Sidewalk Raised by 1 ½ Inches Determined to be Dangerous Condition

By: Betsy G. Ramos

In the unpublished decision of Colon v. Woodbridge Housing Authority, Docket no. A-1634-12T4 (October 30, 2013), the Appellate Division ruled that a 1 ½ inch raised sidewalk could constitute a dangerous condition under the Tort Claims Act. But, the Appellate Division, finding that the actions or inactions of the defendant Woodbridge Housing Authority were not palpably unreasonable, affirmed the trial court’s dismissal of the case.

The Plaintiff, Yvette Alvarado-Colon, claiming injury when she tripped over a raised public sidewalk, sued the defendant, Woodbridge Housing Authority. The sidewalk was located outside of the entrance way to a public building and was intended for pedestrian travel.

The trial court judge granted the Authority’s motion for summary judgment, finding that no dangerous condition of public property existed. The plaintiff filed this appeal.

The plaintiff submitted an expert report that this raised sidewalk was reflective of basic construction defects and that the condition had been clearly present for a substantive time period before the accident. The expert stated that it took several years to produce this level of concrete ridge formation.

The trial court judge found that no dangerous condition existed. The Appellate Division, however, disagreed, holding that a jury could consider a 1 ½” declivity across a sidewalk a dangerous condition under the Tort Claims Act.

But, the court pointed out that the Act also requires a plaintiff to prove that the defendant’s actions or inactions in connection with this alleged dangerous condition were palpably unreasonable. The condition of the property must pose a substantial risk of harm. The Appellate Division also stated that not every defect in a public roadway, even when caused by negligent maintenance, is actionable.

Here, the Appellate Division noted that there was no evidence of prior tripping hazards and that such “minor” irregularities are commonplace on sidewalks. Thus, the court held that the plaintiff’s proofs, at best, established ordinary negligence, rather than patently unacceptable conduct, the standard needed to prove palpably unreasonable conduct. Accordingly, the court affirmed the trial court’s dismissal.

Although this is an unpublished decision, it could be very helpful in defending against sidewalk fall cases. The court’s finding that a 1 ½” differential could be a dangerous condition is not surprising. However, finding that these types of irregularities in a public sidewalk are “commonplace” and that the Authority’s failure to remediate was not palpably unreasonable in light of no prior tripping hazards could be a very useful argument in summary judgment motions in these types of cases.