Court Dismisses Pothole Case against County

Plaintiff Luz Cruz (“Cruz”) tripped and fell in a pothole when crossing River Avenue in Camden, New Jersey. She broke her fifth metatarsal of her left foot and sued the County of Camden for her injuries. In Cruz v. Camden County, 2019 N.J. Super. Unpub. LEXIS 385 (App. Div. Feb. 19, 2019), one of the issues was whether the County had prior notice of the pothole.

Cruz and her friend drove a U-Haul truck to pick up a couch in an apartment on River Avenue, a County owned road. They parked the truck across the street from the apartment. They did not see a pothole while walking to the apartment. As they were carrying the couch to the truck, Cruz stepped into the pothole in the middle of the road and fell. About two months after the accident, plaintiff’s expert measured the pothole as about 18 inches in length, 6 inches wide, and 3 inches deep.

The County had no prior notice of this pothole’s existence. The County’s Department of Public Works (“DPW”) employees are tasked with looking for potholes and repair them upon their discovery. In addition, the County has a dedicated phone line and email address for complaints as to potholes or other road problems. Also, police, fire, and public safety personnel will report road problems. However, no complaints had been called in as to this particular pothole or on this block of River Avenue in the 10 years before the accident.

As for constructive notice, plaintiff was unable to establish how long the pothole had been present. Cruz had been there the year before at the same address and did not notice the pothole. Plaintiff retained an expert who did not determine or estimate when the pothole had formed.

The County filed a motion for summary judgment, arguing that the plaintiff had failed to show that the County had actual or constructive notice of the pothole, as required under the Tort Claims Act to prove a claim against a public entity for a dangerous condition. The trial court agreed and granted the motion, finding that the plaintiff was unable to prove any time frame for the pothole or that the pothole was “of such an obvious nature that the public entity, in exercise of due care, should have discovered the condition and its dangerous character.”

The plaintiff appealed to the Appellate Division, arguing that the County had actual or constructive notice of the pothole and failed to repair it and that the County’s failure to maintain a major County road was palpably unreasonable. The Appellate Division rejected these arguments and upheld the trial court’s decision.

The Appellate Division noted that public entity liability is restricted under the Tort Claims Act. For liability to attach for an injury caused by a dangerous condition, a plaintiff must establish that a public entity “had actual or constructive notice of the dangerous condition” in “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

The Court agreed with the trial court that there was no actual notice. The question was whether the plaintiff had proven that the County had constructive notice of the pothole. To prove constructive notice, the plaintiff must establish “that the condition existed for such time that the [County], in exercising due care, should have discovered the condition and its dangerous condition.” The Appellate Division found that was no evidence of how long the pothole existed before the accident. Hence, the plaintiff could not prove constructive notice either. Without such notice, the Court found that the plaintiff’s claim fails.

The Appellate Division also found that the County’s inaction in repairing River Avenue was not palpably unreasonable. The plaintiff failed to show that it was not palpably unreasonable for the County to fail to fix a pothole that was harmless for a vehicle to pass over to prevent a pedestrian to trip over in a portion of the road that was not a designated crosswalk.

This case is illustrative of the difficulty that plaintiffs face in pursuing pothole claims against public entities. Because potholes can pop up in a day, depending on weather conditions, unless the public entity has actual notice of the pothole, it can be very difficult for a plaintiff to prove constructive notice.


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.


Under Narrow Circumstances, NJ Supreme Court Permits Filing of Late Notice of Claim When Claimant Identifies Correct Public Entity in Notice of Claim but Serves Wrong Entity

This case involves two fatalities following a multi-vehicle accident. Both Timothy O’Donnell and his 5 year old daughter B.O. were killed. Pamela O’Donnell, Timothy’s widow, retained an attorney who prepared a Tort Claims Act notice and identified the correct public entity in the Tort Claims Act notice but then served it upon the wrong entity. As it turned out, a separate claimant involved in the same accident did file and serve a timely tort claims act notice upon the correct entity. The New Jersey Supreme Court was asked to decide whether these circumstances constituted extraordinary circumstances so as to permit the filing of a late notice of claim.

Timothy O’Donnell was driving westbound on the New Jersey Turnpike with his daughter B.O. in the back seat. As they approached a tollbooth at Interchange 14C, Timothy’s vehicle was rear-ended by a vehicle travelling at a high rate of speed, propelling his vehicle onto the opposite side of the Turnpike and into oncoming traffic. Timothy was struck head on by an ambulance driven by Eliasar Morales, who was injured in the accident. Both Timothy and his daughter were killed.

Timothy’s widow, Pamela O’Donnell, hired counsel who served a notice of tort claim upon the Bureau of Risk Management of the State of New Jersey. The notice identified the New Jersey Turnpike Authority (“NJTA”) as a responsible party and alleged that its actions caused the deaths of Timothy and their daughter. The notice claimed that Timothy’s vehicle would not have been propelled to the other side if the Turnpike had installed safety barriers to separate opposing lanes of traffic. That notice was timely served upon the State but not the NJTA.

Thereafter, O’Donnell’s widow obtained new counsel, who served an amended notice of claim on the NJTA 197 days after the accident. Two days later, she filed suit against the NJTA. The NJTA filed a motion to dismiss the claim based upon the failure to timely file a notice of claim in 90 days, as required pursuant to N.J.S.A. 59:8-8. O’Donnell opposed the motion and filed a cross-motion seeking permission to file a late notice of tort claim, alleging that the NJTA would not suffer substantial prejudice and extraordinary circumstances justified the untimely filing. (N.J.S.A. 59:8-9 permits, upon the discretion of the trial judge, a notice of claim to be filed within one year after the accrual of the claim, if the public entity “has not been substantially prejudiced” and if the claimant can show upon affidavit “sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim” within the 90 day time period.)

The trial judge found that O’Donnell had demonstrated extraordinary circumstances and allowed her to file a late notice of claim. This decision was appealed to the Appellate Division, which reversed. It found that the attorney’s failure to serve the proper entity did not constitute extraordinary circumstances and the State had no obligation to forward the wrongly filed notice to the NJTA.

O’Donnell filed a petition for certification, which the Supreme Court granted. It also permitted O’Donnell to expand the record to include the Morale’s notice of tort claim, which had been timely served upon the NJTA. Morale’s notice provided the details of the accident, as well as the allegation that the NJTA failed to install roadway safety barriers. It also attached the police report as to the incident.

The Supreme Court found that, in considering the totality of circumstances, that O’Donnell had demonstrated extraordinary circumstances. The Court noted that O’Donnell did not sit on her rights. She did retain counsel who, within the 90 day time period, prepared a proper notice of tort claim. The notice listed the NJTA as the responsible party and alleged that it was NJTA’s failure to install safety barriers to prevent vehicles from crossing into oncoming traffic that caused the deaths of her husband and daughter.

Further, the Court noted that the NJTA did receive a timely notice of claim from Morales, which notice of claim was nearly identical. It provided all of the details of the accident and the same theory of liability. His notice attached the police report, which explicitly listed Timothy and B.O. and indicated they died in the accident.

The Supreme Court analyzed the two tort claims notices together, in combination with the circumstances surrounding this terrible accident, and found that the NJTA was notified of its potential liability within the 90 days of the accident. Utilizing the Morales’ notice, the NJTA was able “to investigate potential claims from the accident, prepare a defense, and formulate a plan to remedy promptly any Turnpike defect.” The Court found that when O’Donnell finally served her amended notice of claim, the NJTA was already aware of its potential liability and was not prejudiced by the untimely filing.

It seemed clear that the Supreme Court was limiting its holding to the “unique facts” presented in this case: that O’Donnell quickly pursued her claims against the NJTA, identifying the NJTA as the correct responsible party but improperly serving the State as opposed to the NJTA; that another claimant from the same accident, Morales, served a timely notice of claim on the NJTA, describing the exact circumstances of the accident and the same theory of liability against the NJTA; and that O’Donnell filed for leave within one year following the accident to file a late notice of claim.

The Supreme Court refers to this matter as a “rare” case, in which the claimant had presented adequate proofs indicating that the totality of facts and circumstances are extraordinary and, hence, the Court found it “consistent with the Tort Claims Act, its legislative history, our precedent, and the interests of justice to allow the claimant to pursue his or her claims against the public entity.” Thus, the Supreme Court reversed the Appellate Davison’s decision and reinstated the O’Donnell’s complaint.

This case can be found at O’Donnell v. New Jersey Turnpike Authority, 2019 N.J. LEXIS 42 (Jan. 14, 2019). Its holding will be of limited application. This was a narrow holding and cannot be construed to carte blanche excuse a plaintiff who names the correct public entity in a tort claims act notice, but serves the wrong entity. It seems that the tipping factor for the Court was that another claimant in the same accident had timely filed a Tort Claims Act notice, giving the NJTA notice of the O’Donnell fatalities. Hence, there was no prejudice to the NJTA in permitting the late notice to be filed.


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.


Municipality Held Not Liable for Fall over Bench at its Baseball Field

The plaintiff Anthony Victor filed suit against the Borough of Red Bank and its Board of Education after he tripped over the dugout bench that had been moved behind the bleachers of the municipality’s baseball field. The plaintiff had been at the Red Bank Count Basie Field to watch his grandson’s baseball game. The issue in Victor v. Borough of Red Bank, A-1393-17T2 (App. Div. Sept. 27, 2018) was whether the placement of the bench behind the bleachers constituted a dangerous condition of public property so as to impose liability on the defendants.

The bench had been moved between fields to provide players a place to sit during games and practices. The bench was about 21 feet long and was held up by 4 vertical supports which ended in a perpendicular metal bar 2 inches in diameter. Each of the bars extended 15 inches beyond the back of the bench. The bench had been placed behind some metal bleachers on a concrete pad next to one of the fields. While it was not placed in an actual walkway, the defendants did concede that some spectators cut across the pad to reach the batting cages.

The plaintiff was walking behind the bleachers across the pad to reach the batting cages and another field when his right foot tripped on the last support. He did not see the bench’s metal supports as he walked because he was not looking down.

The defendants filed for a summary judgment, contending that the plaintiff did not demonstrate that the property was in a dangerous condition and the placement of the bench was not palpably reasonable. The trial judge concluded that the bench was not a dangerous condition to those who made proper observations and granted the motion to dismiss the case.

Pursuant to the Tort Claims Act, N.J.S.A. 59:4-2, for a public entity to be held liable for a dangerous condition of its property, the plaintiff must establish that the property “was in a 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.” Further, the plaintiff must prove that the dangerous condition was created by an employee of the public entity or that the public entity had actual or constructive notice of the dangerous condition.

Even if a plaintiff is able to prove that there existed a dangerous condition of public property that caused the injury, the statute further provides that no liability would be imposed “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.”

The defendants did not dispute that the plaintiff was injured by tripping over the bench. However, they focused on whether the concrete pad, where spectators were known to walk, was in a dangerous condition and, if so, whether the failure to correct it was palpably reasonable. The Appellate Division noted that the statute defined “dangerous condition” as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”        

The Court found that the trial court was correct that the plaintiff failed to establish that the Borough’s placement of the bench behind the bleachers rendered the concrete pad in a dangerous condition to a person who foreseeably would walk behind the bleachers to access the batting cages or one of the other fields. Plaintiff had admitted that there was nothing obscuring his view of either the bench or the bleachers. He tripped over one of the bench supports after walking almost the entire length of the bench.            

Because it found that the plaintiff did not use “due care” in the foreseeable use of the property, the Appellate Division agreed that the property was not in a dangerous condition. Further, it found that the plaintiff had presented no proof that the placement of the bench or the failure to move it was “palpably unreasonable,” which term is defined as “manifest and obvious that no prudent person would approve of its course of action or inaction.” The Court also noted that if this case had been brought against a private owner without statutory immunities, the obvious nature of the bench and its supports would make it difficult for the plaintiff to recover against an owner. Hence, the Appellate Division affirmed the trial court decision, dismissing the case against the defendants.


Attorney’s Fee Award Denied By Federal Court on Basis of Being Outrageously Excessive

Plaintiff Bernie Clemens was awarded $100,000 in punitive damages under the Pennsylvania Bad Faith Statute in a federal jury trial. He then submitted a petition to the District Court judge for over $900,000 in attorney’s fees from the defendant New York Central Mutual Fire Insurance Company. The District Court denied the petition in its entirety on the basis that it was not adequately supported and that the requested amount was grossly excessive. In the published decision of Clemens v. New York Central Mutual Fire Insurance Company, 2018 U.S. App. LEXIS 25803 (3rd Cir. 2018), the United States Court of Appeals for the Third Circuit upheld the denial of attorney’s fees.

Plaintiff Clemens had been dissatisfied with the defendant insurance company’s handling of his insurance claim related to a serious car accident and filed suit against the company in state court in Pennsylvania, asserting a contractual UIM claim and a claim under Pennsylvania’s Bad Faith Statute. The case was removed to federal court and the parties settled the UIM claim for $25,000. The bad faith claim, however, proceeded to a weeklong trial, at the conclusion of which, the jury found that the insurance company had acted in bad faith and awarded Clemens $100,000 in punitive damages.

As the prevailing party under the Bad Faith Statute, the plaintiff then submitted a petition for attorney’s fees in which he requested an award of $946,526 in fees and costs. The District Court denied the request in its entirety in a “thorough and well-reasoned 100 page opinion.” The court found that 87% of the hours billed had to be disallowed as vague, duplicative, unnecessary, or inadequately supported by documentary evidence. Hence, the District Court found that the fee request was “outrageously excessive” and exercised its discretion to award no fee whatsoever.

The Third Circuit noted that the Pennsylvania Bad Faith Statute used the word “may” with respect to the award of attorney’s fees and costs. Thus, the Court found that it was within the judge’s discretion whether or not to award attorneys fees. The Third Circuit held that the fee request must be reasonable. It would not disturb the District Court judge’s decision absent an abuse of discretion. The Court stated that “[a]lthough it was unusual, we cannot say that this decision was an abuse of discretion.”

The Third Circuit enumerated the many problems with the fee application. To start, counsel did not maintain contemporaneous time records for most of the litigation and they had to be recreated. The responsibility of reconstructing the time records was left to a single attorney, who not only had to estimate retrospectively the length of time she spent on each individual task, but also had to estimate the amount of time that her colleagues spent on task because they had left the firm by the time the fee petition was filed.  While contemporaneous records are not required, the Court noted that it was the “preferred practice.”

Further, the time entries submitted were so vague that there is no way to discern whether the hours billed were reasonable. Some entries were, on their face, unnecessary or excessive. In particular, the Third Circuit noted that counsel billed a “staggering” 562 hours for “trial prep” or “trial preparation” with no further description of the nature of the work performed. The Court agreed with the District Court that this amount was an outrageous number under the circumstances. That would mean that if counsel did nothing else for eight hours a day, every day, counsel would have spent approximately 70 days doing nothing but preparing for a trial, which consisted of only four days of substantive testimony with a total of five witnesses for both sides.

And, even more troubling was the fact that the counsel’s hard work did not appear to pay off at trial. The District Court had to repeatedly admonish counsel for being unprepared because he was so obviously unfamiliar with the Rules of Evidence, Rules of Procedure and rulings of the court. Hence, the Third Circuit agreed that the District Court did not abuse its discretion in disallowing all of the 562 hours for this trial preparation.

Also, the Court pointed out that counsel neglected their burden of showing that the requested hourly rates were reasonable in light of the prevailing rate in the community or similar services by lawyers of reasonably comparable skill, experience, and reputation. Four of the five billing lawyers, including lead counsel, provided no information whatsoever on which the District Court could make a determination whether the requested hourly rate was reasonable. For all of these reasons, the District Court concluded, based upon the disallowance, as well as other reductions, that counsel was entitled to only 13% of the fees they requested. Accordingly, the District Court found that the request was “outrageously excessive” and exercised its discretion to award no fee at all.

The Third Circuit stated that while it had never had the opportunity to formally endorse such an approach, other circuits have held that district courts may exercise discretion to deny a fee request in its entirety when the requested amount is outrageously excessive under the circumstances. The rationale is that unless the court has this kind of discretion, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such conduct would be a reduction of their fee to what they should have asked for in the first place. The Third Circuit agreed with this rationale. It stated that is the duty of the requesting party to make a good-faith effort to exclude “ hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.”

The Third Circuit found that the District Court provided a thorough explanation of how counsel failed to fulfill their duty to the court. That failure, along with the other deficiencies in the fee petition and counsel’s substandard performance, justified the District Court’s decision to deny the fee request in its entirety. The Third Circuit found that this decision was not an abuse of discretion and, thus, affirmed the order of the District Court denying the plaintiff’s fee award.


DOT Found Not Liable for Plaintiff’s Injuries When Plaintiff Struck by Car as Crossing Highway to Reach DOT Unimproved Parking Lot Across From American Legion

Plaintiff Daniel Mattos and his wife, Cary Mattos, parked their car on the DOT property to attend a St. Patrick’s Day event held at the American Legion, which was located across Route 206 in Frankford Township. Cary was struck and killed by a car driven by defendant Thomas Zoschak as she attempted to cross Route 206 to return to her parked car. The issue in Mattos v. Hotalen, 2018 N.J. Super. Unpub. LEXIS 1968 (App. Div. Aug. 22, 2018), was whether the DOT could be responsible for permitting the American Legion to use its unimproved lot as an overflow parking lot without providing warning signs, crossing guards, safety lighting, or patrol officers to assist in pedestrian crossing of Route 206 or require the American Legion to provide the safety measures.

The DOT moved for summary judgment before the trial court, arguing that it was immune from liability based upon the provision of N.J.S.A. 59:2-4 of the Tort Claims Act, which provides that “a public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law.” Further, the DOT argued that it was not legally obligated to prevent the unauthorized use of its public property.

The trial court judge found that there were several issues of material facts related to whether the proximity of Route 206 to the DOT’s property constituted a dangerous condition, whether the DOT had notice of the dangerous condition, and whether it failed to remediate the dangerous condition. The DOT filed an interlocutory appeal, arguing that the motion judge failed to dismiss the plaintiffs’ claims based upon the immunity granted to public entities concerning the adoption or failure to adopt or enforce a law. In the alternative, the DOT argued that even if N.J.S.A. 59:4-2 applied (liability for dangerous condition of public property), the plaintiffs did not present sufficient evidence that the property was in a dangerous condition.

The Appellate Division noted that the plaintiffs had parked their car on an unpaved, grassy parcel of land that is part of the DOT’s property, located across from the American Legion. Route 206 is a 50 mile an hour road with no pedestrian crossing to allow those who park their car on the DOT’s property to cross Route 206 safely. Further, it found that the DOT maintained Route 206.

This accident happened at about 10:30 pm when the plaintiffs were attempting to cross Route 206 and were struck by a car by the defendant Zoschak. Plaintiff Cary Mattos sustained fatal head injuries and died at the scene.

The DOT property was an unpaved, grassy lot without any designated means of egress and ingress for vehicular or pedestrian traffic. There were no barriers or fences blocking access to the property and on the side of the property adjacent to Main Street, there was a worn down patch that had been used as an unauthorized entrance and exit onto the property. During depositions, the DOT investigator explained that it was illegal for persons attending events held at the American Legion to use the property as a parking lot. However, the DOT did not have any “no trespassing” signs on the property at the time of the accident.

Plaintiff’s theory of liability was based upon the DOT’s failure to take affirmative measures to prevent people from improperly using its lot as a de facto parking area for events held at the American Legion. Stated differently, the plaintiff was arguing that the DOT should be liable for the plaintiffs’ misuse of public property. If the cause of action against the DOT was proximately caused by a dangerous condition located on the property, the Appellate Division held that it would have a “modicum of substantive merit.” However, the plaintiffs decided to cross Route 206 at about 10:30 pm, wearing dark clothing, in an area of the road where the overhead lighting provided intermittent illumination. Hence, the Court rejected the plaintiffs’ arguments attempting to impose an affirmative responsibility on the DOT to facilitate the misuse of its property.

Further, the Appellate Division found that the DOT did have immunity under N.J.S.A. 59:2-4, which provided immunity for any injury caused by adopting or failing to adopt a law or failing to enforce any law. Accordingly, the Appellate Division reversed the trial judge’s denial of the DOT’s motion for summary judgment and found that the complaint should have been dismissed by the Law Division.


Parking Authority’s Operation of a Fee Based Jitney Service Did not Deprive it from Asserting Public Entity Snow Removal Immunity

Plaintiff Mildred Molino was walking in the Township of South Orange when she fell on an icy sidewalk adjacent to a municipal parking lot. The lot was owned by the Township and operated by the South Orange Parking Authority (“SOPA”). The issue in Molino v. Township of South Orange, 2018 N.J. Super. Unpub. LEXIS 1665 (App. Div. July 12, 2018) was whether SOPA was barred from asserting the common law snow and ice removal immunity because it charged for its jitney service.

It was undisputed that it had snowed the day before the plaintiff’s accident. Township employees had plowed, shoveled, and salted the parking lots and sidewalks, including the municipal lot owned by the Township and operated by SOPA. The plaintiff alleged that the Township and SOPA failed to properly remove ice and snow, causing plaintiff’s injury.

Both the Township and SOPA filed motions for summary judgment, each asserting a common law public entity snow and ice removal immunity. Plaintiff argued that SOPA’s  operation of a fee based jitney service for residents to the train station rendered it a commercial entity, not entitled to public entity immunity.

Although the trial court judge initially denied SOPA’s motion, upon reconsideration, the trial judge found that SOPA was acting as a public entity and, regardless of whether it ran a jitney service, it did not lose its public entity immunities. Having surplus funds did not convert SOPA into a commercial enterprise.

The Appellate Division agreed. Charging a fee for its jitney service did not render SOPA a commercial enterprise. The Court found that collecting parking fees and operating a jitney service did not deprive SOA of its common law snow and ice removal immunity. It was operating within the bounds as a public entity and used the revenue raised through its parking fees and jitney service to defray the cost of its regulation. As a result, SOPA would be immune from liability for the injuries plaintiff suffered when she slipped on ice.


Can a Plaintiff Recover for Injuries Due to a Fall in a Pothole on a Public Roadway?

Potholes are a fact of life in New Jersey. They can pop up almost overnight, which makes it difficult for a plaintiff to be able to pursue a claim for a personal injury against a public entity due to an injury suffered from stepping in a pothole. Typically, a plaintiff is unable to show that the public entity had actual or constructive notice, as required under the Tort Claims Act to pursue such a claim.

Postorino v. County of Passaic, 2016 N.J. Super. Unpub. LEXIS 1729 (App. Div. July 25, 2016) is a good example of a pothole case in which notice was an issue for a pedestrian fall due to a pothole. The plaintiff Michael Postorino, Fire Chief for the City of Paterson, was leaving the scene of a fire and stepped into a pothole covered with water on Grand Street. He suffered a left knee injury and filed suit against the County of Passaic, who was responsible for the maintenance of the street.

To be able to successfully pursue a personal injury claim against the County, pursuant to the Tort Claims Act, N.J.S.A. 59:4-2, the plaintiff had to prove that the pothole constituted a dangerous condition and that the County had actual or constructive notice of the condition prior to his accident. Constructive notice would exist if the plaintiff could show “that the condition 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).

There were no facts to establish that the County had actual notice of the pothole. The trial court found that there was no actual or constructive notice of the pothole and granted summary judgment to the County. The issue on appeal was whether the County had constructive notice of the pothole. The Appellate Division pointed out that constructive notice can be proven based upon the length of time a dangerous condition existed and its appearance. Further, if there were prior accidents at the same location of the dangerous condition, that could establish constructive notice.

In Postorino, there were no proofs to show how long the pothole had existed before the accident. According to the County, Buildings and Roads employees travelled in the approximate vicinity of the accident location on a weekly basis and would have reported such a pothole or had it filled had it been noticed. Other potholes on Grand Street had been identified the day before by a county inspector to be filled in. However, no specific potholes were identified and, regardless, that would not have allowed sufficient time to fill it in before the accident.

There was no record of prior accidents involving this accident or other potholes in the same area, which could have provided notice to the County. The plaintiff presented no expert testimony to opine on the duration of the pothole prior to the accident. Thus, because the plaintiff was unable to establish notice of the pothole, the Appellate Division affirmed the order, granting summary judgment to the defendant County.


Township Found Not Liable for Injury Caused by Fall in Pothole

Plaintiff Anthony Scafidi (“Scafidi”) was injured due to a fall in a pothole in the road alongside the sidewalk on Stuyvesant Avenue in Lyndhurst, New Jersey. He sued the Township, claiming that the pothole constituted a dangerous condition of public property. In Scafidi v. Township of Lyndhurst, 2018 N.J. Super. Unpub. LEXIS 925 (App. Div. April 20, 2018), the plaintiff argued that he had met the requirements of the Tort Claims Act to be able to recover for his injuries against the Township.

Scafidi had been visiting a friend who lived on Stuyvesant Avenue and was walking home when the accident occurred. He accidentally dropped his house keys in the street. When he stepped off the sidewalk to retrieve his keys, his left foot stepped into a pothole, causing him to fall. He suffered a fracture, necessitating surgery to his foot.

One year after the accident, he retained an expert, who inspected and measured the pothole at 4 ¼ inches deep. The expert did not record the length or width of the pothole. He opined that the pothole had formed over a period of years, specifically within a 3 to 5 year duration.

The Township filed for a summary judgment, asserting that it was entitled to immunity under the Tort Claims Act. It argued that the plaintiff failed to prove that the pothole was a dangerous condition, that the Township had actual or constructive notice of the condition, that the Township’s actions as to the pothole were palpably unreasonable, or that plaintiff suffered a permanent injury. The judge granted the motion and the plaintiff appealed. On appeal, the plaintiff argued that there were issues of fact which should have precluded the motion from being granted.

The Appellate Division noted that potholes and depressions are common features of roadways. Not every defect in a highway is actionable. The Court found that the Township’s inaction in repairing the pothole was not palpably unreasonable. Had the plaintiff not dropped his keys, he would not have stepped into this portion of the roadway. This area was not one designated as a pedestrian crosswalk and a car would have driven over the pothole without incident. Hence, the Court agreed that the Township’s failure to repair this pothole was not palpably unreasonable. Thus, the Appellate Division affirmed the trial court’s dismissal of this lawsuit.


Failure to Timely Serve Tort Claims Act Notice Upon Defendant Bars Claim

Plaintiff alleges that she was injured when she fell into an uncovered trench drain at Snyder High School, operated by the Jersey City Board of Education. The day after the accident she delivered a note to the school advising of the accident. In Hernandez v. Snyder High School, 2018 N.J. Super. Unpub. LEXIS 155 (App. Div. Jan. 24, 2018), plaintiff contended that her note should constitute substantial compliance with her obligation to file a notice of tort claim.

Plaintiff’s note described the accident and provided the date and her telephone number. However, it did not include her home address, the nature and extent of her injury, her loss or damages, or her intent to file a claim against the defendant school and school board.

The accident occurred on November 20, 2014. After the plaintiff retained counsel, her attorney sent tort claim notices on December 12, 2014 but the notices were sent to City Hall for Jersey City. No notice was sent to the Board of Education office, which was at a separate location.

The Board of Education filed for summary judgment on the basis that it was not timely served with a tort claim notice. Plaintiff contended that the handwritten note substantially complied with the notice requirement. Further, Plaintiff argued that in the Yellow Pages, the City Hall address is listed as one of the addresses for the Board of Education.

The trial court rejected both of these arguments. The trial court judge found that the Board and the City were separate public entities and service upon the City was not effective service on the Board. The court also found that the doctrine of substantial compliance was inapplicable. Plaintiff’s note did not express her intent to pursue a claim and failed to include other information required by N.J.S.A. 59:8-4, such as her address and her injuries. Thus, the trial court granted the Board summary judgment.

On appeal, the Appellate Division affirmed. It noted the strict requirement of the Tort Claims Act to file a timely notice. The Court stated: “We have repeatedly made clear that, after the ninety-day deadline has passed and a plaintiff has not utilized the procedure under N.J.S.A. 59:8-9 to obtain an extension of that period up to one year, courts lack jurisdiction to entertain tort claims if the required notices were not timely filed.”

Although the plaintiff contended the Board should be estopped from making this argument because if failed to raise it within one year of the accident – which would have permitted plaintiff to seek leave to file a late notice – the Court found that, even if the plaintiff had sought leave, it would have been denied. The Plaintiff’s explanation for serving the Board at the City Hall address was not a sufficient excuse when the Board’s correct address was readily available.

Further, the Appellate Division agreed that the plaintiff’s handwritten note did not substantially comply with Tort Claim’s Act notice requirement. The notice that was filed was missing some of the required information and was more akin to an accident report than a notice of tort claim. Although the plaintiff argued she should be entitled to additional discovery, the Court also rejected that argument. No amount of additional discovery would change the fact that plaintiff failed to serve the Board with the notice of claim.

Township Has no Liability for Drowning Death of Minor in Unimproved River

The plaintiff, Carol Leonard, on behalf of the Estate of her deceased son, Devine Nichols, sued the City of New Brunswick due to the accidental drowning death of her son in the Raritan River. Devine and his friend had been seen walking in the Raritan River in Boyd Park. The next day, the bodies of Devine and his friend were found in the river. In Leonard v. City of New Brunswick, 2017 N.J. Super. Unpub. LEXIS 2837 (App. Div. Nov. 14, 2017), plaintiff sought to hold the City liable based upon its ownership and operation of Boyd Park.

Eleven year old Devine was last seen at Boyd Park, walking in the middle of the Raritan River, during low tide. However, according to a witness who saw Devine and his friend, about 5 minutes later, it started to rain heavily.

The plaintiff, Carol Leonard (“Leonard”), sued the City, along with the County of Middlesex and the State, on the basis that the park created a dangerous condition in not restricting access to the river. Also, the plaintiff’s expert faulted the City for “failing to post warning signs concerning the dangers created by ‘tidal changes and resulting strong currents.’”

However, the City contended that it should be immune from liability under the Tort Claims Act pursuant to N.J.S.A. 59:4-8, which provides immunity to public entities from injuries caused by conditions on their unimproved public properties. While the plaintiff claimed that this defense would not apply because Boyd Park was an improved property, the City countered by arguing that it is immune from liability because Devine drowned in the Raritan River, which is unimproved.

Additionally, N.J.S.A. 59:4-9 provides immunity for injuries caused by the condition of unimproved portions of “submerged lands” and the “beds of navigable rivers.” The City argued that this defense was another basis upon which it should be immune.

The Appellate Division agreed with the City that the relevant property was not the park but, rather, was the river. The Court held that the Raritan River caused Devine’s death, which made it the relevant property for the Tort Claims Act analysis as to applicable defenses.

The plaintiff failed to show that the Raritan River was an improved property. The fact that Boyd Park has improved lands in part did not make the river an improved part of the property. Thus, the Appellate Division found it to be within the scope of the defense in N.J.S.A. 59:4-8. Additionally, the Court also held that the City was insulated from liability for a dangerous condition within “submerged lands,” as set forth in N.J.S.A. 59:4-9.

Hence, the Appellate Division upheld the trial court’s dismissal of this matter, finding that these Tort Claims Act defenses immunized the City of New Brunswick from tort liability for this accident.

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