Plaintiff Linda Emmanoulidis was walking her dog in Enos Park in Jersey City when she tripped and fell on an uneven pavement and sustained injuries. The issue in Emmanoulidis v. City of Jersey City, 2023 N.J. Super. Unpub. LEXIS 477 (App. Div. Mar. 30, 2023) was whether the City could be liable for a pedestrian accident caused by a trip and fall on an uneven pavement under the Tort Claims Act.
Prior to her fall, Plaintiff had never walked in the area before and did not know how long the condition existed. After her fall, Plaintiff retained an engineering expert who opined that the elevation of the crack where Plaintiff stated she fell was 1/2 – 3/4 inches. In his report, the expert noted that some of the concrete sidewalk slabs showed signs of repairs but not in the specific area where plaintiff fell. The report did not indicate when the repairs were done and who performed the work.
Plaintiff sued the City of Jersey City claiming that the uneven pavement was a dangerous condition which caused her accident. The City moved for summary judgment dismissal, contending that the plaintiff had not established the existence of a dangerous condition of which the City had actual or constructive notice. In addition, the City contended plaintiff did not demonstrate that the City’s conduct was palpably unreasonable. In response to the motion, plaintiff presented a certification from her brother-in-law, a retired Jersey City police officer. He certified that, in course of his job, he had searched evidence in the area where plaintiff fell and the condition of the pavement was exactly as it was on the day she fell for at least four years.
The trial court granted the City’s motion for summary judgment, holding that the plaintiff had not demonstrated the uneven sidewalk was a dangerous condition and that the City had actual or constructive notice of the “declivity in the walkway.” The Court reviewed the photographs on record and concluded that the condition was not so open and obvious to provide the City of constructive notice of a dangerous condition.
Upon appeal, plaintiff argued that the court erred in finding: 1) the uneven pavement was not a dangerous condition; 2) the City was aware of the dangerous condition; and 3) the City’s failure to fix the dangerous condition was palpably unreasonable. The Appellate Division noted that under the Tort Claims Act, a dangerous condition exists when there is a defect in the physical condition of the property itself. The Court held that whether the defect in the pavement was a dangerous condition could be left to the jury for determination.
To determine the issue of notice, the Court considered that the plaintiff could not establish: 1) the duration for which the crack was present; 2) there was no evidence to show that the City had actual knowledge of the crack; 3) the City had no record of any complaints regarding the crack; and 4) the certification offered by plaintiff’s brother-in-law did not satisfy the notice to public entity standard. In addition, plaintiff could not show the crack was open and obvious. Thus, the Appellate Division held that plaintiff did not demonstrate that the City had actual or constructive notice of the defect. Therefore, the Court ruled that the plaintiff did not establish that the City was liable under the Tort Claims Act and affirmed the summary judgment dismissal.
