Plaintiff Ercilia Rojas, while walking on the boardwalk in Atlantic City, tripped and fell over a raised board. As a result of her fall, she suffered a rotator cuff tear in her shoulder. She sued Atlantic City, among other defendants, alleging negligence for a dangerous condition on public property. The issue in Rojas v. AC Ocean Walk, LLC, 2022 N.J. Super. Unpub. LEXIS 2083 (App. Div. Nov. 10, 2022), was whether defendant Atlantic City had “constructive notice” of this tripping hazard and, thus, could be held responsible for Plaintiff’s fall.
Atlantic City was granted summary judgment by the trial court, which dismissed the complaint. However, the Plaintiff appealed, arguing that she had proffered sufficient facts to show that there was a dangerous condition on public property.
The Appellate Division noted that public entities are immune from tort liability under the Tort Claims Act unless the plaintiff is able to prove that a dangerous condition of public property caused the injury, that it created a reasonably foreseeable risk of the kind of injury incurred, that either the condition was caused by an employee or the entity knew of the condition, and that the entity’s conduct was palpably unreasonable.
Here, the City’s Department of Public Works supervising mason admitted in a deposition that the raised board created a tripping hazard. But, for the public entity to be liable for plaintiff’s injury, the plaintiff must be able to prove that the entity had either actual or constructive notice of the condition. If the allegation is constructive notice, the plaintiff must show “that the condition 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.”
The Plaintiff did not contend that the City had actual knowledge of the raised board. Instead, the Plaintiff argued that the City failed to exercise due care to discover the dangerous condition and, therefore, should be charged with constructive notice.
The Public Works supervising mason testified that he regularly inspected the City’s Boardwalk, dividing it into zones and each day inspected a half mile section to visually inspect the boardwalk by foot. The last time the portion of the boardwalk where plaintiff fell was visually inspection was 3 days before her fall. Plaintiff argued that, had the City exercised due care, it would have discovered the problem with the raised board.
The Appellate Division rejected Plaintiff’s argument. The Court stated that “Plaintiff is not entitled to the benefit of demonstrating constructive, as opposed to actual, notice of a dangerous condition by speculating that it existed ‘for such a period of time’ and was actually present when the City’s reasonable inspection program would have detected the problem.” Further, even if Plaintiff was able to prove constructive notice, the City had an organized inspection program that addressed dangerous conditions, including raised boards, on its boardwalk. The Appellate Division found that “[n]o reasonable factfinder could conclude that the City’s conduct was palpably unreasonable simply because the inspections did not take place” within the 3 days before the accident and “this raised board-among thousands of boards on the boardwalk-was not detected in advance of plaintiff’s accident.”
Hence, the Appellate Division affirmed the trial court decision, dismissing the complaint as to Atlantic City.
