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.
