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.