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Superior Court Upholds Tort Claims Act Protections for Failure to Warn of a Dangerous Condition

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.

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.

Notable Win: Estate of Tori Gerstenacker v. Township of Evesham, et al.

Client: Township of Evesham

Court: Superior Court of New Jersey – Burlington County 

Brief Attorney: Edward F. Kuhn III, Esq.

**Results may vary depending on your particular facts and legal circumstances**

On September 28, 2019,  Tori Gerstenacker was a pedestrian crossing Route 70 at its intersection with Troth Road in Evesham Township when she was struck and killed by a car driven by Clay Erickson. Mr. Erickson alleges that he was traveling eastbound on Route 70 and had a green light as he was about to enter the intersection at Troth Road. He did not see Ms. Gerstenacker who was crossing Route 70 in the crosswalk but crossing against a red light.

Plaintiff’s counsel alleges that there were three overhead streetlights at the intersection that were inoperable at the time of the accident making the intersection extremely dark and creating a dangerous condition for motorists and pedestrians. Plaintiff sued numerous entities including Evesham Township and the State of New Jersey.

Route 70 is a state-owned and maintained road. The state also owned and maintained the overhead streetlights. We moved for summary judgment on behalf of Evesham Township arguing that it did not own or control either Route 70 or the overhead streetlights. Plaintiff argued that Evesham Township should have been on notice of the inoperable streetlights because of the number of times its police officers travel through that intersection daily.

The court granted our summary judgment holding that Evesham Township cannot be held liable under the Tort Claims Act when it does not own or control any of the property in question unless it had actual notice of the inoperable streetlights and failed to provide proper warnings. There was no evidence that Eveshsam Township had any notice of the inoperable streetlights and summary judgment was granted.

Court Finds Plaintiffs Presented Extraordinary Circumstances Sufficient to Permit Filing of a Late Notice of Tort Claim

This matter arose from a tragic fire that occurred on April 8, 2021, at the three-story single-family residence owned by the defendant Newark Housing Authority and occupied by plaintiff Kadisha Jones Richardson and her five children.  Plaintiff Tyron Hartfield, the biological father of four of the five children, was also present at the time of the fire.  During the fire, plaintiffs’ seven-year-old son, Saahir, passed away.  Further family tragedies happened after the fire.  The issue in Richardson v. Newark Housing Authority, 2023 N.J. Super. Unpub. LEXIS 1119 (App. Div. July 5, 2023) was whether the trial court properly granted the plaintiffs’ motion for leave to file a late notice of tort claim to permit plaintiff to sue the Newark Housing Authority for losses suffered from the fire.  No tort claim notice had been filed in the required ninety (90) day time period following the loss.

In addition to the trauma of suffering the death of their son, Hartfield suffered a broken ankle in his attempt to rescue his son and the entirety of the family’s possessions were destroyed.  Plaintiffs and their family were forced to move in with Richardson’s mother.  During this time, Richardson was also caring for her mother, whose physical health was declining.  Less than three months after the fire, Richardson’s mother suffered a stroke and was hospitalized and ultimately passed away.  Further, Richardson was injured in a serious car accident.

In their motion for leave to file a late notice of tort claim, plaintiffs certified that in the months following the fire, they suffered from depression and anxiety from the loss of their son and their stress was further compounded by attending to the mental well being of their other children who had lost their brother and then Richardson’s mother.  Although plaintiffs received a death certificate on April 16, 2021, they still did not have the official cause of death or cause of the fire until November 2021.  On October 29, 2021, the plaintiffs had consulted a law firm for the first time.  However, on December 2, 2021, that law firm declined representation.

Plaintiffs retained their current counsel in March 2022.  Once counsel was retained, counsel promptly filed a motion for leave to file a late notice of tort claim on April 6, 2022, just two days shy of the one-year anniversary of the fire.  The trial court found that though plaintiffs did not file within the notice of tort claim within the required ninety (90) days of the accrual date, they did demonstrate extraordinary circumstances which permitted a late filing.  Specifically, the trial court found that there was excusable neglect on the part of the plaintiffs due to the extraordinary circumstances present.  The court found that the plaintiffs had suffered life-altering events and resulting psychological traumas which continued well beyond the ninety (90) days to file following the April 8, 2021 fire.  Thus, the trial court granted the motion to permit the late filing of the tort claim notice to permit the plaintiffs to pursue the Newark Housing Authority in a lawsuit.

The Newark Housing Authority appealed that order, arguing that there were no extraordinary circumstances present.  The Housing Authority argued that plaintiffs were physically capable of contacting an attorney in a timely fashion and should have done so at the earliest opportunity, irrespective of their constructive or actual knowledge of the ninety (90) day window for filing the notice of tort claim.

Upon appeal, the Appellate Division noted that for a claimant to pursue a claim against a public entity for personal injuries, it must file a notice of tort claim not later than the nineth (90th) day after accrual of the cause of action, pursuant to N.J.S.A. 59:8-8.  The date of accrual of a cause of action in tort is typically the date of the incident.  The penalty for failing to file a timely notice of tort claim is that the claimant is forever barred from bringing their claim against the public entity. 

However, the Court noted that the Act provides an exception to plaintiffs where the ninety (90) day period has lapsed and allows prospective claimants to file a motion within one year from the accrual of the cause of action “where they demonstrate extraordinary circumstances” to justify filing a late notice of tort claim.  Pursuant to the statute, the claimant must also demonstrate that the public entity has not been substantially prejudiced by the late notice.

The Appellate Division found that the trial court judge exercised “appropriate discretion” in determining extraordinary circumstances existed in the present facts.  The Court disagreed with the defendant’s argument that extraordinary circumstances equated to physical incapacity.  The Appellate Division noted that there was nothing in the statute or case law that required a plaintiff be physically unable to contact an attorney.  Although physical incapability may be sufficient to prove extraordinary circumstances, it is not a necessary pre-condition for a finding of extraordinary circumstances.  The Appellate Division noted that the trial judges are afforded a wide latitude in determining extraordinary circumstances.

Thus, the Court agreed with the trial court findings that extraordinary circumstances were present based upon the facts of the case.  Therefore, the Appellate Division affirmed the trial court decision, permitting the claim to move forward, based upon the strong public policy in favor of resolving the application on the merits. 

Municipal Parking Authority Found to Be Immune From Tort Liability for Claim Resulting From Its Snow Removal Activities

Plaintiff Nancy Valdez was at a multi-story parking garage in Union City, owned by the Union City Parking Authority (UCPA), on December 11, 2017.  She was at the garage to renew her residential parking pass.  Due to a prior snowstorm, snow piled on an upper deck melted and re-froze on the downhill parking ramp.  As she walked on the parking ramp, she slipped and fell.  The issue in Valdez v. Union City Parking Authority, 2023 N.J. Super. Unpub. LEXIS 954 (App. Div. June 13, 2023) was whether the UCPA was immune from liability for injuries resulting from snow removal by a public entity.

The snowstorm, two days earlier, had left about four inches of snow on the ground.  UCPA employees removed the snow and, on the top floor, where the UCPA Administrative Offices were located, they piled it on the sloped deck uphill from the incident site. 

In the days following the storm, due to temperature fluctuations, melt/refreeze conditions occurred.  Because the top floor of the garage had no roof, the snow piled by the UCPA employees melted and the resulting water subsequently froze. 

On the day of the accident, Nancy was there to renew her residential parking pass.  She parked her car on the street and took an elevator to the top floor offices. 

She left the offices of the UCPA and walked along the top floor downhill parking ramp, attempting to exit the garage.  As she walked down the ramp, she slipped and fell on ice and suffered physical injuries.

Thereafter, she sued the Union City Parking Authority to recover for her injuries.  She claimed that the UCPA’s negligence resulted in a dangerous condition at the parking garage. 

After discovery concluded, UCPA filed for a summary judgment, arguing that plaintiff’s claims were barred by the common law immunity from liability for injuries resulting from snow removal by a public entity.  The trial court granted the UCPA’s motion, dismissing the complaint.

Plaintiff appealed to the Appellate Division and argued that the exception to the common law snow removal immunity established for public housing authorities in Bligen v. Jersey City Housing Authority should be applied to the facts in this case.  However, the Appellate Division rejected that argument.

The Court noted that the common law snow removal activities immunity survived the passage of the Tort Claims Act.  The rationale behind this immunity was that: “if liability were to be imposed on a public entity for injuries caused by its snow removal, it would be required to broom sweep the areas from which it removed snow.”  Further, the Court noted that the high cost of such an undertaking could make the expense of any extensive program of snow removal prohibitive.  Because “the public is greatly benefitted even by snow removal which does not attain the acme of perfection of “broom swept streets,” a public entity would not be held liable for injuries arising from its snow removal activities.”

The Bligen decision, dealt with a slip and fall at the Jersey City Housing Authority, when the plaintiff slipped on ice and fell as she stepped off curb into the parking lot of the complex.  In the Bligen case, the New Jersey Supreme Court declined to extend common law snow removal immunity to the Housing Authority.

However, the Appellate Division noted that the Bligen case was a narrow exception to the snow removal immunity. The rationale of the Supreme Court, in not applying the immunity in the Bligen case, was that municipal landlords should be responsible for the reasonably foreseeable consequences of their actions.

Here, the Bligen case did not apply because the Parking Authority was not found to be the equivalent of a public housing authority.  Absent a contrary holding by the Supreme Court, the Appellate Division declined to extend the holding in Bligen to claims raised against any entity other than a public housing authority.

Hence, the Appellate Division affirmed the trial court decision, dismissing the lawsuit against the Union City Parking Authority.

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. 

Failure to Provide Notice of Claim Form to Plaintiff’s Counsel Insufficient to Justify Filing a Late Notice of Tort Claim

On June 4, 2021, plaintiff Joshua Jackson slipped on an unidentified liquid on the stairs between the first and second floors of a building owned by Defendant City of Passaic Housing Authority.  Plaintiff alleges that he attempted to obtain a notice of claim form from the Authority but was unsuccessful. Less than one week before the ninety day Tort Claims Act deadline (to file a notice of claim) elapsed, plaintiff retained counsel who purportedly called the Authority and asked for a notice of claim form but was sent an incident report. The issue in Jackson v. City of Passaic Housing Authority, 2023 N.J. Super. Unpub. LEXIS 119 (App. Div. Jan. 27, 2023) was whether the plaintiff had shown sufficient reasons constituting extraordinary circumstances justifying his failure to timely file notice of his accident with the defendant Authority.

The facts appear to be somewhat disputed whether the plaintiff’s counsel called and asked for a notice of claim form or, rather, whether he simply asked for an incident report.  However, there was no dispute that the notice of tort claim was not filed until eight days past the ninety-day statutory deadline, as required under the Tort Claims Act.

The plaintiff filed a motion seeking leave from the trial court to file a late notice of claim.  The trial court denied this application, finding that N.J.S.A. 59:8-4 specifically enumerated what was supposed to be in the claims form.  Further, the court found that, even if the defendant Authority failed to provide plaintiff with a notice of claim form, that did not constitute extraordinary circumstances in the trial court’s view to justify missing the statutory deadline. (Accordingly, his claim was barred.)

Upon appeal, the Appellate Division noted that, pursuant to the Tort Claims Act, a public entity is not liable for an injury, except for as provided by the Act.  The Act provides that, prior to the filing of a formal complaint, a claimant must provide the public entity with a notice of claim no later than the ninetieth day after accrual of the cause of action.  That date would typically be the date the negligent conduct causing injury occurred.  Further, if a claimant fails to timely file a notice of claim with a public entity within this ninety-day time period, the claim is permanently barred.  The Court noted that the purpose of this deadline is to “compel a claimant to expose his intention and information early in the process in order to permit a public entity to undertake an investigation while witnesses are available and the facts are fresh.”

The Court further noted this ninety-day filing requirement is not completely inflexible and the claimant is permitted, in limited circumstances, to make a motion for leave to file a late notice of tort claim.  However, the motion must be “supported by Affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for the failure to file the motion, and the public entity must not be substantially prejudiced by the late notice.”  It is up to the trial court to determine whether extraordinary circumstances exist.

Here, the plaintiff argued that the trial court failed to consider all the facts and circumstances surrounding the late claim by failing to consider the notice was only eight days late, plaintiff timely retained counsel, and a lack of prejudice to the Authority.

The Appellate Division, however, rejected this argument and agreed with the trial court that plaintiff failed to demonstrate extraordinary circumstances to justify his failure to file the notice of claim within the ninety day window.  The Court found that plaintiff was represented by counsel prior to the expiration of the applicable time period. 

According to the facts presented, the delay in filing was due to lack of due diligence, which the New Jersey Supreme Court has held is insufficient to establish permissible filing of a late notice.  Further, the Court stated that there is no standard “form” that must be filed.

Plaintiff failed to present any evidence, nor cited to any case law, statute, or regulation to support his position that he should be permitted to file an untimely notice because he was only slightly late.  The Appellate Division noted that the Legislature’s waiver of sovereign immunity remains a limited one and they are not free to expand that waiver beyond its statutorily established boundaries.  Hence the Appellate Division affirmed the trial court’s decision, denying the plaintiff’s motion to file a late notice of tort claim.

Municipality Found Not Liable for Injury Caused by Trip Over Raised Boardwalk Board

Plaintiff Ercilia Rojas, while walking on the boardwalk in Atlantic City, tripped and fell over a raised board. As a result of her fall, she suffered a rotator cuff tear in her shoulder. She sued Atlantic City, among other defendants, alleging negligence for a dangerous condition on public property. The issue in Rojas v. AC Ocean Walk, LLC, 2022 N.J. Super. Unpub. LEXIS 2083 (App. Div. Nov. 10, 2022), was whether defendant Atlantic City had “constructive notice” of this tripping hazard and, thus, could be held responsible for Plaintiff’s fall.

Atlantic City was granted summary judgment by the trial court, which dismissed the complaint. However, the Plaintiff appealed, arguing that she had proffered sufficient facts to show that there was a dangerous condition on public property.

The Appellate Division noted that public entities are immune from tort liability under the Tort Claims Act unless the plaintiff is able to prove that a dangerous condition of public property caused the injury, that it created a reasonably foreseeable risk of the kind of injury incurred, that either the condition was caused by an employee or the entity knew of the condition, and that the entity’s conduct was palpably unreasonable.

Here, the City’s Department of Public Works supervising mason admitted in a deposition that the raised board created a tripping hazard. But, for the public entity to be liable for plaintiff’s injury, the plaintiff must be able to prove that the entity had either actual or constructive notice of the condition. If the allegation is constructive notice, the plaintiff must show “that the condition 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.”

The Plaintiff did not contend that the City had actual knowledge of the raised board. Instead, the Plaintiff argued that the City failed to exercise due care to discover the dangerous condition and, therefore, should be charged with constructive notice.

The Public Works supervising mason testified that he regularly inspected the City’s Boardwalk, dividing it into zones and each day inspected a half mile section to visually inspect the boardwalk by foot. The last time the portion of the boardwalk where plaintiff fell was visually inspection was 3 days before her fall. Plaintiff argued that, had the City exercised due care, it would have discovered the problem with the raised board.

The Appellate Division rejected Plaintiff’s argument. The Court stated that “Plaintiff is not entitled to the benefit of demonstrating constructive, as opposed to actual, notice of a dangerous condition by speculating that it existed ‘for such a period of time’ and was actually present when the City’s reasonable inspection program would have detected the problem.” Further, even if Plaintiff was able to prove constructive notice, the City had an organized inspection program that addressed dangerous conditions, including raised boards, on its boardwalk. The Appellate Division found that “[n]o reasonable factfinder could conclude that the City’s conduct was palpably unreasonable simply because the inspections did not take place” within the 3 days before the accident and “this raised board-among thousands of boards on the boardwalk-was not detected in advance of plaintiff’s accident.”

Hence, the Appellate Division affirmed the trial court decision, dismissing the complaint as to Atlantic City.

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DOT Contractor Entitled to Tort Claims Act Immunity as Defense in Personal Injury Action

Plaintiff Robert Koehler was injured while driving near an overpass on Route 3 in Rutherford, New Jersey when the boom of a bucket truck, which was in tow, struck the overpass, flew off, hit the roof of Plaintiff’s vehicle and entered the sunroof, causing his injury. The overpass was located in a construction zone. The issue in Koehler v. Smith, 2020 N.J. Super. Unpub. LEXIS 1855 (App. Div. Oct. 1, 2020) was whether the DOT’s general contractor, defendant Creamer Sanzari, was entitled to Tort Claims Act immunity for this accident.

The overpass was not marked with a low clearance sign before the accident and the plaintiff claimed that the defendant general contractor (“GC”) should be liable for his accident when the truck hit the overpass. The defendant, however, claimed that it was entitled to Tort Claims Act traffic sign immunity and design plan immunity.

On the trial court level, the defendant GC filed a motion for summary judgment, which was granted. While the trial court judge concluded that the defendant was not entitled to design plan immunity, he held that the defendant was entitled to traffic sign immunity and granted the defendant’s motion for summary judgment.

Upon appeal, the Appellate Division noted that the plaintiff’s expert admitted in deposition testimony that it was the design engineer’s responsibility to ascertain that the project’s plans and specifications were correct and that there was an issue whether the contractor was authorized to affix a low clearance sign to the bridge and that the requisite signs should have been addressed before the project began. The Court also stated that “[t]here was no dispute that the traffic control patterns were designed by the DOT and its engineers, and defendant carried out those patterns according to the plans and specifications.”

The contract setting forth the duties of traffic control as to the GC did not relate to permanent conditions such as the overhead height at issue and the lack of signage. The overhead height was not being altered as part of this project. The milling and paving being performed by the defendant underneath the bridge would not have changed the clearance.

The Appellate Division affirmed the trial court’s order granting summary judgment. The Court found that the defendant GC had no duty to affix signage at this overpass or to address the traffic flow at this location. Thus, the GC was entitled to summary judgment regardless of whether it enjoyed traffic sign immunity under the Tort Claims Act.

The Court also rejected the plaintiff’s argument that this situation was an “emergency” and found inapplicable the case law in which “a public entity may be held liable for its failure to provide emergency signals when the dangerous condition is temporary.” The Appellate Division agreed with the trial court judge that “the Ridge Road overpass’s lack of clearance signage is not the type of sudden and unanticipated situation that would impose liability on a public entity, and as such, the judge correctly determined defendant was entitled to traffic sign immunity.”

 

Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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School Board Found Not Liable for Injury that Occurred Due to Fall from Slope in Property

Plaintiff Patricia Eak stumbled while walking down a slope at Central Regional High School to watch her son play baseball on the junior varsity field. As a result, she fell and broke her ankle. In Eak v. Central Regional School District, 2019 N.J. Super. Unpub. LEXIS 685 (App. Div. March 26, 2019), the issue was whether the unimproved grassy slope of the field could constitute a dangerous condition under the Tort Claims Act.

Plaintiff arrived at the school, parked in an adjacent lot to the field, crossing the parking lot and a driveway. Next, she stepped over a curb, onto a grassy downward slope, and began walking toward the bleachers on the third-base side. As she walked down the slope, the plaintiff stumbled and broke her ankle.

The plaintiff filed suit against the school and the Board of Education for her injuries. At the trial court level, the defendants filed a motion for summary judgment, which was granted. This appeal ensued with the plaintiff claiming that it should have been a jury question whether the property was a “dangerous condition” under the Tort Claims Act. The Appellate Division agreed with the trial court and affirmed the order granting summary judgment.

The Court noted that the grassy area where plaintiff fell was an unimproved condition of the school’s property. As such, the immunity under N.J.S.A 59:4-8 would apply. Pursuant to that provision: “[n]either a public entity nor a public employee is liable for an injury caused by a condition of any unimproved public property….” Under Troth v. State, 117 N.J. 258, 269-70 (1989), the New Jersey Supreme Court held that public property is improved “when there has been substantial physical modification of the property from its natural state, and when the physical change creates hazards that did not previously exist and that require management by the public entity”.

While the playing fields and some of the surrounding areas had been improved through the addition of steps and walkways to the fields, the Court found that no similar changes to the grounds between the parking lot and the junior varsity field had been made. Making improvements elsewhere did not transform the unimproved area into an improved area.

Plaintiff was injured on a slope which was a natural part of the school’s landscape. Hence, the Appellate Division found that no liability attached to the defendants for this unimproved portion of its property.

The plaintiff also argued that the slope constituted a dangerous condition under N.J.S.A. 59:4-2.  To establish liability via this provision, the plaintiff must show that a public employee either created the dangerous condition or had actual or constructive notice of the condition in time to have taken measures to protect against the dangerous condition. Further, the plaintiff must show that any steps taken by the public entity to protect against the dangerous condition were palpably unreasonable.

While the plaintiff did provide an expert report, the expert did not opine that the condition of the property was dangerous, only that it could have been made safer. Further, while the expert made reference to standards for accessible design enacted pursuant to the ADA, claiming that the degree of incline was improper, the Court noted that the plaintiff did not claim to be disabled and the expert did not assert that the degree of the incline was dangerous.

The Appellate Division pointed out that it was being asked to consider unimproved, not improved property, and the “open and obvious” gentle slope leading to this ballfield was not dangerous. Even if there was some notice to the school district of the alleged dangerous propensity, “it cannot be said that defendants’ failure to do anything to change the contour of the property or install steps or railings was palpably unreasonable.”

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Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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