Plaintiff Ellen Cavilla tripped over a partially exposed pipe and broke her wrist while fishing in Gaskill Park in April 2015. She sued Atlantic County for negligence due to her injuries. The issue in Cavilla v. County of Atlantic, 2020 N.J. Super. Unpub. LEXIS 877 (App. Div. May 11, 2020), was whether a negligence claim could be maintained against the County under the New Jersey Tort Claims Act due to lack of notice of the pipe.
The defendant County claimed that it had no actual or constructive knowledge of the alleged dangerous condition, as required under the Act. Hence, it moved for summary judgment on the trial court level, which was granted.
To maintain a claim for personal injury under the Tort Claims Act, a plaintiff must demonstrate five elements. For a public entity to be liable for an injury caused by a condition of its property, the plaintiff must establish: “1) that the property was in a dangerous condition at the time of the injury; 2) that the injury was proximately caused by the dangerous condition; 3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; 4) that the public entity created the dangerous condition or had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition; and 5) that the public entity’s actions were palpably unreasonable.”
In this case, the issue was whether there was proof that the public entity had actual or constructive notice of the dangerous condition. To prove actual notice, the public entity must have actual knowledge of the existence of the condition and knew or should have known of its dangerous character. For a public entity to be deemed to have constructive knowledge of a dangerous condition, that occurs “only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”
Based upon the Appellate Division’s review of the record, the Court found that the plaintiff could not successfully establish a prima facie case of negligence because she had not presented evidence that the County had actual or constructive notice of the location or condition of the pipe. The plaintiff argued that the photographs of the pipe created a fact question as to the constructive notice issue. The Appellate Division disagreed with that argument. The Court noted that these photographs, viewed in the light most favorable to plaintiff, may establish that a dangerous condition existed, but they did not establish that the County had actual or constructive notice of that condition.
The plaintiff argued because the County was “actively” and “regularly” mowing the area, it must have been aware that the pipe was present. Neither the trial court, nor the Appellate Division found that argument to be persuasive.
The superintendent of Atlantic County Parks provided an Affidavit, indicating that he conducted a diligent search of the Park’s records and found no record of a visitor notifying the Park system of any dangerous condition regarding the pipe. According to the record, the first time the Park system was notified of this condition was when the County received plaintiff’s present claim.
The Court noted in a footnote that the photographs of the pipe were taken 9-18 months after the accident. They showed the pipe was at least partially obscured by soil and grass. While the plaintiff initially maintained that these photographs accurately depicted the condition of the accident scene on the date of her fall, she subsequently provided a second Affidavit in which she claims that the pipe was discernable. The Court noted that there was an “inherent tension” between her argument that the pipe was sufficiently concealed to constitute a dangerous condition and yet was of such an obvious nature as to put the County on actual or constructive notice of the condition.
The Appellate Division found that plaintiff failed to establish the notice element but also noted that the plaintiff failed to satisfy element number 5, in that she presented no evidence that the County had acted in a palpably unreasonable manner. There was no proof presented that the County was notified of any condition regarding the pipe until the plaintiff filed the complaint. Hence, the plaintiff had failed to present any evidence from which to conclude that the County acted in a palpably unreasonable manner.
Accordingly, even when viewing the plaintiff’s evidence in the light most favorable to her, the Appellate Division found that she had not established a prima facie case of negligence under the Tort Claims Act. Thus, the County was entitled to summary judgment. Accordingly, the Appellate Division affirmed the summary judgment in favor of the County, dismissing the 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.