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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 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.

Don’t Let Your Public Entity Client Get Tripped up by a Pothole

By way of background, a public entity is only liable for an injury proximately caused by a condition of its property within the limitations of N.J.S.A. 59:4-2.  To impose liability on a public entity pursuant N.J.S.A. 59:4-2, a Plaintiff must prove the following five elements: (1) a dangerous condition existed at the time of Plaintiff’s injury; (2) Plaintiff’s injuries were proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kinds of injuries that Plaintiff sustained; (4) the public entity created the dangerous condition or had notice of it a sufficient time prior to Plaintiff’s injury to have taken measures to protect against it; and (5) the public entity’s failure to take action to protect against the dangerous condition was palpably unreasonable.  Failure to prove all five elements defeats Plaintiff’s claim.

In order to satisfy the first element, a claimant must show that there was a dangerous condition, defined as a “condition of property that creates a substantial risk of injury” when the property is used with due care in a reasonably foreseeable manner.  N.J.S.A. 59:4-1a.  Courts interpreting this definition ask whether the condition created a substantial risk of harm to persons, generally, who would use the public property with due care in a foreseeable manner.

In a long line of cases, courts have held that minor imperfections on public travel-ways are not dangerous conditions under the Tort Claims Act because they do not pose a substantial risk of injury to the public.  Courts have so held notwithstanding the fact that the imperfections may directly cause Plaintiffs severe injuries or even death.

For example, in Polyard v. Terry, 160 N.J. Super. 497, 504, 507-08 (App. Div. 1978), aff’d o.b. 79 N.J. 547 (1979), a man drove his car over a three-eighths-inch declivity connecting a highway to a bridge, and then drove over a section of pavement that had comparatively less traction than the rest of the road.  As he drove over these two defective conditions, another car cut him off.  The man lost control of his vehicle, ultimately injuring one plaintiff and killing another.  In a subsequent lawsuit against the State, the Plaintiffs’ theory of the case — backed up by expert testimony at trial — was that the defective conditions of the road contributed to the man’s losing control of his car.  The jury agreed, and found the State thirty percent liable for causing the accident.  The Appellate Division (and the Supreme Court, which adopted the Appellate Division’s reasoning in its entirety) concluded that there was no dangerous condition within the Tort Claims Act notwithstanding that the jury reached a contrary conclusion, and notwithstanding that two defects in the road caused the Plaintiffs’ injury and death.  The Court explained that the Tort Claim Act establishes a threshold level of objective severity to make a defect actionable — defects falling below that threshold are not actionable as a matter of law.  The Court additionally held that a baseline number of defects must be tolerated in public property as being consistent with public expectations.

Another case rejecting the dangerousness of a condition that caused severe injuries is Charney v. City of Wildwood, 732 F. Supp. 2d 448, 452-53 (D.N.J. 2010).  There, a woman, while walking on the Wildwood boardwalk, tripped over a hole that was roughly shaped like a right triangle measuring approximately three and three-eighths inches long and one and one-half inch deep.  Even though the woman sustained multiple fractures, and even though there was evidence that the defendant had repaired adjacent wooden boards as well as the subject board in the past, the Court held that there was no dangerous condition as a matter of law.

Yet another example is Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 641, 643 (D.N.J. 1997) where a bicyclist sustained paralysis when his bicycle struck the property owner’s elevated railroad tracks, thereby launching him head-first over the handlebars and on to the street pavement.  The railroad track was raised between 5/8 and 7/8 of an inch above the roadway.  The court granted summary judgment finding that so slight a differential could not possibly be a dangerous condition creating a substantial risk of injury.  The court found that, that would impose an unfair onerous burden on the County to keep roadways free of even the slightest imperfections.  The court found further that even if one assumed that the small differential was a dangerous condition allowing such a difference could not possibly be found to be palpably unreasonable.

These three cases represent but a few of the many that hold that minor imperfections in public travel-ways are not actionable under the Tort Claims Act even if they do happen to cause substantial injuries.

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