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Plaintiff’s Written Injury Report of Pothole on City’s 311 Online Reporting System Found to be in Substantial Compliance of Tort Claims Act Notice Requirement

Plaintiff Eileen Martinez fell into a pothole on a Hoboken street on March 20, 2018, injuring her foot. On that same date, she messaged the City’s 311 online reporting system, identifying herself by her username and notified the City of the time, location, cause, nature and extent of her injury. Two days after receiving plaintiff’s message, the City sent an acknowledgment email to plaintiff and assigned a tracking number. The issue in Martinez v. City of Hoboken, 2019 N.J. Super. Unpub. LEXIS 2580 (App. Div. December 16, 2019), was whether plaintiff’s 311 online written notice substantially complied with the 90 day notice requirement under the Tort Claims Act.

When plaintiff submitted her 311 online reporting system message, she also attached photographs of her injured foot and the pothole. She did not include her full name and address in the 311 online submission to the City, nor did she sign the message other than to identify her username.

Six months after she fell, plaintiff retained counsel who notified the City of plaintiff’s injury and stated that plaintiff had complied with the Tort Claims Act by submitting the information to the City’s 311 online reporting system on March 20, 2018. Her attorney inquired of the City if it had a specific notice of claim form to proceed with her claim. Counsel specifically asked if the City considered plaintiff’s March 20 notice deficient or noncompliant with the TCA. The City forwarded its official notice of claim form to plaintiff’s counsel for completion but did not advise whether it deemed plaintiff’s March 20 notice deficient or noncompliant with the TCA. Plaintiff’s counsel thereafter submitted the completed official notice of claim form to the City five days after receipt.

Having received no response from the City regarding the acceptance of her notice of claim, in January 2019, plaintiff filed a motion to deem her March 20, 2018 notice sufficient. In the alternative, plaintiff requested permission to file a late notice of tort claim.

The City opposed the motion, contending that it did not receive a tort claim notice from plaintiff until after October 15, 2018, seven months after the accident. Hence, the City argued that it could not have an expert opine about any alleged defect at the time of the accident, as road conditions significantly changed over seven months in the City due to weather, traffic, snow plowing and the passage of time. The City contended it was severely prejudiced by its inability to properly investigate.

The motion judge determined that the plaintiff’s March 20 notice substantially complied with the TCA. The judge found that the text notification on or about the day of the accident contained “sufficient information as to the type of the accident, the location, the alleged cause and the nature of the injuries to substantially comply with the tort claim notice requirements.” On appeal, the defendant City argued that the judge made a mistake in deeming the plaintiff’s March 20, 2018 notice to be in substantial compliance with the requirements of the TCA.

Pursuant to the Tort Claims Act, no person may bring an action against a public entity for a personal injury unless the person presents the public entity with a notice of claim within 90 days after the cause of action accrued. Plaintiff contended that her March 20, 2018 message to the City’s 311 online reporting system filed within 90 days of her injury substantially complied with the TCA.

The Appellate Division stated that the doctrine of substantial compliance is an equitable doctrine intended to “avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute’s underlying purpose.” Further, the Court noted that to warrant application of the doctrine of substantial compliance, the moving party must show: “(1) the lack of prejudice to the defendant party; (2) steps taken to comply with the statute; (3) a general compliance with the purpose of the statute; (4) reasonable notice of the plaintiff’s claim; and (5) a reasonable explanation by the moving party for why there was no strict compliance with the statute.” Here, the Appellate Division found that the City failed to show prejudice and plaintiff provided a reasonable explanation for her lack of strict compliance with the TCA’s notice of claim requirements.

The Court found that the 311 message to the City’s online reporting system included the date and location of the plaintiff’s injury, the injured body part, a photograph of her injury and the pothole, offered to provide additional information and photographs to the city to allow it to investigate her claim and me and her email address. Further, two days later, the City sent a reply to her message and provided tracking numbers under her claim. Thus, during the 90 day time period from the date of her injury, plaintiff believed her 311 message to the City constituted sufficient notice of her claim. The court found that the plaintiff did take steps to comply with the TCA notice of claim and achieve the TCA’s purpose by notifying the City of her injury.

The Appellate Division was satisfied that the plaintiff had provided an acceptable explanation for failure to strictly comply with the notice of claim requirements of the TCA. Further, the Court rejected the City’s argument that it was prejudiced as result of the March 20 notice of claim. While it claimed to have never received this notice, it did respond to plaintiff and assigned a tracking number. Thus, the Court was satisfied that the 311 message was actually received.

Last, although the City claimed prejudice, just a sweeping generalization of prejudice is not enough to satisfy the prejudice requirement. The City was given the exact street location of the pothole that caused the plaintiff’s injury. The Court noted that the City could have inspected the intersection to confirm the condition of the road. There was nothing in the record explaining why under the circumstances, the City was unable to properly investigate any claim of the plaintiff or why it could have not have had an expert opine about any alleged defect at the time of the incident because plaintiff did provide information with the exact location of the pothole on March 20, 2018.

In summary, the Appellate Division found that the motion judge did not abuse her discretion in finding the plaintiff’s 311 message submitted to the City on March 20, 2018 to be in substantial compliance with the TCA’s requirements for notice of claim. Thus, the Appellate Division affirmed the trial court’s decision, finding that this 311 online report sufficient to satisfy the notice requirement of the Tort Claims Act, which will permit the plaintiff’s personal injury claim to proceed.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Neither Township, nor County Found Liable for Fatal Pedestrian Accident Due to Plaintiff’s Failure to Prove Roadway in a Dangerous Condition

Plaintiff’s Decedent Amelia Cius was crossing the roadway at 9:30 pm when she was fatally struck by a car on Whitehorse-Mercerville Road. The driver of the car explained that he did not see the decedent because she was wearing dark clothing. She was not in the crosswalk while crossing the road. The issue in Deravil v. Pantaleone, 2019 N.J. Super. Unpub. LEXIS 2252 (App. Div. Nov. 1, 2019) was whether the Township and the County could be held responsible for the accident on the basis that the roadway was in a dangerous condition.

The area where the decedent was struck lacked functioning street lights. Also, the plaintiff alleged that the trees and utility poles obstructed the view of the road for both pedestrians and drivers.

The sidewalk on the eastern side of Whitehorse-Mercerville Road abruptly terminated at the point of impact. The plaintiff’s counsel speculated that the decedent entered the roadway because the sidewalk ended. However, plaintiff’s complaint alleged that she was attempting to cross the road when she was struck by an oncoming car.

In a summary judgment motion, the Township and the County both argued that they were not liable under the Tort Claims Act. The Township contended that it did not own or control the roadway. The County argued that the roadway was not in a dangerous condition. Both argued that the decedent “failed to exercise due care in crossing the road.”

The trial judge granted summary judgment, relying on the Supreme Court’s case of Vincitore ex rel. Vincitore v. N.J. Sports & Exposition Auth., in which the Court determined that the purpose of the road “was to facilitate vehicular travel and plaintiff presented no evidence suggesting the road was unsafe for that purpose.” Further, the judge found that there was no evidence that the road was unsafe for pedestrians if used “in a normal and foreseeable manner by crossing at designated crosswalks.” The decedent’s failure to use the designated crosswalks was unreasonable.

The Appellate Division agreed with the trial court judge that summary judgment was warranted as to the two public entities. It noted that the plaintiff presented no evidence that the roadway itself was dangerous. The Court stated that “[t]he termination of the sidewalk, inadequate street lighting, or the location of trees and utility poles were not physical characteristics attendant to the road.” To determine whether a dangerous condition of public property exists under the Tort Claims Act, one must examine “the physical condition of the property itself and not to the activities on the property.”

The Appellate Division also noted that the driver of the car was using the road as intended at the time of the accident. The decedent’s use of the road, however, was “so objectively unreasonable” that the condition of the roadway itself could not have caused the injury. The decedent, wearing dark clothing, was walking across a four lane roadway at night. The Court found that the decedent’s conduct “was indicative of a lack of due care, precluding a finding of any actionable dangerous condition to impose liability on the Township or the County.”  Thus, the Appellate Division affirmed the dismissal of the Complaint as to both public entities.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Municipality Found Not Liable For Pedestrian Accident Due To Tort Claims Act Sign Immunity

Plaintiff, Alexander Ferris, at age 13 was injured when struck by a car driven by defendant Aida Blanco-Alquacil as he crossed the road in the crosswalk at an intersection in the Borough of Middlesex.  His parents filed a lawsuit, alleging negligence by the defendant driver, as well as the Borough of Middlesex, claiming that the intersection was a dangerous condition and it lacked adequate signage.  The issue in Ferris v. Blanco-Alquacil, 2019 N.J. Super. Unpub. LEXIS 2125 (App. Div. October 17, 2019) was whether the Borough would be liable for failure to install an upright crosswalk sign at the intersection.

The Borough had obtained a summary judgment in its favor, arguing that the intersection was not a dangerous condition under the New Jersey Tort Claims Act.  It obtained an expert report that the crosswalk and intersection were not a dangerous condition because the crosswalk was clearly marked with a street light above.  The plaintiff had opposed that motion, arguing that the intersection did not have an upright crosswalk sign, as did the crosswalks on the same road and intersections before and after.

In granting Middlesex’s Motion for Summary Judgment, the trial court judge determined that the lack of the sign could not have been a proximate cause of the accident.  In the defendant’s deposition, the defendant acknowledged that she would “slow down” and be “more careful” upon seeing an upright crosswalk sign.  She was familiar with this intersection, driving this road twice per day and going slowly, because there are many businesses in the area and a lot of people walk there.  She saw the crosswalk lines at the subject intersection.  Hence, the trial court judge found that the fact that there was no upright sign is moot because the defendant testified she was aware of the crosswalk and looked for pedestrians.

Upon appeal, the plaintiff argued that there was a genuine dispute whether the absence of an upright crosswalk sign at the intersection could have been a proximate cause of the accident.  In opposition, Middlesex disputed this argument and also added that the Tort Claims Act sign immunity defense, N.J.S.A. 59:4-5, applied to bar the claim against it. This provision specifically immunizes the public entity “for an injury caused by the failure to provide ordinary traffic signals, signs, markings, or other similar devices.”  While the sign immunity defense had not been specifically raised below, the Appellate Division did consider it upon appeal.

The plaintiff acknowledged that the intersection and crosswalk where the accident occurred did not inherently pose “a substantial risk of injury” when “used with due care.”  Plaintiff acknowledged that the crosswalk was appropriately marked and visible to approaching drivers.  Nevertheless, the plaintiff argued that “a reasonable fact finder could conclude the presence of upright crosswalk signs at other adjacent intersections on the road transform this intersection, which lacked a sign, into a dangerous condition under the TCA.”

The plaintiff argued that the Civalier by Civalier v. Estate of Trancucci case applied.  In the Civalier case, there was a missing stop sign due to vandalism, which was an apparent recurring problem in a municipality.  One of the drivers knew there was a stop sign that regulated the intersection and assumed that he had the right of way.  The other driver, however, proceeded into the intersection, resulting in a horrible accident, causing three fatalities and two injuries.

In Ferris, the Appellate Division found that there was nothing in the motion record demonstrating that this intersection in question ever had an upright crosswalk sign and, further, the record was clear that the defendant never relied upon the previous presence of the sign in driving down the road on the night of the accident.  The Appellate Division found that “in the absence of any proof that Middlesex ever placed an upright crosswalk sign at this particular intersection, this case is similar to numerous other cases applying the sign immunity of N.J.S.A. 59:4-5 to defeat a plaintiff’s claim of a dangerous condition of public property.”

The Court further found Middlesex’s decision to place signs at other intersections could not overcome the sign immunity defense, which immunized Middlesex’s discretionary decision not to post an above-ground crosswalk sign at the intersection in question.  The Appellate Division held that without other proof that the crosswalk and intersection formed a dangerous condition, it was appropriate for a trial court to grant summary judgment.  Thus, the Court affirmed the trial court’s order granting summary judgment in favor of the Borough of Middlesex.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Municipality Found Not Liable For Fall Due to Uneven Sidewalk

Plaintiff Allan Suarez sued Ridgefield Park for damages resulting from injuries he suffered when he claims to have tripped on an uneven portion of a sidewalk across the street from his home.  Ridgefield Park successfully obtained a summary judgment dismissal on the trial court level pursuant to the Tort Claims Act immunities.  In Suarez v. Gallagher, 2019 N.J. Super. Unpub. LEXIS 2003 (App. Div. September 30, 2019), the plaintiff appealed the summary judgment ruling, arguing that he had satisfied the Tort Claims Act requirements so as to be able to pursue the claim against Ridgefield Park.

In the appeal, plaintiff argued that he had satisfied the Act’s notice requirements, that the sidewalk constituted a dangerous condition, and Ridgefield Park’s failure to ameliorate the condition was palpably unreasonable.  The Appellate Division rejected all of these arguments.  First, the Appellate Division addressed the dangerous condition contention.  The Court noted that the sidewalk slabs were alleged to be uneven, with one protruding one and a half inches above the other.  The Appellate Division stated that “uneven sidewalk slabs do not necessarily constitute dangerous conditions as defined by the Act.”  It pointed out that a defect is not a dangerous condition merely because it exists and that an alleged defect must be more than “minor, trivial or insignificant.”  The Court found that a declivity of one or one and a half inches in a sidewalk is a commonplace defect and does not meet the Act’s definition of a dangerous condition.

Second, the Court found that the plaintiff also failed to show that Ridgefield Park had actual or constructive notice of the alleged defect, as required by the Act.  The plaintiff had presented no evidence to suggest that Ridgefield Park received any complaints about the sidewalk.  Instead, the evidence demonstrated that “neither plaintiff, who lived across the street, nor plaintiff’s neighbor whose property abutted the allegedly defective sidewalk, ever uttered a complaint about the sidewalk.”  Further, the Appellate Division rejected the argument that because Ridgefield Park has a shade tree commission and would fix defects when brought to its attention provided a basis for finding it possessed constructive notice of any sidewalk defects that were not brought to its attention.

Thus, the Appellate Division affirmed the trial court’s grant of summary judgment, dismissing the law suit against Ridgefield Park.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Municipality Not Entitled To Weather Or Snow Removal Immunities If Accident Resulted From Other Causes

Plaintiff Barbara Santopietro alleged that she fell on black ice on the roadway in front of her home in the Borough of Union Beach.  Her husband Gabriel asserted that whenever it rained, large pools of stagnant water formed in front of their home, which he reported to the Borough.  The issue in Santopietro v. Borough of Union Beach, 2019 N.J. Super. Unpub. LEXIS 1551 (App. Div. July 8, 2019) was whether the Borough was entitled to common law snow removal immunity and/or weather immunity under the Tort Claims Act to avoid liability for the plaintiff’s fall if the fall occurred due to ice forming from causes other than a snowstorm.

After the plaintiff’s husband complained to the Department of Public Works about the pools of stagnant water that reoccurred on his street after a rainfall, their road was milled by the Borough.  As a result of these efforts, the reoccurring pooling problem was temporarily eliminated.  The milled road then directed water to a sewer grate, which eliminated the ponding.

About two years later, the road was repaved following the installation of a water main and the pooling in front of their home came back.  There was no drain, and according to Gabriel, it would get bigger and bigger, now coming up their driveway and into their front yard.  Plaintiff fell on black ice while walking to her car and suffered injuries that she claims were caused by this “dangerous condition.”

The Borough argued to the trial court that it had common law snow removal immunity and/or weather immunity under the Tort Claims Act.  Pursuant to N.J.S.A. 59:4-7, public entities have immunity “for an injury caused solely by the effect on the use of streets and highways of weather conditions.”  Also, under the Miehl v. Darpino case, the courts recognize immunity for injuries caused by the snow removal activities of public entities.

The Appellate Division, however noted that the weather immunity statute (N.J.S.A. 59:4-7) did not apply in cases where injuries were allegedly caused by a combination of weather and other factors.  Also, the common law snow removal immunity cases consider claims solely based upon negligent snow removal, independent of any other cause.  If there was conduct that was unrelated to the snow removal activity, the court noted that the cause of action could still be maintained despite this common law immunity.

In this case, the Borough contended that it had snowed two or three days before the plaintiff’s accident and the plaintiff did not observe any water on the ground that morning. The plaintiffs produced an expert report as to the improper road re-pavement after the water line installation. The report claimed that the repaving worsened the water accumulation problem in front of the plaintiff’s home and that the municipality failed to address the flooding and draining problem caused by the improper slope, which lead to the icy condition on the roadway and the plaintiff’s fall.

The Borough argued that it appeared that plaintiff slipped and fell on black ice, which was a result of melting and re-freezing after the Borough’s snowplow plowed the roadway a few days prior to her accident.

The plaintiff’s version, however, was that the sheet of ice was as a result of the pooling on the street that was not resolved by the Borough, as opposed to the result of melting and re-freezing.

The Appellate Division agreed with the plaintiffs that the trial court erred when it held that the Borough enjoyed common law snow removal immunity.  The evidence showed a possible cause for the plaintiff’s injuries other than the Borough’s snow removal efforts.  Not only would the Borough not be afforded immunity under the common law but also it would not have immunity under the Tort Claims Act weather immunity defense.

However, there was no evidence on the record that the Borough had any notice of the icy condition prior to the accident. Under the Tort Claims Act, the plaintiffs were required to establish that the road was in a dangerous condition and that the Borough had actual or constructive notice of this condition within a sufficient amount of time to take protective measures.

Even though the plaintiff’s husband may have complained to the Borough’s mayor that there was still water in front of their house after it was re-paved and that a neighbor may have also informed the mayor about the flooding in front of the house, the notices to the Borough were not about the formation of black ice.  Rather, they were about flooding after a rainfall.  The plaintiff did not slip on a large accumulation of frozen water.  Rather, she slipped on a thin coating of black ice.

Hence, the Appellate Division found that these alleged verbal complaints by the plaintiff’s husband and his neighbor did not put the Borough on notice of the condition that caused the plaintiff’s fall.  Therefore, the Appellate Division did find that the Borough was immune after all, based upon the lack of notice, and affirmed the trial court’s grant of summary judgment to the Borough.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Court Denies Plaintiff’s Motion for Leave to File Late Notice of Tort Claim Despite Plaintiff’s Medical Issues

On September 26, 2017, Plaintiff Antoinette Marra tripped and fell on the property of defendant Hopatcong Senior Center and Borough of Hopatcong.  She suffered a broken arm and fractured hip, which necessitated hip replacement surgery, among other injuries.  The issue in Marra v. Hopatcong Senior Center, 2019 N.J. Super. Unpub. LEXIS 1685 (App. Div. July 26, 2019), was whether the plaintiff’s injuries constituted “extraordinary circumstances,” justifying the filing of a late notice of tort claim.

Following the plaintiff’s surgery, she was transferred to a nursing home where she spent two months recovering.  Thereafter, she was discharged and began in home care.

Plaintiff did not seek legal counsel until March 2018.  She was unaware of the 90 day time period for which to file a notice of tort claim.  On May 18, 2018, she filed a personal injury complaint and a motion for leave to file a late notice of tort claim.  This motion was filed 4½ months after the deadline for a timely filing of her tort claims notice.  In her motion, she alleged that she suffered from various medical conditions, constituting exceptional circumstances, and argued that those conditions warranted an acceptance of her late notice of claim.

The defendants opposed her motion and cross-moved to dismiss the plaintiff’s complaint.  However, the trial court denied the cross-motion and granted plaintiff’s motion, permitting the filing of the late notice of tort claim.  The trial court judge found that the plaintiff suffered numerous health issues after her hip replacement surgery which precluded her from timely pursuing her personal injury claims against the defendants.  Further, he found that the plaintiff was so incapacitated that she was unable to file a notice within 90 days.

The judge noted that she was diagnosed with major depressive disorder and was bedridden at all times except for when she was in physical therapy.  She had difficulty keeping food down and could not complete basic tasks of personal hygiene.  She also had cataract surgery within a few days of the end of the 90 day time period and remained confined to her home for an extended period of time.  She was expected to need home nursing care for a further 8 weeks or more.  In summary, the trial court held that these limitations were sufficient to qualify as “extraordinary circumstances.”

The defendants appealed this finding and argued that plaintiff’s medical issues were not so severe or debilitating so as to preclude her from filing a timely notice of tort claim.  Because she had failed to demonstrate extraordinary circumstances, the defendants contend that her complaint should have been dismissed.

The Appellate Division noted that the Tort Claims Act imposes strict requirements upon litigants seeking to file claims against public entities, including filing a notice of claim no later than the 90th day after accrual of the cause of action.  If a plaintiff misses the 90 day deadline, a notice of tort claim may be filed up to one year after the claim but only if “extraordinary circumstances” excuse the delay and the public entity would not be “substantially prejudiced.”

The Appellate Division noted that in reviewing the extraordinary circumstances requirement based upon a plaintiff’s medical condition, the courts look to the severity of the medical condition and the consequential impact from the plaintiff’s ability to pursue the claim.

Here, the Court found that the plaintiff did not demonstrate that her medical issues were so “severe, debilitating, or uncommon” that she was unable to contact an attorney to pursue her claims.  The Appellate Division noted that the plaintiff’s certification described her recovery from her injuries and her depressed mental state during her recovery.  However, nowhere in the record was there any medical evidence from a physician that she was “physically or mentally unable to contact an attorney to file a timely notice of claim.”  Further, upon her discharge from the nursing home, she still had 30 days within which to file a timely notice of claim.  The Court stated that there was no evidence in the record that the plaintiff was bedridden after she was discharged from her nursing home.  Even though she required assistance with her activities of daily living, the Appellate Division held that such assistance did not constitute a medical condition so severe and debilitating so as to impact her ability to pursue her personal injury claims.

The Court noted that requiring assistance with grooming and eating are common after surgery.  Her depression during her extended recovery period was not uncommon and she was treated for depression.  Further, the Appellate Division found that the plaintiff had “ample opportunity” after her discharge from the nursing home to seek assistance from others to pursue her personal injury claims in a timely manner.

With respect to her being on multiple pain medications, the Court stated that there was no evidence in the record that these medications compromised her cognitive ability.  Specifically, the Court found that “the general descriptions offered by plaintiff of her post-injury pain, need for assistance with activities of daily living, and resulting depression are insufficient to qualify as extraordinary medical conditions allowing a late filing of a notice of claim.”

The Appellate Division emphasized that the record was devoid of any medical opinion that she suffered from a severe or debilitating medical condition that precluded her ability to seek counsel on a timely basis.  Rather, the record provided by plaintiff contained “self-serving and subjective statements of plaintiff’s pain and depression.”  The Appellate Division noted that the trial judge mistakenly assumed facts regarding the plaintiff’s condition due to the lack of medical or psychological treatment records.

Because the plaintiff failed to demonstrate extraordinary circumstances, the Appellate Division reversed the trial court judge’s order allowing plaintiff to file a late notice of tort claim.  Hence, the Court remanded the matter back for the trial court judge to enter an order granting defendant’s motion and dismissing plaintiff’s Complaint.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Municipality Found Not Liable For Bicyclist Who Suffers Injury When Bike Hit Patch Of Loose Gravel In Roadway

Plaintiff Joanne Green was riding her bicycle in the middle of a street located in defendant Borough of Englewood Cliffs.  After making a right hand turn into an intersection, she hit a patch of loose gravel in the middle of the intersection, which caused her to fall off her bike and suffer injuries.   Her claim was that the loose gravel originated from either an inadequate repair of a pothole or other defect on one of the roads that formed the intersection.  The issue in Green v. Borough of Englewood Cliffs, 2019 N.J. Super. Unpub. LEXIS 1571 (App. Div. July 9, 2019) was whether the defendant municipality could be liable for the plaintiff’s injury suffered due to the condition of the roadway.

Englewood Cliffs maintains a total of 37 road miles, including the two roads that form the intersection in which the plaintiff fell.  The superintendent at the DPW testified that he had limited staff to maintain the roads given the workload of the department.  He also testified that he was unaware of any loose gravel or potholes in the intersection before the plaintiff’s fall.

The municipality repaired potholes using both a hot asphalt method and cold patch mix, depending upon the weather.  The DPW superintendent claimed that the gravel discovered in the intersection was not made of material that the municipality used for any purpose.  He opined that the gravel may have fallen from a truck that had been improperly covered.

The plaintiff utilized an expert who photographed the intersection and claimed that it showed deteriorating conditions of the roadway and temporary/improper repairs.  The expert opined that the color of the loose gravel indicated the gravel came from a breakdown of asphalt pavement, which subsequently migrated to the middle of the intersection.  Further, he claimed that there were numerous areas of the road that had been patched with hot mixed asphalt or cold patched asphalt.  Further, he opined that the roadway repair process utilized by the DPW resulted in a dangerous condition at the subject intersection at the time of plaintiff’s fall.

The defendant moved for summary judgment, which was granted by the trial court.  The trial court found that the record did not show that the injury was proximately caused by the dangerous condition but, rather due to the plaintiff’s lack of attention.  Further, the court concluded that there was no merit to plaintiff’s claim that defendant’s actions or omissions with respect to maintaining the subject area of the road were palpably unreasonable.  The plaintiff appealed this decision to the Appellate Division.

To be able to pursue a claim against a public entity for a dangerous condition of public property, based upon the Tort Claims Act, the Appellate Division noted that the plaintiff must prove the following five elements:

    1. A dangerous condition existed on the property at the time of the injury;
    2. The dangerous condition proximately caused the injury;
    3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred either because (a) the dangerous condition was caused by a negligent employee, or, alternatively, (b) the public entity knew or should have known about the condition; and
    4. The entity’s conduct was palpably unreasonable.”

Here, the Court accepted as undisputed that there was gravel in the middle of the intersection and that it caused plaintiff to skid and fall.  Further, for purposes of the motion, it accepted as true the plaintiff’s contention of the gravel in which he skidded was caused by the municipality’s use of materials on the road that easily crumbled, which caused the loose gravel to form and, further, the defendants failed to promptly remove such gravel.  However, the Appellate Division agreed with the trial court that the municipality’s conduct was not palpably unreasonable.

The Court noted that the term palpably unreasonable “implies behavior that is patently unacceptable under any given circumstance.  Further, the court noted that “for a public entity to have acted or failed to act in a matter that is palpably unreasonable, it must be manifest and obvious that no prudent person would approve of its course of action or inaction.”

The Appellate Division here cited back to the Supreme Court’s decision in Polzo.  In Polzo, the Supreme Court observed that, “notwithstanding that roadways are used by bicyclists, roadways generally are built and maintained for cars, trucks and motorcycles, not bicyclists.”  The Appellate Division recognized “that bicyclists do face inherent dangers on roadways, such as potholes, which do not present hazards to the drivers of and the passengers and motor vehicles – the general, intended users of the roadways.”  Further, the Count found that roadways cannot possibly be made or maintained completely risk free for bicyclists.  The Court noted further that not every defect in a highway, even if caused by negligent maintenance, is actionable.

The Appellate Division found that even if the defendant’s actions were the proximate cause of the plaintiff’s injuries, the plaintiff failed to meet her burden of establishing that defendant’s conduct was palpably unreasonable.  The Court found that it was not palpably unreasonable for defendants to fail to remove the gravel at issue here because it was material that a car would harmlessly pass over.  Municipalities do not have a duty to make roadways risk free for bicyclists.  Last, the Court stated that a public entity “in choosing when and what repairs are necessary might reasonably give lesser priority to correct conditions harmless to vehicles.”

Thus, the Court did not need to reach the issue of whether plaintiff’s actions were the proximate cause of her injuries and it affirmed the trial court decision in dismissing the case.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Contractor Who Missed 90 Day Deadline for Serving A Notice of Tort Claim by Two Days Barred by Court To Pursue Tort Claim Against Municipality

Plaintiff Lakeside Construction (“Lakeside”) was a contractor who was hired to perform various site improvements at a school located in the Township of Sparta.  Those site improvements included the installation of an underground pipe to connect the new school building to the municipal water main.  Several weeks after a person who allegedly identified himself as a Township Inspector came out and inspected the pipe, the Township’s Director of Utilities sent a letter to Lakeside that it had impermissibly installed the pipe without authorization and without an inspector present.  Lakeside was forced to incur the expense to install a duplicate pipe and served a Tort Claims Act notice upon the Township, claiming damages for this expense.  The issue in Lakeside Construction v. Township of Sparta, 2019 N.J. Super. Unpub. LEXIS 1062 (App. Div. May 9, 2019) was the accrual date for Lakeside’s claim, as well as whether missing the 90 day Tort Claims Act notice deadline by two days would bar Lakeside from pursuing its tort claims.

Lakeside claimed that a person who identified himself as a Township Inspector had come out on November 10, 2016 and observed the installation of the first section of pipe. The alleged inspector left the site and Lakeside workers completed installing the pipe that day.  It was thereafter on December 29, 2016 that Mr. Spaldi, the Township’s Director of Utilities, advised Lakeside that it had impermissibly installed the pipe.  He sent Lakeside an e-mail, informing it that the water service for the project was not accepted and that water supplied to the project would not be authorized.  While Lakeside disagreed with Mr. Spaldi’s finding that the pipe had not been inspected, they were forced to install a duplicate water line parallel to the one they had already installed because it was under time pressure to complete the overall project for the school so that it would receive a Certificate of Occupancy and the building could be opened promptly.  Thus, according to Lakeside, it incurred expenses in the amount of $50,409 in installing the duplicate pipe.

Thereafter, it sued the Township, alleging negligent supervision by the Township and the Water Utility in hiring, retaining and supervising the Township’s Director of Utilities Spaldi and another Township Official by the name of Michael Sportelli.  The complaint also alleged negligent failure to train, negligence in carrying out ministerial functions, and tortious interference.

The defendants filed a Motion to Dismiss the Complaint, arguing that the Tort Claims Notice that Lakeside had served was not served within the 90 day time period prescribed by N.J.S.A. 59:8-8.  The defendants asserted that any cause of action for negligence accrued on December 29, 2016, the date of Mr. Spaldi’s e-mail advising that the pipe installation was unauthorized.  With that accrual date, notice of any tort claim had to be served on the Township no later than March 29, 2017.  However, the notice was not served until March 31, 2017, the 92nd day after the December 29, 2016 email.

Lakeside opposed the dismissal motion, arguing that its claims did not accrue until mid-January 2017 when it incurred the expense of installing the duplicate pipe.  Further, Lakeside argued that the Township’s ongoing refusal to change its position about the legitimacy of the original November 26 installation amounted to a continuing tort, which it claimed would defer the time of accrual.

At the trial court level, the Judge granted the defendants’ motion, finding that the injury to Lakeside first manifested itself when it received the notice from Mr. Spaldi that its original installation was unacceptable.  Lakeside’s subsequent expenditures on the duplicate pipe did not delay the accrual date.  Further, the judge rejected Lakeside’s theory of a continuing tort.

Upon appeal, Lakeside continued to argue that the accrual did not occur until mid-January 2017 and, hence, its Tort Claims Act notice was timely served.  It also argued, in the alternative, the theory of continuing tort, alleging that the defendants’ persisting refusal to retract the December 29 e-mail represented an ongoing form of negligence by inaction.

The Appellate Division agreed with the trial court that Lakeside’s tort based claims against the Township and its officials did accrue on December 29, 2016, the date of the Spaldi e-mail.  Lakeside’s complaint characterized the e-mail as a wrongful tortious act, one based upon a false belief that a Township Official had not inspected the original pipe connection when it was installed in November 2016.

The Appellate Division also agreed with the trial court that the accrual of the claim was not delayed until the expenditure of funds by Lakeside to install a replacement pipe in mid-January 2017.  It pointed to the Supreme Court decision of Beauchamp v. Amedio, in which the Court held that the date of accrual of a personal injury claim arising from an accident is the date when the accident occurred and when the initial harm was inflicted, even though the plaintiff’s bodily injuries were eventually discovered to be permanent.  The duty to provide notice was triggered by the occurrence of the injury, although the full extent of an injury or loss may not be known.

The Appellate Division found that the trial court correctly applied these principles in determining that the injury to Lakeside was first sustained when the Township declared on December 29, 2016 that the original pipeline installed was unauthorized and thus unusable.  The fact that Lakewood incurred additional expenses in January 2017 when it had to install the duplicate pipeline did not alter the December 29 accrual date.  The January 2017 construction expenses only increased the extent of Lakeside’s damages.

The Appellate Division also rejected Lakeside’s contention that there was a continuing tort as a basis to defer the accrual date.  The Court found that there was no tolling.  The fact that the governmental defendants did not correct the problem does not render the tort continuing.

Further, the Court found that although Lakeside missed the 90 day notice deadline by only 2 days, strict enforcement of the Tort Claims Act was required.  The Court recognized that there are strong public policies underlying the notice provisions of the Tort Claims Act.

Hence, the Appellate Division found that Lakeside had not presented a sufficient legal justification to set aside the trial court’s ruling.  Accordingly, the Appellate Division affirmed the dismissal of the lawsuit based upon Lakeside’s failure to timely file the Notice of Tort Claim within the 90 day deadline as set forth in the Tort Claims Act.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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Immunities Available to Public Entities for Personal Injuries Caused by Snow or Ice

Public entities enjoy immunities not available to private individuals or businesses with respect to injuries caused by accidents due to snow or ice. The two main immunities would be the weather immunity found in the Tort Claims Act, N.J.S.A. 59:4-7, and the common law snow removal activities immunity. Additionally, in the recent case of Ferranti v. City of Elizabeth, 2019 N.J. Super. Unpub. LEXIS 1172 (App. Div. May 22, 2019), the Appellate Division applied the allocation of resources defense, N.J.S.A. 59:2-3(d), to the plaintiff’s claim against the County of Union for a fall that occurred in the courthouse parking lot due to unshoveled snow.

The weather immunity defense is found in N.J.S.A. 59:4-7. It provides: “Neither a public entity nor a public employee is liable for an injury caused solely by the effect on the use of streets and highways of weather conditions.” Note that this defense is only applicable to injuries that occur on roadways and would not apply to an injury resulting from the use of a sidewalk or parking lot. However, plaintiffs may be able to avoid the application of this defense if they are able to show that there were factors other than simply snow or ice that caused the accident injuring the plaintiff, such as road construction or the condition of a bridge surface.

The common law snow removal activities immunity recognized by the New Jersey Supreme Court in Miehl v. Darpino, 53 N.J. 49 (1968) has been found to have survived the passage of the Tort Claims Act. It is an additional defense available to public entities for snow/ice related injuries. In Miehl, the plaintiff was injured as a result of how the City of Hammonton plowed the snow. The Supreme Court found that the municipality had governmental immunity available for this injury that occurred due its snow removal activities.

More recently, in the Ferranti case, the plaintiff, a judiciary employee, fell while leaving the courthouse, after the court had closed early due to a snow emergency. The County was responsible to clear the snow from its lot and followed a protocol in which the pedestrian areas closest to the entryways are manually cleared first, followed by sidewalks and walkways. The parking area and driveways remain unplowed until no vehicles remained. The plaintiff fell in the driveway, which had not yet been reached by the County workers.

The trial court judge found that the County’s snow removal procedures and priorities were not palpably unreasonable and were the product of discretionary decision making. The County was dismissed out by summary judgment.

The Appellate Division upheld that decision. The Court found that the County’s decision in its methodology of snow clearing was not “palpably unreasonable” under N.J.S.A. 59:4-2. Further, the Court found that the decision “to plow the driveway and parking lot only after shoveling snow from pedestrian areas is patently discretionary, a fixing of priorities circumscribed by a limited budget.” Hence, the Appellate Division held that the allocation of resources immunity defense in N.J.S.A 59:2-3(d) was applicable.

Pursuant to this provision, discretionary activities are immune as follows: “A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable.” In Ferranti, the Court stated that “[t]he [County’s] decision of where to plow first is clearly discretionary and not palpably unreasonable.” Thus, the County was found immune from liability as to the plaintiff’s injuries.  

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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School Board Found Not Liable for Injury that Occurred Due to Fall from Slope in Property

Plaintiff Patricia Eak stumbled while walking down a slope at Central Regional High School to watch her son play baseball on the junior varsity field. As a result, she fell and broke her ankle. In Eak v. Central Regional School District, 2019 N.J. Super. Unpub. LEXIS 685 (App. Div. March 26, 2019), the issue was whether the unimproved grassy slope of the field could constitute a dangerous condition under the Tort Claims Act.

Plaintiff arrived at the school, parked in an adjacent lot to the field, crossing the parking lot and a driveway. Next, she stepped over a curb, onto a grassy downward slope, and began walking toward the bleachers on the third-base side. As she walked down the slope, the plaintiff stumbled and broke her ankle.

The plaintiff filed suit against the school and the Board of Education for her injuries. At the trial court level, the defendants filed a motion for summary judgment, which was granted. This appeal ensued with the plaintiff claiming that it should have been a jury question whether the property was a “dangerous condition” under the Tort Claims Act. The Appellate Division agreed with the trial court and affirmed the order granting summary judgment.

The Court noted that the grassy area where plaintiff fell was an unimproved condition of the school’s property. As such, the immunity under N.J.S.A 59:4-8 would apply. Pursuant to that provision: “[n]either a public entity nor a public employee is liable for an injury caused by a condition of any unimproved public property….” Under Troth v. State, 117 N.J. 258, 269-70 (1989), the New Jersey Supreme Court held that public property is improved “when there has been substantial physical modification of the property from its natural state, and when the physical change creates hazards that did not previously exist and that require management by the public entity”.

While the playing fields and some of the surrounding areas had been improved through the addition of steps and walkways to the fields, the Court found that no similar changes to the grounds between the parking lot and the junior varsity field had been made. Making improvements elsewhere did not transform the unimproved area into an improved area.

Plaintiff was injured on a slope which was a natural part of the school’s landscape. Hence, the Appellate Division found that no liability attached to the defendants for this unimproved portion of its property.

The plaintiff also argued that the slope constituted a dangerous condition under N.J.S.A. 59:4-2.  To establish liability via this provision, the plaintiff must show that a public employee either created the dangerous condition or had actual or constructive notice of the condition in time to have taken measures to protect against the dangerous condition. Further, the plaintiff must show that any steps taken by the public entity to protect against the dangerous condition were palpably unreasonable.

While the plaintiff did provide an expert report, the expert did not opine that the condition of the property was dangerous, only that it could have been made safer. Further, while the expert made reference to standards for accessible design enacted pursuant to the ADA, claiming that the degree of incline was improper, the Court noted that the plaintiff did not claim to be disabled and the expert did not assert that the degree of the incline was dangerous.

The Appellate Division pointed out that it was being asked to consider unimproved, not improved property, and the “open and obvious” gentle slope leading to this ballfield was not dangerous. Even if there was some notice to the school district of the alleged dangerous propensity, “it cannot be said that defendants’ failure to do anything to change the contour of the property or install steps or railings was palpably unreasonable.”

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Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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