Plaintiff Reginald Jones was injured when he was attempting to cross in the middle of Isabella Avenue in Irvington. While stepping off the curb, his foot became stuck in a hole in the street adjacent to the curb. It caused him to fall and suffer injuries. The issue in Jones v. Township of Irvington, 2024 N.J. Super. Unpub. LEXIS 176 (App. Div. Feb. 6, 2024) was whether he could pursue a claim against the Township for its failure to remediate the pothole.
Personal injury claims against public entities are governed by the Tort Claims Act. To be able to sue a public entity for tort liability for injuries caused by that entity’s property, under N.J.S.A. 59:4-2, the plaintiff must establish the property was in a dangerous condition at the time of the injury and that the condition was either created by an employee of the public entity or the public entity had actual or constructive notice of the condition. However, even if the plaintiff is able to present those proofs, the public entity would not be liable for the dangerous condition of its property “if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”
There were two issues in this case. First, the issue was whether the plaintiff had sufficiently established that there was a dangerous condition of the Township’s property at the time of his accident. Second, the issue was whether the Township had notice that the property was in a hazardous condition.
While the parties conducted discovery, there were no depositions taken and there were no experts retained. The only evidence of the pothole were 11 photographs of the roadway produced by the plaintiff. The photographs showed a hole which was surrounded by vegetation growth, cracked, and filled with garbage and vegetation. According to the plaintiff, the hole measured about 19 inches long, 19 inches wide, and 16 inches deep.
Once discovery concluded, the Township filed for a summary judgment. It argued that the plaintiff had failed to state a claim that the plaintiff’s injuries were caused by a dangerous condition of its property. Plaintiff opposed that motion, arguing that the Township had constructive notice of the ‘“large sinkhole.’”
The trial court judge granted the motion for summary judgment. The judge ruled that plaintiff had failed to present any competent evidence other than speculation and legal conclusion to prove that the hole was in a dangerous condition. The trial court judge noted that the only evidence in support of the condition of the property were the photographs attached to plaintiff’s answers to interrogatories which were not glossy color photos, nor were they provided with any certification stating who took the photos and when they were taken. Further, the plaintiff failed to prove that the Township had notice of the condition.
Plaintiff filed a motion for reconsideration, which was denied, again on the same basis due to the plaintiff’s failure to prove the Township had prior notice of the condition or had adequate proofs as to its actual condition. The plaintiff appealed this decision to the Appellate Division.
The Appellate Division found that the trial court correctly ruled that plaintiff had failed to establish liability under the Tort Claims Act due to lack of evidence that the Township either caused the hole in the street or had actual or constructive notice of the hole. In support of the notice argument, plaintiff cited to a Township Public Works website that street sweepers were on Isabella Avenue twice a week. However, the Court found this information insufficient to show that the Township had constructive notice of the hole.
The Court also found that plaintiff had failed to offer any expert testimony or proofs showing that there were any reports about the hole which could have established that the Township had actual notice thereof. Last, the Appellate Division found that the plaintiff had failed to submit any proofs that the Township acted in a “palpably unreasonable manner.” The Appellate Division agreed with the trial court that the plaintiff’s claim was based on nothing more than ‘“mere speculation.’”
The appeals court also agreed with the trial court that the photographs themselves were insufficient competent evidence due to the lack of foundation as to these photographs. The plaintiff had failed to offer any competent testimony “concerning the measurements of the hole, who took the photographs, when they were taken, and if they were altered.”
Hence, the Appellate Division agreed that plaintiff failed to meet his burden under the Tort Claims Act to “establish that the Township had or could have had actual or constructive notice of the hole in the middle of Isabella Avenue.” Therefore, the Court affirmed the trial court decision, dismissing the lawsuit.
