Article by Betsy G. Ramos

Plaintiff Joanne Green was riding her bicycle in the middle of a street located in defendant Borough of Englewood Cliffs.  After making a right hand turn into an intersection, she hit a patch of loose gravel in the middle of the intersection, which caused her to fall off her bike and suffer injuries.   Her claim was that the loose gravel originated from either an inadequate repair of a pothole or other defect on one of the roads that formed the intersection.  The issue in Green v. Borough of Englewood Cliffs, 2019 N.J. Super. Unpub. LEXIS 1571 (App. Div. July 9, 2019) was whether the defendant municipality could be liable for the plaintiff’s injury suffered due to the condition of the roadway.

Englewood Cliffs maintains a total of 37 road miles, including the two roads that form the intersection in which the plaintiff fell.  The superintendent at the DPW testified that he had limited staff to maintain the roads given the workload of the department.  He also testified that he was unaware of any loose gravel or potholes in the intersection before the plaintiff’s fall.

The municipality repaired potholes using both a hot asphalt method and cold patch mix, depending upon the weather.  The DPW superintendent claimed that the gravel discovered in the intersection was not made of material that the municipality used for any purpose.  He opined that the gravel may have fallen from a truck that had been improperly covered.

The plaintiff utilized an expert who photographed the intersection and claimed that it showed deteriorating conditions of the roadway and temporary/improper repairs.  The expert opined that the color of the loose gravel indicated the gravel came from a breakdown of asphalt pavement, which subsequently migrated to the middle of the intersection.  Further, he claimed that there were numerous areas of the road that had been patched with hot mixed asphalt or cold patched asphalt.  Further, he opined that the roadway repair process utilized by the DPW resulted in a dangerous condition at the subject intersection at the time of plaintiff’s fall.

The defendant moved for summary judgment, which was granted by the trial court.  The trial court found that the record did not show that the injury was proximately caused by the dangerous condition but, rather due to the plaintiff’s lack of attention.  Further, the court concluded that there was no merit to plaintiff’s claim that defendant’s actions or omissions with respect to maintaining the subject area of the road were palpably unreasonable.  The plaintiff appealed this decision to the Appellate Division.

To be able to pursue a claim against a public entity for a dangerous condition of public property, based upon the Tort Claims Act, the Appellate Division noted that the plaintiff must prove the following five elements:

1. 1. A dangerous condition existed on the property at the time of the injury;
   2. The dangerous condition proximately caused the injury;
   3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred either because (a) the dangerous condition was caused by a negligent employee, or, alternatively, (b) the public entity knew or should have known about the condition; and
   4. The entity’s conduct was palpably unreasonable.”

Here, the Court accepted as undisputed that there was gravel in the middle of the intersection and that it caused plaintiff to skid and fall.  Further, for purposes of the motion, it accepted as true the plaintiff’s contention of the gravel in which he skidded was caused by the municipality’s use of materials on the road that easily crumbled, which caused the loose gravel to form and, further, the defendants failed to promptly remove such gravel.  However, the Appellate Division agreed with the trial court that the municipality’s conduct was not palpably unreasonable.

The Court noted that the term palpably unreasonable “implies behavior that is patently unacceptable under any given circumstance.  Further, the court noted that “for a public entity to have acted or failed to act in a matter that is palpably unreasonable, it must be manifest and obvious that no prudent person would approve of its course of action or inaction.”

The Appellate Division here cited back to the Supreme Court’s decision in Polzo.  In Polzo, the Supreme Court observed that, “notwithstanding that roadways are used by bicyclists, roadways generally are built and maintained for cars, trucks and motorcycles, not bicyclists.”  The Appellate Division recognized “that bicyclists do face inherent dangers on roadways, such as potholes, which do not present hazards to the drivers of and the passengers and motor vehicles – the general, intended users of the roadways.”  Further, the Count found that roadways cannot possibly be made or maintained completely risk free for bicyclists.  The Court noted further that not every defect in a highway, even if caused by negligent maintenance, is actionable.

The Appellate Division found that even if the defendant’s actions were the proximate cause of the plaintiff’s injuries, the plaintiff failed to meet her burden of establishing that defendant’s conduct was palpably unreasonable.  The Court found that it was not palpably unreasonable for defendants to fail to remove the gravel at issue here because it was material that a car would harmlessly pass over.  Municipalities do not have a duty to make roadways risk free for bicyclists.  Last, the Court stated that a public entity “in choosing when and what repairs are necessary might reasonably give lesser priority to correct conditions harmless to vehicles.”

Thus, the Court did not need to reach the issue of whether plaintiff’s actions were the proximate cause of her injuries and it affirmed the trial court decision in dismissing the case.

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.