Jersey City Found Not Liable for Accident Resulting from Plaintiff’s Motorcycle Striking its Fire Hydrant

By Betsy G. Ramos, Esq.

Public entities can be liable if they create or allow a dangerous condition to exist on their property. In Bunero v. City of Jersey City, 2015 N.J. Super. Unpub. LEXIS 2784 (App. Div. Dec. 3, 2015), plaintiff George Bunero was injured when his motorcycle was struck in the rear by the defendant DaSilva’s motorcycle, propelling plaintiff’s motorcycle to the side of the road and up the curb. The plaintiff’s right leg struck the nozzle cap of the City’s fire hydrant, located on the sidewalk, causing plaintiff to suffer a leg fracture. The plaintiff sued the City on the basis that the fire hydrant was improperly placed and constituted a dangerous condition.

The City filed a motion for summary judgment, arguing that the fire hydrant did not constitute a dangerous condition of property. The trial court judge concluded that the hydrant was not a dangerous condition and that the City’s actions as to the hydrant were not palpably unreasonable.

Upon appeal, the plaintiff argued that the motion judge erred by granting summary judgment to the City. The plaintiff contended that he had presented sufficient evidence to support his claim against the City.

The Appellate Division found that the motion judge had erred by determining that the fire hydrant was not a dangerous condition. According to the plaintiff’s expert, the nozzle cap of the hydrant was only 1.5 inches from the curb line, which was less that the six inches recommended by the American Water Works Association (“AWWA”), as stated in 1938. In 1970, the AWWA published a statement recommending a set-back of 2 feet from the curb line to the point of the hydrant nearest the curb and that remained the standard in 2010.

Thus, the Court found that the plaintiff did present sufficient evidence from which a reasonable jury could conclude that the hydrant’s proximity to the curb line posed a danger to a person on a motorcycle who veers close to the curb line. Further, a jury could find that the hydrant created a reasonably foreseeable risk of the kind of injury which was incurred.

However, the Appellate Division agreed with the trial court judge that a reasonable jury could not find that the City’s action or inaction with regard to the hydrant was “palpably unreasonable.” Under the Tort Claims Act, a plaintiff has the burden of demonstrating that a public entity acted in a palpably unreasonable manner with regard to an alleged dangerous condition, which is a more onerous showing then ordinary negligence. Here, it was undisputed that the hydrant had been at its location since at least 1939. No evidence had been presented that the hydrant had been the cause of any incident or injury in that time.

Further, the City’s engineer testified that, based upon the City’s diagrams and his own analysis, the City probably could not have installed the subject fire hydrant further from the roadway, due to the adjacent property line and he location of the water main. Although the plaintiff insisted that the movement of the fire hydrant further back from the cub line was not impossible, he failed to show that the City’s failure to do so was a course of action or inaction that “no prudent person would approve of.”

The court considered that the City had thousands of fire hydrants on its properties and it was unclear how many of them were in close proximity to the roadways. However, it noted that the subject fire hydrant had been at its location for more than 70 years, apparently without any reported complaint or injury. Undoubtedly, the City had considerable responsibility for the maintenance of it properties and limited public resources for that purpose.

Hence, the Appellate Division concluded that a reasonable jury could not find that the City’s failure to move the hydrant further away from the roadway was palpably unreasonable. Accordingly, it affirmed the trial court’s order for summary judgment, dismissing the complaint.