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Plaintiff’s Lawsuit Against Municipality Dismissed Due to Failure to Prove Constructive Notice of Alleged Dangerous Condition

Plaintiff Margaret Kelly, as Guardian ad litem for Rebecca Kelly, filed a lawsuit on behalf of Rebecca due to an accident at her parent’s condominium complex.  Rebecca was a guest of her parents at Back of Bay Condominium Association in Wildwood, when she fell in a trash collection and utility common area exterior to the condominium unit owned by her parents.  She fell and suffered serious injuries when she stepped on one of six water meter pits in the area, causing the lid to dislodge and her foot to fall into the pit.  The issue in Kelly v. Back of Bay Condominium Association, Inc., 2026 N.J. Super. Unpub. LEXIS 291 (App. Div. Feb. 19, 2026) was whether the City of Wildwood defendants could be held liable for her fall due to the condition of the loose pit cover.

Rebecca was a disabled individual with a condition known as “brittle bone disease.”  The accident happened when she was carrying a recycling container, attempting to place it in the area of the water meter pits, when she fell.  She stepped on one of the water meter pits and, due to the loose lid, it dislodged and her foot fell into the pit.  She suffered serious injuries to her left foot and ankle, requiring surgery.  She also suffered an injury to her shoulder.  She needed surgery on both her left foot and her shoulder due to her fall.

Within a few weeks of her accident, the Senior Meter Reader and Water Inspector for the City of Wildwood inspected the condominium’s utility area to observe where Rebecca fell.  He found that the lid had a frozen nut and it would not allow the lid to be locked down by whoever was there last.  As a result, he took it away, put it on his truck and put a new lid on it.

Plaintiff filed a lawsuit against multiple defendants, including the condominium association, the City of Wildwood, the City of Wildwood Municipal Utility Authority, City of Wildwood Water Utility, and City of Wildwood Sewer Utility.  Plaintiff settled out with some defendants or reached voluntary dismissals as to others, but not the Wildwood defendants. 

In discovery, it was disclosed that the City had transmitters located on top of the lid and that the water meter pit and equipment in question was last replaced some years before the accident.  The testimony from the Water Director for the City was that the water meter pit lids had software or machines that pick up the readings from the meter and transfers the information remotely to staff as they ride up and down the street.  Thus, remote meter reading eliminated the need for quarterly on-site inspections of each meter and was both faster and more effective.  The meters were read electronically on a quarterly basis.

After the conclusion of discovery, the Wildwood defendants filed for summary judgment, seeking dismissal of all claims.  In response to the motion, plaintiff conceded that there was no evidence of actual notice of the alleged dangerous condition posed by the loose lid.  However, plaintiff argued that there should be constructive notice of the alleged dangerous condition.  The trial court disagreed and granted summary judgment.  This appeal ensued.

The Appellate Division noted that, under the Tort Claims Act, a public entity may only be liable for a personal injury caused by the dangerous condition of its public property.  Among other elements that a plaintiff must prove, the plaintiff must prove that the public entity had actual or constructive notice of the dangerous condition for a sufficient time prior to the injury to take measures to protect against the dangerous condition.

Because plaintiff conceded that the Wildwood defendants lacked actual notice of the dangerous condition, the Appellate Division only analyzed whether plaintiff had established constructive notice under the Tort Claims Act.  The Court concluded that plaintiff failed to establish that the Wildwood defendants had constructive notice.  Plaintiff argued that under the City’s ordinances, the internal policies on lid safety and the replacement of the frozen nut after the accident supported “a reasonable inference that unsafe conditions were regularly observable and existed for a sufficient period of time to establish constructive notice.”

The Appellate Division pointed out that although the Wildwood defendants conceded that there was a loose pit lid and that such condition presented a danger, it is well settled that “the mere existence of an alleged dangerous condition is not constructive notice of it.”  There were no proofs showing that Rebecca, her family members, or any of the condominium’s residents had reported or complained about a loose or unsecured meter pit lid prior to the fall.  As the trial court noted, there was no information as to how long the lid was loose, whether it was for an hour, a week, a month or a year. 

Plaintiff also argued that constructive notice may be imputed to the Wildwood defendants based upon their duty to “inspect, detect and correct missing and loose lids.”  The Appellate Division agreed with the trial court judge that this argument was a misinterpretation of the applicable law and would essentially impose strict liability on the part of the Wildwood defendants for any injuries that arose from any sort of dangerous condition that existed on their property.

The Court pointed out that such an interpretation of the Tort Claims Act would be antithetical to its statutory purpose “to provide general immunity for all governmental bodies except in circumstances where the Legislature has specifically provided for a liability.”  Thus, the Appellate Division agreed that the existence of a general duty, policy, or training for public utility employees was insufficient to satisfy the notice requirement of the Tort Claims Act under the circumstances presented. 

The Appellate Division also addressed whether the City’s conduct was “palpably unreasonable” in failing to detect and correct the loose water pit lid condition.  The Court found that because plaintiff did not establish that the Wildwood defendants had constructive notice of the loose water pit lid, its failure to repair it prior to plaintiff’s fall could not be viewed as palpably unreasonable conduct. 

Hence, for all of the above reasons, the Appellate Division upheld the trial court’s decision to dismiss the lawsuit as to all of the Wildwood defendants.

Tort Claims Act Protects Borough from Liability for a Pedestrian’s Trip and Fall in a Pothole

Plaintiff Galina Benimovich tripped and fell in a pothole located in the street in front of her daughter’s residence in Montvale’s residential Hickory Hill neighborhood, causing her to fracture her wrist and sue the Borough in Benimovich v. Borough of Montvale, 2026 N.J. Super. Unpub. LEXIS 23 (App. Div. Jan. 7, 2026). That area of Hickory Hill lacked sidewalks, causing all pedestrians to use the street. Montvale’s records showed that multiple complaints and repairs had been made of similar potholes in Hickory Hill, but those records showed no similar complaints or reports of any roadway defects in 2021, about the time of the plaintiff’s fall, in the location of the plaintiff’s fall. Montvale expressly prioritized larger, more serious potholes they considered an “emergency,” typically three to four inches deep that “can take out a tire or a bicycle or be considered a tripping hazard.” The pothole was an inch-and-a-half deep, about three feet long, and about a foot wide. The plaintiff’s engineer determined a pothole of one-quarter of an inch deep presented a tripping hazard, and that this pothole far exceeded that standard, particularly where pedestrians were anticipated to pass due to the lack of sidewalks.

Montvale filed for summary judgment pursuant to the Tort Claims Act, N.J.S.A. 59:4-1-1, et seq. (TCA), claiming the plaintiff could not establish the pothole in question was a dangerous condition, actual or constructive notice of the pothole in which she fell, or that Montvale’s failure to respond to the danger posed by the pothole was “palpably unreasonable.” The trial court agreed, specifically finding that the plaintiff failed to establish Montvale’s notice of “this particular pothole.” As a result, the plaintiff appealed.

On appeal, the plaintiff emphasized prior New Jersey TCA case law that established a three-fourths inch depression in a roadway was sufficient to constitute a dangerous condition. Further, the potholes in Hickory Hill were a known, recurring problem, as Montvale’s own records established, giving the Borough constructive notice of the dangerous condition. Finally, the plaintiff stated that Montvale’s failure to fix this pothole was palpably unreasonable due to knowing potholes would occur regularly in Hickory Hill and failing to properly keep records to record and address those dangers. The Appellate Division disagreed on all counts.

In finding the pothole was not a dangerous condition, the Court focused its attention on the Hickory Hill street as a roadway which, though used by pedestrians, was still principally constructed for vehicular traffic, and any defect on it could not be “viewed in a vacuum.” They reasoned that municipalities should not be compelled to retrofit or redesign roadways to accommodate pedestrians simply due to the absence of sidewalks and the resulting foreseeability of pedestrian traffic. Besides, since roadways are reasonably expected to have potholes, just because there are potholes in a roadway does not create an inherently dangerous condition.

Further, the Court underscored the fact that the plaintiff presented no evidence that Montvale knew of this pothole as a result of their lengthy history of complaints and repairs in the area. The Court pointed to the TCA, which requires the plaintiff to prove Montvale had actual or construction notice of the particular pothole in which the plaintiff fell, as shown by testimony or past records of complaints of that condition, not general knowledge of the problem in the area or past repairs.  

Finally, in finding that Montvale’s failure to act did not meet the palpably unreasonable standard, the Court found the record lacked evidence that Montvale’s “actions were so lacking in justification and patently unacceptable under any circumstances.” Despite the plaintiff’s position that the roadway was in regular disrepair, and the Borough knew, the Court found the plaintiff did not show the egregious neglect required under the palpably unreasonable standard, but that Montvale met the standard by prioritizing the use of their limited public resources on potholes they considered more hazardous and in more urgent need of attention than potholes such as this one.

Appellate Division Upholds Trial Court’s Involuntary Dismissal of Plaintiff’s Personal Injury Claim Due to Her Failure to Prove Liability

The Pro Se plaintiff Tannia Winston tried her personal injury case on her own against 7-Eleven.  She claimed that she was injured due to a slip and trip at defendant’s convenience store.  The issue in Winston v. 7-Eleven, Inc., 2025 N.J. Super. Unpub. LEXIS 1705 (App. Div. Sept. 18, 2025) was whether the trial court properly granted the defendant’s motion for an involuntary dismissal at the end of plaintiff’s case at trial.

Plaintiff commenced her lawsuit with counsel.  However, her attorney was relieved as counsel before the trial.  Therefore, plaintiff represented herself at the trial of this matter.

Plaintiff’s injury occurred when she entered a 7-Eleven in Jersey City on a rainy day to purchase a cup of coffee.  She claimed that, as she entered the store, her foot was caught under a large “object on the floor.”  She testified that she fell forward, stiffened up, and locked her knee to avoid falling.  She also claimed that an employee “quickly grabbed the object and ran it [sic] out of the building.”  Plaintiff further testified that she limped out of the store, boarded a bus to the emergency room, where a cast was placed on her leg.  She did admit upon cross-examination that it was actually a knee immobilizer.

At the conclusion of her testimony, plaintiff rested her case and 7-Eleven moved for an involuntary dismissal.  The defendant argued that plaintiff had failed to satisfy her burden of proving liability.  In particular, defendant argued that plaintiff failed to demonstrate “there was a condition in the store that was unreasonably dangerous” or that the defendant’s store was on notice of “whatever condition” plaintiff claimed caused her to trip.  Further, defendant argued that plaintiff failed to demonstrate the accident was the proximate cause of her alleged damages.

Plaintiff argued that defendant knew the object was on the floor because an employee grabbed it and commented to her about its improper placement at the entrance.  Plaintiff did not present any witnesses to testify about the object’s placement or duration at the entry.  She claimed that the judge forbade her from explicitly testifying she tripped on “cardboard” because she was unable to present expert testimony concluding that the object was cardboard.

The trial court judge granted the defendant’s motion for a dismissal.  The trial court judge found that plaintiff had failed to establish that the defendant 7-Eleven “knew or should have known of this alleged dangerous condition and failed to use a reasonable degree of diligence and care with respect to whatever the object was.” 

The trial court commented that the plaintiff was unable to tell the jury what object caused her to slip and there was no testimony about how long it was there or who put it there. Even though someone from 7-Eleven may have removed it after her incident, the trial court judge found that it did not establish that 7-Eleven was responsible for the placement of that object, how long it had been there or that they knew it was there and “they were not exercising reasonable care in their failure to remove it.”

Upon appeal, the Appellate Division noted that to prove a negligence claim in the context of a business invitee’s fall at a defendant’s premises, the plaintiff “must prove by a preponderance of the evidence: (1) defendant’s actual or constructive notice of a dangerous condition; (2) lack of reasonable care by defendant; (3) proximate causation of plaintiff’s injury; and (4) damages.”

The Appellate Division further noted that owners of premises were generally not liable for injuries caused by defects for which they had no actual or constructive  notice and no reasonable opportunity to discover them.  The Court stated that the absence of notice would be fatal to a plaintiff’s claims of premises liability.  Further, the Appellate Division noted that the “mere occurrence of an incident causing an injury is not alone sufficient to impose liability.”

Here, the Court found that the record supported the judge’s decision that plaintiff had failed to produce any evidence demonstrating that the defendant had actual or constructive notice of the condition that allegedly caused her to trip.  The Appellate Division also rejected the plaintiff’s claims that the trial court had refused to grant a continuance to allow her to produce witnesses and found that she failed to produce any evidence that the trial court judge instructed her what words were allowed for her to state and what she could not state during the trial. 

Hence, the Appellate Division affirmed the trial court’s dismissal of the lawsuit.

Appellate Division Rules That Injured Plaintiff May Pursue Pothole Claim Against Municipality

On January 29, 2021, Plaintiff Michael Shaw tripped and fell while crossing Kearny Avenue due to a large pothole in the middle of the street. He suffered significant injuries including a broken right hip, chronic lumbar strain, and aggravation of other pre-existing conditions. The issue in Shaw v. Town of Kearny, 2025 N.J. Super. Unpub. LEXIS 937 (App. Div. June 4, 2025) was whether the Township was deemed to have notice of the alleged roadway defect and, hence, could be responsible for his accident.

Typically, in accidents involving potholes, the public entity responsible for the roadway will not be held liable due to lack of notice of the pothole. Usually, they will not have actual notice of the pothole because they can appear suddenly. Further, it is often hard to prove constructive notice for the same reason. However, the facts in the Shaw case were different. Plaintiff was able to present sufficient facts to establish that the pothole was present for years and was so obvious that Kearny, using due care, should have discovered it. Hence, sufficient facts exist to establish constructive notice.

Plaintiff suffered his injury on a dark night, after parking his car on Kearny Avenue to visit a nearby bakery to make a purchase. The bakery was on the opposite side of the street from where he parked. He went to the bakery and, on the way back, crossed in the middle of the street, not in the crosswalk. He was holding a box of custard cups, not looking down and encountered a large pothole and fell. The pothole was 4 feet in length, 12 inches wide and the deepest section was about 2-3 inches deep.

At the trial court level, the trial judge found that the Township did not have actual or constructive notice of the pothole, granted summary judgment, and dismissed the lawsuit. This appeal ensued.

The Appellate Division, however, disagreed with the trial court. While there was no proof of actual notice, it held that there were facts sufficient to establish constructive notice. It found that the record did include imagery from 2012-2015 showing evidence of cracking and surface depressions. The formation of a pothole appeared on images as of July 2018 and, by October 2020, further images showed continued pavement deterioration, and evidence of large pothole formation.

During this time, Kearny was engaged in a variety of roadway inspection, planning, project finance and repair activities on Kearny Avenue. Other areas near this pothole were patched and repaired in 2018 and 2019. Plaintiff’s expert opined that the accident site continued to deteriorate. Giving all inferences to Plaintiff, the Appellate Division found that there was ample evidence for a jury “to conclude that the Kearny Avenue pothole was a dangerous condition sometime after 2015; the dangerous condition existed for a significant period of time prior to the accident; and the dangerous condition was obvious, so much so that Kearny, using due care, should have discovered it.”

The Court noted that the record showed a continually deteriorating pothole near the middle of the roadway in the Kearny central business district where the Township had multiple opportunities to discover it. Hence, the Appellate Division disagreed with the trial court’s assessment as to the lack of notice and reversed the court’s order for summary judgment.

Municipality Found to Have No Liability for Injury Caused by Trip on Uneven Boards on Boardwalk

Plaintiff Jessica Feeney tripped and fell while walking on the boardwalk in the City of Atlantic City.  She sued the City claiming that she tripped on uneven boards and that the City was negligent in causing the dangerous condition and that it failed to timely repair the condition.  The issue in Feeney v. City of Atlantic City, 2025 N.J. Super. Unpub. LEXIS 421 (App. Div. Mar. 19, 2025) was whether the City could be liable for either causing or failing to repair the boardwalk before the plaintiffs’ accident.

This accident occurred on August 30, 2019, when plaintiff was walking on the boardwalk in the City near the Showboat Hotel.  Plaintiff testified that there was a raised board and her right foot rolled on the uneven board and her leg buckled.   She tripped, fell and injured herself.  She denied noticing the uneven board before she fell.  After the accident, her husband went back and took photos which showed that there was one board that was lower than the adjacent board with a displacement of approximately 1 inch. 

She and her husband sued the City, claiming that the City was negligent in causing the condition on the boardwalk and in failing to timely repair the uneven board.  She retained a liability expert, Arthur Chew, who reviewed the photographs and opined that there was a hazardous condition.  He also opined that the City’s police vehicles and public works vehicles that ride on the boardwalk placed high stresses in the boardwalk and they may cause the boards to become uneven. 

The expert relied upon testimony from City employees who explained that the boards could become uneven for numerous reasons which included weather, shifting of the boardwalk foundation, sand being pushed up against the underside of the boardwalk and vehicles going across the boardwalk.  Displacements of more than a ¼ of an inch between boards were something that needed to be looked at.  The City also admitted that any vehicle on the boardwalk does damage.

The City filed for summary judgment, arguing that it was shielded from liability under the Tort Claims Act.  It asserted that it had no actual or constructive notice of the uneven boards where plaintiff fell.  It also argued that its conduct in inspecting the boardwalk, which was approximately 4½ miles long, was not palpably unreasonable.  Finally, it contended that the uneven boards or raised boards did not constitute a dangerous condition as defined by the Act.

The trial court granted the summary judgment and dismissed the case.  It found that the uneven condition of the boards did constitute a dangerous condition.  However, there was no evidence that the City caused the dangerous condition.  It found plaintiffs’ liability expert’s opinion to be speculative because there were no facts to support that the City had caused the boards to become uneven. Knowing that vehicles might cause the boardwalk to become uneven in certain places did not establish that the boards where plaintiff tripped became uneven because a vehicle drove on those boards.  Further, there were no facts to establish when the boards became uneven and, thus, a jury could not conclude that the City failed to repair the dangerous condition in a reasonable period of time. 

Finally, the trial court also concluded that the City had not acted palpably unreasonably.  The trial court pointed out that the City had an inspector who regularly inspected the boardwalk and plaintiff had presented no evidence that the City should have discovered the uneven boards before plaintiffs’ accident. 

This summary judgment dismissal was appealed to the Appellate Division.  Plaintiff argued that a trial court should not have granted summary judgment because there were material disputed facts concerning whether the City created the dangerous condition that caused her fall.  Further they argued that their expert’s opinions were not net opinions and were supported by the factual evidence.  However, the Appellate Division rejected these arguments and affirmed the trial court decision.

The Court noted that the City, as a public entity, was only liable for negligence as permitted under the Tort Claims Act.  To establish liability, the Appellate Division noted that the plaintiff must prove as follows:

1.         A dangerous condition existed on the property at the time of the injury.

2.         The dangerous condition proximally caused the injury.

3.         The dangerous condition caused a foreseeable risk of the kind of injury that occurred.

4.         The public entity had actual or constructive notice of the condition a sufficient time prior to the injury to correct the dangerous condition.

5.         The action or inaction taken by the public entity to protect against the dangerous condition was palpably unreasonable.

Here, the Appellate Division noted that there was no evidence that the City had actual knowledge of the uneven boards.  Instead, the plaintiffs’ argument was that the City knew that vehicles drove on the boardwalk, that vehicles might cause the boards to become uneven, and that the City’s vehicles going across the boardwalk likely created the uneven boards.  However, the Court found that there was no evidence from which a jury could find that the City had actual or constructive notice of this condition.  It pointed out that “[k]nowing that a boardwalk stretching more than 4 miles can be damaged on various times and various causes, including vehicles driving on or across the boardwalk, does not constitute actual or constructive knowledge of this specific dangerous condition that caused [plaintiff] to fall.”

As for plaintiffs’ theory that the City should have inspected and found the uneven boards, the Court pointed out that the problem with this theory is that plaintiffs have no evidence as to how long the boards were uneven.  Plaintiffs’ liability expert was never able to identify when the boards became uneven.  Rather, he merely speculated that the City should have discovered the uneven boards if they conduct a regular inspection.  The Court found that without knowing when the boards became uneven, a jury would have no basis to find that the City had “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

As for the last prong as to whether the City acted palpably unreasonable, the plaintiffs’ best argument was that the City should have discovered the uneven inspections where plaintiff fell by conducting more regular inspections.  However, the City did inspect for dangerous conditions on the boardwalk and there was no evidence from which a jury could find that the City’s failure to conduct more inspections was palpably unreasonable.

The Appellate Division also rejected the expert’s opinion that the City’s vehicles created the damage to the boards.  The Court pointed out that there were no facts to support this opinion.

Thus, the Appellate Division agreed with the trial court’s decision and affirmed the summary judgment dismissal in favor of the City of Atlantic City.

Court Dismisses Plaintiff’s Personal Injury Claim Caused by Fall in Pothole Located in Crosswalk

Plaintiff Nelly Reis a/k/a Nelly Gonclaves and her husband filed a lawsuit against the City of Newark for her personal injuries.  She alleged that she tripped and fell in a pothole, a couple of feet outside of a crosswalk, while she was crossing an intersection in the City of Newark.  The issue in Reis v. City of Newark, 2024 N.J. Super. Unpub. LEXIS 3053 (App. Div. Dec. 17, 2024) was whether plaintiff was able to establish that Newark had constructive notice of the pothole and, hence, could be liable for the injuries she suffered due to her fall.

On the date of the accident, Nelly parked her car and walked to her office located on Rome Street.  She parked on the corner of Rome Street and Niagara Street because she could not park on Niagara Street due to street cleaning.  While walking to work, she crossed the intersection of Rome and Niagara outside of the crosswalk.  She tripped and fell in a pothole that was a couple feet outside of the crosswalk and about 100 feet from her office.  As a result of her fall, she suffered injuries.

She testified in her deposition that while she was familiar with the neighborhood, she did not recall seeing the pothole on Rome Street before she fell.  Nelly filed a tort claim notice against the City of Newark and subsequently filed this lawsuit.  She claimed that the large pothole in the roadway created a dangerous condition.

After discovery concluded, Newark filed a motion for summary judgment.  It argued that it lacked actual notice of the pothole before the accident and only became aware of the pothole after it received Nelly’s tort claim notice.  After receiving notice, the City sent a crew to repair it. 

Plaintiff, in opposition to the motion, submitted her own deposition testimony and Affidavits from three coworkers who stated that they were familiar with this pothole and it had existed for a long period of time, many months, prior to her accident.  She also submitted Google Earth images of this intersection which showed the pothole existing before the accident.      

Nevertheless, the motion judge granted Newark’s motion for summary judgment. Plaintiff appealed the decision, arguing that Newark had constructive notice of the pothole and that her complaint should not have been dismissed.

This personal injury claim is governed by the Tort Claims Act, under which plaintiff must prove that the property was in a dangerous condition at the time of the accident, that it proximately caused the injury, the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that either a negligent or wrongful act or omission of the public employee created or knew about the dangerous condition or that it had actual or constructive notice of the dangerous condition.  (N.J.S.A. 59:4-2) Hence, the critical inquiry in this case was whether Newark had constructive notice of the dangerous condition of the pothole. 

The plaintiff argued that there were genuine material facts in dispute and that she should be entitled to present her case to a jury.  The Appellate Division noted that under the Tort Claims Act, a public entity is liable for potholes or depression in the roadway “only when the public entity is on actual or constructive notice of a dangerous condition; and the public entity’s failure to protect against the roadway defect is palpably unreasonable.”  A public entity is only deemed to have constructive notice of the dangerous condition when the plaintiff is able to establish “that the condition had 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.”

Plaintiff argued that she did provide evidence sufficient to prove the existence of the pothole before the accident.  However, the Appellate Division found that there was no evidence in the record that Newark had any notice of the pothole at the time of her fall.  Further, it found that the evidence she submitted fell “short of the competent evidence necessary to show Newark had constructive notice of the pothole.”

The Court noted that simply the admission of Google Earth photographs was not sufficient.  Plaintiff failed to offer any testimony as to whether the images were satellite or real images or when the images were captured and if any of the images were altered.

Thus, the Appellate Division agreed with the trial court decision.  It found no reason to reverse the judge’s conclusion because plaintiff had failed to meet her burden and establish that Newark had or should have had constructive notice of the pothole on Rome Street.  Thus, the summary judgment decision was affirmed.

Plaintiff’s Injury Claim Against Municipality Caused by Stepping Into Pothole Fails Due to Lack of Notice of Condition

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. 

Court Finds Township Not Liable for Injury Caused by Plaintiff’s Fall Off Bicycle Due to Hitting Pothole

Plaintiff Alyssa Molcho was riding her bicycle on Heath Avenue in Ocean Township when she swerved to avoid a car and claimed that her rear tire went into a pothole.  That caused her to fall off her bike and onto the curb, resulting in injuries. The issue in Molcho v. Township of Ocean, 2023 N.J. Super. Unpub. LEXIS 1401 (App. Div. August 11, 2023) was whether the Township could be liable for the condition of its roadway in allegedly causing the plaintiff’s accident.

Prior to the date of the accident, plaintiff had sent an e-mail to the Township’s Director of Public Works, complaining generally about the condition of Heath Avenue.  She sent him a few photographs of potholes in the road but not of the area where her accident occurred.  According to her e-mail, she had contacted public works several times since she moved to the area regarding repaving of the street.

The Director of Public Works responded to plaintiff’s complaint.  He noted that he was aware of the area to which she was referring.  He advised that this area was slated for milling and paving under the Township’s road improvement program.

Ocean Township had a road improvement program for which it would select roads for repaving to be funded out of its budget for capital improvements.  The Township’s engineer would prepare an annual list, based upon inspections performed by the Department of Public Works, grading the Township’s roads on a scale from 0 to 100, with 100 being a perfect road and 0 being the worst road.  This list would then be presented to the Township Manager with a recommendation of the roads to repave, along with the cost estimates for doing so.  In turn, the Township Manager would include the estimates in the Township’s proposed annual budget.  Once the budget was approved, the Township would put the work out for bid.  After the contracts were awarded, the contractor would schedule the work.  This entire process took about two years from inspection to repaving.  This particular road was not repaved until two months after plaintiff’s accident.

At the trial court level, the Township filed a motion for a summary judgment.  That motion was granted by the trial court judge.  The judge found that plaintiff had failed to provide any evidence about this specific pothole that she claims caused her to fall off her bike.  Plaintiff had failed to identify the specific pothole, produced no photos of it, no measurements and any person who saw the pothole in question either before or after plaintiff’s accident. 

The trial court judge held that the plaintiff had failed to establish the existence of a dangerous condition.  For purposes of the motion, however, the judge found that even if the court assumed that plaintiff had presented evidence that the road was in a dangerous condition, she was unable to establish either actual or constructive notice on the part of the Township of the alleged pothole that caused her fall based upon her failure to have ever identified the specific pothole that caused her accident.

The trial court judge rejected plaintiff’s argument that her complaints to the Township about the general condition of her street was sufficient to put the Township on notice. Because she was never able to describe the specific pothole or present evidence describing it, the trial court judge found that “she could not establish the pothole was of such an obvious nature and had existed for a sufficient time to have allowed the Township exercising due care, to have discovered and corrected the dangerous condition.” Without actual or constructive notice of the pothole, the judge found that plaintiff could not establish that the Township’s failure to have patched the pothole and repaved the road sooner was “palpably unreasonable.”

This decision was appealed to the Appellate Division.   The plaintiff argued that the Township had actual or constructive notice of the pothole that caused her fall because it had notice of the general deteriorated condition of the roadway in which plaintiff fell, which was necessitating it being repaved.  Plaintiff argued that the Township “can hardly argue simultaneously that it had no notice of a dangerous condition but nevertheless responded reasonably to it.”

Pursuant to the Tort Claims Act (N.J.S.A. 59:4-2), for a public entity to be liable for an injury caused by a condition of its property, a plaintiff must establish “that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.”  Further, the plaintiff must prove that either an employee of the public entity created that condition or that the public entity had actual or constructive notice of the dangerous condition with “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”  Further, this statute states that nothing in this provision shall “impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonably.”

The Appellate Division considered the provisions of N.J.S.A. 59:4-2 and upheld the trial court’s decision.  The Court agreed with the trial court judge “that it is difficult to see how a plaintiff could prove a public entity’s property was in a dangerous condition without identifying specifically the property – here, the pothole that caused plaintiff to fall off a bicycle.”  While in prior case law, complaints of neighborhood residents about a dangerous condition may serve to establish actual or constructive notice to a municipality of that condition, one neighbor’s complaint about a dangerous condition in a particular location does not serve as notice of the same or similar dangerous condition at a different location on the street.

Hence, applying this case law, the Court noted that the plaintiff complained about the condition of another area of the street prior to the accident.  Plaintiff’s complaint putting the Township on notice of an alleged dangerous condition of other parts of her street “did not serve as notice of a dangerous condition of the place where she fell.”

The plaintiff attempted to argue that the Township should have notice of the dangerous condition of its street when it is so full of potholes that any of them may cause an injury.  While the Court accepted for argument’s sake “that a residential street would be in a dangerous condition if it had so many potholes that a bicycle rider trying to avoid one would be dashed into another, plaintiff did not establish that Heath Avenue was riddled with potholes or that a crowd of them littered the street at the time of her fall.”

The Court noted that there was not a description or any pictures of the area where plaintiff claims she fell. Hence, the Court found that she failed to establish the existence of an issue of material fact regarding whether there was a dangerous condition of Heath Avenue and the place where she fell. 

Further, the Appellate Division found that even if it was assumed that she had established a dangerous condition and that the public entity was on notice, she “failed utterly to establish that Ocean Township’s act of selecting parts of Heath Avenue for repaving through its road improvement program or its failure to have repaved those parts sooner was palpably unreasonable.”  Under the palpably unreasonable standard, plaintiff would need to supply proof that the Township’s action was “manifest and obvious that no prudent person would approve of its course of action or inaction.”  The Appellate Division found that the plaintiff had failed to meet this standard as well. 

Hence, the trial court decision was affirmed, upholding the summary judgment order granted to the Township.

Appellate Division Finds that “Dirty” Substance on Floor Does Not Constitute Constructive Notice for Slip and Fall in Pharmacy

By: Eric Richwine, Law Clerk
Edited by: Betsy G. Ramos, Esq.

Plaintiff Michael Racine slipped and fell while walking inside defendant Rite Aid’s Irvington, New Jersey, store.  He suffered a fractured left tibia, resulting in him filing a complaint against the defendant, in which he alleged negligent maintenance of and failure to conduct reasonable inspections of the premises.  The trial judge had granted summary judgment to the defendant on the basis that the plaintiff failed to demonstrate that the defendant had actual or constructive notice of any “dangerous condition” on the premises.  The issue on appeal in Racine v. Rite Aid Pharmacy, 2023 N.J. Super. Unpub. LEXIS 959 (App. Div. June 14, 2023) was whether constructive notice can be inferred by the presence of dirt in a condition.

Plaintiff testified that he had not noticed anything on the floor as he entered the store looking to purchase hair gel, which was on a shelf close to the entrance.  He reported that he soon after fell, and after which, he noticed a “dark greasy spot” on the floor which he believed to be a mixture of dirt with either hair gel or grease.

On appeal, the plaintiff contended that the trial judge “drew all inferences against plaintiff rather than the reverse” and that he sufficiently established that defendant had “constructive notice of the condition that caused [plaintiff] to slip.”  The Appellate Division first considered whether the plaintiff was relieved of the burden to prove constructive notice via the mode of operation exception, i.e., by demonstrating that the dirty substance here was likely to occur as the result of the nature of Rite Aid’s business.  The Court quickly determined that this was not the case.

The Appellate Division then turned to whether or not a jury could find that defendant had constructive notice of a dangerous condition.  Plaintiff contended that, because “the substance appeared dirty,” the factfinder could logically infer that “the substance had been on the floor for a significant time.”  Plaintiff supported this argument by citing the Court’s decision in Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507 (App. Div. 1957), in which a plaintiff slipped and fell just inside an entrance of a store on an “all wet” and “all dirt” floor, which the Court declared was sufficient to put the defendant store on constructive notice.  

However, the Appellate Division distinguished the facts in Parmenter to those before the Court here; namely, the dirty, wet floor in the defendant store of Parmenter was the result of an all-morning rainstorm that was continuously tracking in dirt and rain into the store upon the opening and closing of its doors.

Here, there was no such storm.  The Court emphasized that, unlike in Parmenter, the plaintiff here could not identify the cause or duration of the “dangerous condition” of the dirty substance on the floor of the store.  Further, the Court rejected the contention that the presence of “dirt” permitted a speculative inference that the substance had been on the floor for an adequate period of time as to place the defendant on constructive notice.

As such, the Appellate Division found that the plaintiff failed to meet his burden of demonstrating that defendant was put on constructive notice of the dirty substance on its store’s floor, nor was he able to successfully argue that a jury could infer such. Therefore, the Court affirmed the trial judge’s granting of defendant’s motion for summary judgment.

Township Found to Have No Liability for Injury Caused by Trip Over Pothole in Shoulder of Road

Plaintiff Patrice Powers-Feigel was walking on the shoulder of Nosenzo Pond Road in West Milford when she slipped on gravel and her foot got caught on the edge of a pothole or uneven pavement.  She tripped and fell into the street, resulting in serious injuries.  The issue in Powers-Feigel v. Township of West Milford, 2023 N.J. Super. Unpub. LEXIS 495 (App. Div. Apr. 3, 2023), was whether the Township could be responsible for a pedestrian accident caused by a trip in a pothole located in the shoulder of a road.

Prior to her fall, plaintiff had walked in the same area about 25 times before without incident.  On that date, she had to walk around the base ring of a construction barrel on the shoulder before she fell.  The parking lot across the street from where she fell was under construction.  There was no walkway or sidewalk in the area where she was walking.

After her fall, plaintiff retained an engineering expert who opined that the crack in which she caught her foot measured 2½ inches wide by 1¼ deep.  He stated that the pavement surface was uneven and lacked a physical border to the pavement at the edge of the roadway, causing a tripping hazard.  He relied upon standards pertaining to walkways and sidewalks in concluding the shoulder was a dangerous condition.  He did not cite to any standards for roadway shoulder lanes in his report.

Plaintiff sued the Township of West Milford claiming that there was a dangerous condition that caused her accident.  During discovery, the supervisor of the Department of Public Works testified that the roadway was inspected weekly and cracks over ½ inch would require repair.  Plaintiff contended that this area of the shoulder could be construed as a bicycle path and further because three schools were located nearby, plaintiff asserted that recreational activity was not only the shoulder lane’s foreseeable use but it’s “intended and encouraged” use.

The defendant moved for a summary judgment dismissal, finding that the defendant was not liable to plaintiff under the New Jersey Tort Claims Act.  The court noted that the plaintiff “failed to establish the following necessary dangerous condition elements: (1) that the shoulder lane created a substantial risk of injury when it was used with due care in a reasonably foreseeable manner; and (2) that defendant had actual or constructive notice of the shoulder’s condition.”

With regard to plaintiff’s expert, the court rejected his opinion that the shoulder of a rural roadway must comply with the standards for walkways and sidewalks.  Further, the Court rejected the plaintiff’s contention that a public entity must maintain shoulder lanes used by pedestrians to the same degree that they would maintain a sidewalk.  The court found no evidence that demonstrated the shoulder on this road was considered a “pedestrian walkway” by defendant.  The court concluded that the shoulder lane was not dedicated or intended for pedestrian traffic and no dangerous condition existed on the roadway.  This appeal followed that decision.

Upon appeal, the plaintiffs advanced the same argument that the shoulder’s condition created a substantial risk of injury and was a dangerous condition.  Further, that the defendant Township had actual or constructive knowledge of the shoulder’s condition.

The Appellate Division noted the well settled principle of the Tort Claims Act is that “immunity from tort liability is the general rule and liability is the exception.”  Further, that “the mere happening of an accident on public property is insufficient to impose liability upon a public entity.”

More specifically, the Court noted that for the condition to be considered a “dangerous condition,” the “property that creates a substantial risk of injury when such property is used with due care in the manner in which it is reasonably foreseeable that it will be used.”  It must be considered that the condition of the property cannot be minor and it must be considered together with the anticipated use of the property.

Case law has defined the term “used with due care” to mean an “objectively reasonable” use. 

Based upon the facts and the legal principles in this case, the Appellate Division found that the trial court properly granted summary judgment and affirmed that decision.  The Appellate Division reasoned that cracks in a highway may constitute a dangerous condition when the highway’s roadway or shoulder are used in a foreseeable manner.  However, the term “roadway” constitutes the portion of a highway ordinarily used for a vehicular travel and the “shoulder” is “that portion of the highway, exclusive of and bordering the roadway, designed for emergency use but not ordinarily to be used for vehicular travel.”

The Appellate Division concluded that based upon the facts of this case, “that no reasonable jury could find the pothole or long depression cracks or divots gave rise to a substantial risk of injury” to plaintiff.  Essentially, the Court found that the use of a shoulder was not intended for an exercising pedestrian.

Further, the plaintiff had failed to present any evidence that defendant had actual or constructive notice of the condition of the shoulder prior to her fall.  Plaintiff admitted to walking there 25 times before without noticing anything dangerous or hazardous about the shoulder surface.  The roadway was inspected weekly for defects.  There was no proof of similar accidents in the vicinity.  The Appellate Division was satisfied that the trial court correctly found that defendant did not have actual or constructive notice of any dangerous condition that caused plaintiff’s fall and the Township’s inspection scheme was not “palpably unreasonable.”

Thus, the Appellate Division agreed with the trial court’s decision to grant summary judgment and affirmed that decision, dismissing the lawsuit. 

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