Don’t Let Your Public Entity Client Get Tripped up by a Pothole

By: Jessica M. Anderson, Esq.

By way of background, a public entity is only liable for an injury proximately caused by a condition of its property within the limitations of N.J.S.A. 59:4-2.  To impose liability on a public entity pursuant N.J.S.A. 59:4-2, a Plaintiff must prove the following five elements: (1) a dangerous condition existed at the time of Plaintiff’s injury; (2) Plaintiff’s injuries were proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kinds of injuries that Plaintiff sustained; (4) the public entity created the dangerous condition or had notice of it a sufficient time prior to Plaintiff’s injury to have taken measures to protect against it; and (5) the public entity’s failure to take action to protect against the dangerous condition was palpably unreasonable.  Failure to prove all five elements defeats Plaintiff’s claim.

In order to satisfy the first element, a claimant must show that there was a dangerous condition, defined as a “condition of property that creates a substantial risk of injury” when the property is used with due care in a reasonably foreseeable manner.  N.J.S.A. 59:4-1a.  Courts interpreting this definition ask whether the condition created a substantial risk of harm to persons, generally, who would use the public property with due care in a foreseeable manner.

In a long line of cases, courts have held that minor imperfections on public travel-ways are not dangerous conditions under the Tort Claims Act because they do not pose a substantial risk of injury to the public.  Courts have so held notwithstanding the fact that the imperfections may directly cause Plaintiffs severe injuries or even death.

For example, in Polyard v. Terry, 160 N.J. Super. 497, 504, 507-08 (App. Div. 1978), aff’d o.b. 79 N.J. 547 (1979), a man drove his car over a three-eighths-inch declivity connecting a highway to a bridge, and then drove over a section of pavement that had comparatively less traction than the rest of the road.  As he drove over these two defective conditions, another car cut him off.  The man lost control of his vehicle, ultimately injuring one plaintiff and killing another.  In a subsequent lawsuit against the State, the Plaintiffs’ theory of the case — backed up by expert testimony at trial — was that the defective conditions of the road contributed to the man’s losing control of his car.  The jury agreed, and found the State thirty percent liable for causing the accident.  The Appellate Division (and the Supreme Court, which adopted the Appellate Division’s reasoning in its entirety) concluded that there was no dangerous condition within the Tort Claims Act notwithstanding that the jury reached a contrary conclusion, and notwithstanding that two defects in the road caused the Plaintiffs’ injury and death.  The Court explained that the Tort Claim Act establishes a threshold level of objective severity to make a defect actionable — defects falling below that threshold are not actionable as a matter of law.  The Court additionally held that a baseline number of defects must be tolerated in public property as being consistent with public expectations.

Another case rejecting the dangerousness of a condition that caused severe injuries is Charney v. City of Wildwood, 732 F. Supp. 2d 448, 452-53 (D.N.J. 2010).  There, a woman, while walking on the Wildwood boardwalk, tripped over a hole that was roughly shaped like a right triangle measuring approximately three and three-eighths inches long and one and one-half inch deep.  Even though the woman sustained multiple fractures, and even though there was evidence that the defendant had repaired adjacent wooden boards as well as the subject board in the past, the Court held that there was no dangerous condition as a matter of law.

Yet another example is Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 641, 643 (D.N.J. 1997) where a bicyclist sustained paralysis when his bicycle struck the property owner’s elevated railroad tracks, thereby launching him head-first over the handlebars and on to the street pavement.  The railroad track was raised between 5/8 and 7/8 of an inch above the roadway.  The court granted summary judgment finding that so slight a differential could not possibly be a dangerous condition creating a substantial risk of injury.  The court found that, that would impose an unfair onerous burden on the County to keep roadways free of even the slightest imperfections.  The court found further that even if one assumed that the small differential was a dangerous condition allowing such a difference could not possibly be found to be palpably unreasonable.

These three cases represent but a few of the many that hold that minor imperfections in public travel-ways are not actionable under the Tort Claims Act even if they do happen to cause substantial injuries.