s inaction in repairing this roadway was not “palpably unreasonable,” as defined under the Tort Claims Act. The term “palpably unreasonable” means behavior “that is patently unacceptable under any given circumstances.”

The Court compared this situation to the facts in the Supreme Court case of Polzo v. County of Essex, 196 N.J. 569 (2008), in which the county was held not liable for a fatal accident that occurred when a bicyclist lost control of her bike while riding in a 2 foot wide depression on the shoulder of a county road. The Appellate Division found that a pedestrian illegally jaywalking across the roadway in the middle of the block was similar to the bicyclist’s use of the shoulder in Polzo. Both were using the roadway in a manner for which it was not designed.

The Supreme Court in Polzo emphasized that a roadway is ordinarily used for vehicular traffic and built and maintained for vehicles, not pedestrians. Potholes and depressions are a common feature of our roadways. Further, the Court in Polzo noted that not every defect in a highway is actionable.

Similarly, the Appellate Division found in Shilinsky that the Court’s analysis as to a bicyclist’s use of a shoulder, which was not designed or legal for such use, equally applicable to a pedestrian illegally jaywalking across the roadway in the middle of the block. The inherent dangers facing a jaywalking pedestrian in a roadway would not be faced by an operator of a motor vehicle who would pass harmlessly over a depression, which might cause a pedestrian to trip.

The Appellate Division found that the plaintiff failed to show that Ridgefield was palpably unreasonable because it did not allocate its limited resources to repair a depression in the middle of the street so that it would be safer for pedestrians to cross there. The Court noted that public entities do not have the resources to remove all roadway dangers peculiar to pedestrians.

Ridgefield presented evidence that its failure to fix this roadway was as a result of allocating limited resources to other high-need areas prior to the plaintiff’s fall. Plaintiff tried to argue that it would not have been that costly to simply fill in the depression with a half-ton of asphalt.

The Appellate Division held that the courts do not have the authority or expertise to dictate to public entities the ideal form of road inspect and repair program. It found that, ultimately, Ridgefield had the discretion to allocate its limited funds to projects that were of higher priority. Hence, the Court found that the plaintiff failed to meet her burden to establish that Ridgefield conduct was palpably unreasonable and upheld the summary judgment granted to the Township.

This case points out the viability of the palpably unreasonable defense when dealing with an injury caused by a condition of public property that was not repaired or maintained, despite the public entity’s prior knowledge of the condition. In defending such a claim, one should focus on how the public property was being utilized at the time of the accident, whether the public entity was aware of the alleged defect, and, if so, the rationale as to why it was not repaired. If the public entity can establish that the defect was not repaired due to limited resources that were allocated to more pressing needs, these facts can be used to establish a viable allocation of resources defense.  When coupled with the palpably unreasonable defense, a public entity should have a very defensible claim.

OPRA Does Not Require Public Entities to Create Records Not Already in Existence

By:  Sanmathi (Sanu) Dev

In a published decision dated April 18, 2016, the New Jersey Appellate Division in Paff v. Galloway Township, 444 N.J. Super. 495 (App. Div. 2016) upheld a public entity’s denial of an Open Public Records Act (“OPRA”) request for email logs, finding that OPRA creates no obligation on the public entity to create new records that do not already exist.  Plaintiff submitted an OPRA request to Galloway Township (“Township”) for an itemized list showing the sender, recipient, date, and subject of all emails sent by the Township’s Clerk and Chief of Police for a certain time period.  It is important to note that Plaintiff requested logs of the emails, which did not exist at the time the OPRA request was made, rather than the actual emails.  After the Township denied the request, Plaintiff sued in Superior Court seeking to compel the Township create and provide the email logs.

While the OPRA statute broadly defines a “government record,” to which a member of the public has access, the statute in no way mandates that a public entity create a record or document. The Courts have routinely denied OPRA requests for information, as opposed to a request for a specific government record. The Appellate Division reasoned that the metadata sought by Plaintiff in the form of email logs containing the sender, recipient, etc. of the email constituted information and not a record. Notwithstanding the fact that the information sought was stored or maintained electronically in other government records, namely the emails, the logs themselves are not government records because they would need to be newly created solely in response to a request for information and did not exist prior to the OPRA request.

The Appellate Division rejected Plaintiff’s arguments that it required little effort for the Township to generate the email logs based on its technology and that the Township previously implemented an informal policy of creating these logs in response to certain OPRA requests. Even if a public entity has the technical capacity to create the information or had a past practice of creating the logs, these factors are not compelling because nothing under OPRA requires the creation of new government records after an OPRA request is submitted.

The bottom line – an OPRA request, by definition, must seek a specific government record. If the OPRA request asks for information and necessitates the public entity to create a new document that was not in existence before the request was made, the public entity may deny the request, absent any internal policy.

Capehart Scatchard Attorney Interviewed on Podcast

Capehart Scatchard Shareholder, Thomas D. Begley III, was recently interviewed by Bob Mason, a nationally known elder law attorney from North Carolina, who has created a podcast known as the Trust Hacker.  In these podcasts, Mr. Mason interviews attorneys from all over the country regarding issues effecting trusts, estates, elder law and special needs planning.

In the podcast episode entitled, “Practicing in a Rough Neighborhood,”  Mr. Begley chatted with Mr. Mason about beginning to practice elder law years ago with his father, the challenges of practicing in an aggressive (regulatory and administrative) jurisdiction, selecting fiduciaries, and educating fiduciaries.

A resident of Moorestown, Mr. Begley is the Chair of the Trusts and Estates Group at Capehart Scatchard.  He is routinely recognized as one of the top lawyers in New Jersey by a variety of publications including Super Lawyers, SJ Magazine and South Jersey Magazine.  He is a Certified Elder Law Attorney as recognized by the National Elder Law Foundation.

Capehart Scatchard Associate to Write Column for National Claims Publication

Capehart Scatchard is pleased to announce that Nicholas A. Dibble, Esq. will be writing a recurring column for WC Magazine.  The magazine is published six times a year and covers the trends and topics of interest to professionals responsible for the cost-effective resolution of workers’ compensation claims. Mr. Dibble’s column will focus on legal issues in the workers’ compensation industry. The archives for the publication can be accessed at: http://theclm.wcmagazine.epubxp.com/.

Mr. Dibble, a Haddonfield resident, represents insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation. He received his law degree from Rutgers University School of Law in Camden and his B.A. degree in Political Science from Haverford College. Upon law school graduation, Mr. Dibble worked as a judicial law clerk to the Honorable Benjamin C. Telsey, Superior Court of New Jersey, in Bridgeton, NJ.  He is admitted to practice law in New Jersey and Pennsylvania.

Capehart Scatchard Partner Installed as President of NJ-AAML

On June 11, 2016, Amy Goldstein was sworn in as President of the New Jersey State Chapter of the American Academy of Matrimonial Lawyers (NJ.AAML.org).   The AAML is a national non-profit membership organization of 1,600 members that encourages the study, improves the practice, elevates the standards and advances the cause of matrimonial law to the end that the welfare of the family and society is protected. Ms. Goldstein has been a Fellow of the AAML since 1995 and has served in numerous positions with that organization.

Ms. Goldstein also served as an appointed member of the New State Bar Association Family Law Executive Committee for nine years and has been appointed to serve on many other state and county legal organizations. She has been named for many years by the Martindale-Hubbell Bar Register as a Preeminent Lawyer and she has been selected by her peers for inclusion in The Best Lawyers in America© (copyright 2013 by Woodward/White, Inc. of Aiken, SC) consecutively every year since 2010. Ms. Goldstein handles all issues related to family law and lectures and writes frequently on those topics. Ms. Goldstein received her J.D. from the University of Pennsylvania School of Law in 1982. Her full biography is available at www.capehart.com.

Rutgers Student Receives Scholarly Award from Capehart Scatchard Law Firm

2016 Legal Writing Award-4x6

Ryann Aaron was the recipient of the 17th Annual Blaine E. Capehart Legal Writing Award, presented at the law firm of Capehart Scatchard on May 16th.  The award recipient graduated from Rutgers University School of Law in Camden on May 19, 2016.

The Mt. Laurel-based firm presented Mr. Aaron with a $2,500 award in recognition of his exemplary legal writing and research abilities.  The Firm offers this award to a graduating Rutgers – Camden law student on an annual basis in honor of the late Blaine E. Capehart.

According to Thomas J. Walls, Jr., Workers’ Compensation Department Shareholder, “Mr. Capehart was a mentor to many of us within our firm. He took a keen interest in our practices and development as lawyers and individuals. He valued excellence, particularly in legal writing. He also valued a common sense approach to the law and having read Ryan Aaron’s submission, I am sure that he would be impressed by his straightforward, well-reasoned, and easily understood survey and analysis of an interesting and cutting edge legal issue.”

Mr. Walls further noted, “Our firm also has a deep connection with Rutgers-Camden School of Law. Our firm traces its roots to the city of Camden back to 1876, and like the school of law, has grown ever since. We’re proud to say that about one third of our attorneys are Rutgers-Camden graduates, so we value our relationship with the law school, and our combined commitments to not only South Jersey’s legal community, but to our state and region as a whole.  As part of that commitment, we are pleased to join together for the presentation of this award honoring Blaine Capehart, an attorney and icon of our firm who completed his long and distinguished legal journey, and another, who is just beginning his.”

Capehart Scatchard Shareholder Addresses New Jersey Association of Counties

Capehart Scatchard Shareholder Thomas J. Walls, Jr., Esq. recently addressed attendees at the New Jersey Association of Counties Annual Conference held in Atlantic City, New Jersey.

Mr. Walls’ presentation was entitled, “Reinventing Your Workers’ Comp Program to Reduce Losses and Costs.”  In his presentation he covered what is driving comp losses and what can be done to prevent losses.  Additionally, he spoke on maximizing the employer’s right to authorize the treating physician in workers’ compensation cases.

Mr. Walls, a Hamilton Township resident, is certified by the Supreme Court of New Jersey as a Workers’ Compensation Law attorney. He focuses his practice in workers’ compensation matters defense matters and also has extensive experience in the litigation of personal injury matters.

Capehart Scatchard Associate Elected to Charitable Foundation

Capehart Scatchard is pleased to announce that Nicholas A. Dibble, Esq. was recently elected to the Board of Trustees of the Magee Rehabilitation Hospital Foundation.

The mission of the Magee Rehabilitation Hospital Foundation is to support, raise funds and obtain resources for programs, services, education, and research at Magee Rehabilitation Hospital enabling patients, their families, and other members of the community with physical and cognitive disabilities to achieve their highest quality of life.

Mr. Dibble, a Haddonfield resident, represents insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation. He received his law degree from Rutgers University School of Law in Camden and his B.A. degree in Political Science from Haverford College. Upon law school graduation, Mr. Dibble worked as a judicial law clerk to the Honorable Benjamin C. Telsey, Superior Court of New Jersey, in Bridgeton, NJ.  He is admitted to practice law in New Jersey and Pennsylvania.