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.

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