The New Jersey Tort Claims Act provides that “a public entity is not liable for an injury” caused by an act or omission “[e]xcept as otherwise provided by this act.” Under the Act, immunity is the rule and liability is the exception. Posey ex rel. v. Bordentown Sewerage Auth., 171 N.J. 172 (2002). One exception to this immunity under the Tort Claims Act is the provision in N.J.S.A. 59:4-4, which places a duty on a public entity for damages proximately caused by its failure to provide warning of a dangerous condition which “endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.”
A public entity is responsible for warning the public of a dangerous condition on its property. However, the Appellate Division has held that a public entity cannot be held liable under N.J.S.A. 59:4-4 for a condition of a property it does not own, control, or maintain absent actual notice of that specific condition. See DeBonis v. Orange Quarry Co., 233 N.J. Super. 156 (App. Div. 1989) (emphasis added). The important question in DeBonis was whether a public entity could be held liable simply because an accident occurred within its boundaries. The Appellate Division ultimately upheld the trial court’s ruling that failure of a public entity to warn of a dangerous condition that merely lies within its boundaries is not sufficient to impose liability under N.J.S.A. 59:4-4 absent actual notice.
In DeBonis, the plaintiff was injured in a motorcycle accident caused by the presence of many small stones in the roadway that allegedly came from the Orange Quarry Company. The plaintiff sued Orange Quarry Company and H.B. Mellot Estate, Inc. who were involved in crushing and transporting the stones. The plaintiff also sued Essex County as the owner of the roadway and West Orange Township, arguing the Township failed to warn of the stones in the roadway.
The trial court construed the Tort Claims Act to require proof the public entity had actual notice of the dangerous condition where the public entity was not the owner of the property to impose liability. Constructive notice was not sufficient. The Appellate Division affirmed the ruling, holding that West Orange Township did not have actual notice of the stones in the roadway and could not be held liable under the Act.
The Burlington County Superior Court recently granted a motion for summary judgment, submitted by Capehart & Scatchard on behalf of Evesham Township, in a wrongful death lawsuit filed by the estate of a woman who was tragically struck and killed by a vehicle while crossing Route 70 at its intersection with Troth Road in Evesham Township.
The accident occurred at night and Plaintiff (the estate) alleged that the overhead streetlights at the intersection were inoperable, making the intersection too dark for vehicular and pedestrian traffic and thereby creating a dangerous condition under the Act. Numerous entities were sued in addition to Evesham Township.
The State of New Jersey owned and maintained Route 70. The State also owned and maintained the overhead streetlights that were alleged to have been inoperable at the time of the accident. The accident occurred within the boundaries of Evesham Township, but Evesham Township did not own, control, or maintain either Route 70 or the overhead streetlights.
Plaintiff argued that Evesham Township police officers would travel through the intersection where the accident occurred numerous times a shift and would have had countless opportunities to see that the overhead lights were inoperable. However, the trial court held that there was no evidence of actual notice – only constructive notice. The record was devoid of any evidence that any officer, or anyone from Evesham Township, was aware that the overheard streetlights were inoperable before the accident. The only argument made was that the officers should have known the lights were out by the number of times they would have travelled through the intersection. The Court ruled that this “constructive notice” was insufficient. As such, Evesham Township could not be held liable for failing to warn of a dangerous condition under N.J.S.A. 59:4-4 and was dismissed from the lawsuit.
