Plaintiff Nelly Reis a/k/a Nelly Gonclaves and her husband filed a lawsuit against the City of Newark for her personal injuries. She alleged that she tripped and fell in a pothole, a couple of feet outside of a crosswalk, while she was crossing an intersection in the City of Newark. The issue in Reis v. City of Newark, 2024 N.J. Super. Unpub. LEXIS 3053 (App. Div. Dec. 17, 2024) was whether plaintiff was able to establish that Newark had constructive notice of the pothole and, hence, could be liable for the injuries she suffered due to her fall.
On the date of the accident, Nelly parked her car and walked to her office located on Rome Street. She parked on the corner of Rome Street and Niagara Street because she could not park on Niagara Street due to street cleaning. While walking to work, she crossed the intersection of Rome and Niagara outside of the crosswalk. She tripped and fell in a pothole that was a couple feet outside of the crosswalk and about 100 feet from her office. As a result of her fall, she suffered injuries.
She testified in her deposition that while she was familiar with the neighborhood, she did not recall seeing the pothole on Rome Street before she fell. Nelly filed a tort claim notice against the City of Newark and subsequently filed this lawsuit. She claimed that the large pothole in the roadway created a dangerous condition.
After discovery concluded, Newark filed a motion for summary judgment. It argued that it lacked actual notice of the pothole before the accident and only became aware of the pothole after it received Nelly’s tort claim notice. After receiving notice, the City sent a crew to repair it.
Plaintiff, in opposition to the motion, submitted her own deposition testimony and Affidavits from three coworkers who stated that they were familiar with this pothole and it had existed for a long period of time, many months, prior to her accident. She also submitted Google Earth images of this intersection which showed the pothole existing before the accident.
Nevertheless, the motion judge granted Newark’s motion for summary judgment. Plaintiff appealed the decision, arguing that Newark had constructive notice of the pothole and that her complaint should not have been dismissed.
This personal injury claim is governed by the Tort Claims Act, under which plaintiff must prove that the property was in a dangerous condition at the time of the accident, that it proximately caused the injury, the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that either a negligent or wrongful act or omission of the public employee created or knew about the dangerous condition or that it had actual or constructive notice of the dangerous condition. (N.J.S.A. 59:4-2) Hence, the critical inquiry in this case was whether Newark had constructive notice of the dangerous condition of the pothole.
The plaintiff argued that there were genuine material facts in dispute and that she should be entitled to present her case to a jury. The Appellate Division noted that under the Tort Claims Act, a public entity is liable for potholes or depression in the roadway “only when the public entity is on actual or constructive notice of a dangerous condition; and the public entity’s failure to protect against the roadway defect is palpably unreasonable.” A public entity is only deemed to have constructive notice of the dangerous condition when the plaintiff is able to establish “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.”
Plaintiff argued that she did provide evidence sufficient to prove the existence of the pothole before the accident. However, the Appellate Division found that there was no evidence in the record that Newark had any notice of the pothole at the time of her fall. Further, it found that the evidence she submitted fell “short of the competent evidence necessary to show Newark had constructive notice of the pothole.”
The Court noted that simply the admission of Google Earth photographs was not sufficient. Plaintiff failed to offer any testimony as to whether the images were satellite or real images or when the images were captured and if any of the images were altered.
Thus, the Appellate Division agreed with the trial court decision. It found no reason to reverse the judge’s conclusion because plaintiff had failed to meet her burden and establish that Newark had or should have had constructive notice of the pothole on Rome Street. Thus, the summary judgment decision was affirmed.
