Court Finds City Not Liable For Plaintiff’s Injury Suffered From Stepping Into Pothole

Plaintiff Giani Petty broke her ankle when she stepped into a pothole on a residential street in Newark.  The plaintiff sued the City of Newark for her injuries suffered as a result of the fall. The issue in Petty v. City of Newark, 2021 N.J. Super. Unpub. LEXIS 3122 (App. Div. Dec. 20, 2021) was whether the City was immune under the allocation of resources defense found in the Tort Claims Act.

In defending the case, the City relied upon the immunity found in N.J.S.A. 59:2-3(d) “which affords discretion to municipalities to allocate limited resources – in this instance, the resources available to identify and repair potholes.”  The trial court found that this immunity did apply and further it found that the plaintiff “did not demonstrate that the City’s failure to repair the pothole she stepped in was palpably unreasonable.”

The Appellate Division agreed with the trial court that “the City’s decision to repair potholes within limits of its budgetary allocation for street maintenance was not palpably unreasonable.”  The City was able to present evidence that the Mayor and council approved an annual budget that allocated resources for street maintenance.  Additionally, the discovery included the deposition of the Supervisor of street repairs who explained the process by which the City identified potholes and prioritized repair efforts using available resources.  The City’s asphalt crew and Supervisor exercised their discretion by submitting daily pothole repair reports that detailed their plan each day to identify and fix potholes.

The Appellate Division noted that the Tort Claims Act provides immunity to a public entity which “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.”

Here, the Court noted that the City did exercise its discretion in choosing which potholes to fix on a given day from “the large universe of potholes” that form on its streets.  The Appellate Division noted that there was nothing in the record which supported the plaintiff’s argument that the City’s exercise of discretion was palpably unreasonable for failing to fix this particular pothole that the plaintiff stepped in.

As an example, the record did not show that the City received complaints regarding that specific pothole.  The Appellate Division noted that the City’s efforts to “prioritize the remediation of potholes” was not perfect but it was not so “palpably unreasonable” as to defeat its entitlement to tort claims immunity under N.J.S.A. 59:2-3(d).   Thus, the Appellate Division agreed that the City enjoyed immunity under this statutory provision and affirmed the dismissal of the 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 30 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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