New Jersey Public Entity Law Monthly – Vol. II, Issue 6

By: Betsy G. Ramos, Esq.

In Lessa v. Township of Pemberton, an unpublished decision, just decided by the Appellate Division on June 19, 2013, the Township was found to be immune under the Tort Claims Act for an intersection accident caused by a sight obstruction due to hedges on the corner. The plaintiff, an 11 year old bicyclist, was struck by a motor vehicle at an uncontrolled intersection in the town.

The plaintiff claimed that the township should be liable for failing to address the emergent conditions existing at the intersection and in failing to address the dangerous condition caused by the hedges. Under the Tort Claims Act, a municipality can be liable for a dangerous condition on property it owned or controlled.

Although it was undisputed that the hedges were on private property, the plaintiff argued that the  Township “controlled” the hedges. Some time after the accident, the Township’s public works department trimmed the hedges.

The Appellate Division found, however, that the Township exercised its legitimate police power to enter into the property to trim the shrubs in light of the homeowner’s failure to do so. This action did not transform this private property into property “owned or controlled” by the Township. Other than trimming the bushes, there is no evidence that the Township ever used the property for public purposes.

The plaintiff also argued that the Township should be liable for its failure to place a traffic control device at that intersection due to the “emergent” condition existing there. The plaintiff contended that the Township had received complaints about that intersection and that it knew or should have known that the shrubs were an obstruction.

However, under the Tort Claims Act, while there is no immunity for a failure to provide for “emergency” situations, there is immunity for failure to post an “ordinary” traffic control device. Here, the Court found that the shrubs and the lack of a traffic control device were not extraordinary conditions, but were “rather commonplace in driving experience.” The Court noted that it would be readily apparent to a motorist exercising a reasonable degree of care that overgrown shrubs obscured your view and that one should be alert to the movement of others at this uncontrolled intersection.

Accordingly, the Appellate Division affirmed the trial court’s order granting the Township summary judgment.

This case could be useful in defending situations in which the public entity has made a subsequent repair to a private property. It may also be helpful in defending intersectional accidents where the claim is the failure to install a traffic control device.