By: Betsy G. Ramos
The Plaintiff Patricia Shilinsky “Shilinsky” went to visit her son at his home on Abbott Avenue in Ridgefield. She parked her car across the street from his home. As she jaywalked across the street, she tripped and fell on a depression in the middle of the roadway. In Shilinsky v. Borough of Ridgefield, 2016 N.J. Super. Unpub. LEXIS 949 (App. Div. Apr. 26, 2016), Shilinsky sued Ridgefield for her personal injury, claiming that the Township negligently failed to maintain and repair the roadway. The issue on appeal was whether the Township’s failure to repair the roadway was “palpably unreasonable.”
This depression ran almost the entire length of the block. The portion of the depression upon which plaintiff tripped was as least 28 inches long, at least 8 inches wide, and 3 inches deep. The plaintiff’s son testified that he had previously complained to the Township’s Department of Public Works about the unevenness of the roadway. Plaintiff also presented evidence that the depression had existed for 2 years before her fall and that is was likely seen by the Township’s DPW Superintendent before her fall.
The trial court granted the Township summary judgment based upon the Tort Claims Act defenses as to lack of notice and dangerous condition. The plaintiff appealed the dismissal of her suit to the Appellate Division.
Upon appeal, the Court noted that the injury occurred while the plaintiff was jaywalking across the middle of the block. The Appellate Division factored in this illegal jaywalking in determining whether the plaintiff had satisfied the elements of the Tort Claims Act so as to be able to pursue her claim.
In rendering its decision on appeal, the Court did not even reach the issue of notice or whether the depression constituted a dangerous condition. The Appellate Division found that Ridgefield’s inaction in repairing this roadway was not “palpably unreasonable,” as defined under the Tort Claims Act. The term “palpably unreasonable” means behavior “that is patently unacceptable under any given circumstances.”
The Court compared this situation to the facts in the Supreme Court case of Polzo v. County of Essex, 196 N.J. 569 (2008), in which the county was held not liable for a fatal accident that occurred when a bicyclist lost control of her bike while riding in a 2 foot wide depression on the shoulder of a county road. The Appellate Division found that a pedestrian illegally jaywalking across the roadway in the middle of the block was similar to the bicyclist’s use of the shoulder in Polzo. Both were using the roadway in a manner for which it was not designed.
The Supreme Court in Polzo emphasized that a roadway is ordinarily used for vehicular traffic and built and maintained for vehicles, not pedestrians. Potholes and depressions are a common feature of our roadways. Further, the Court in Polzo noted that not every defect in a highway is actionable.
Similarly, the Appellate Division found in Shilinsky that the Court’s analysis as to a bicyclist’s use of a shoulder, which was not designed or legal for such use, equally applicable to a pedestrian illegally jaywalking across the roadway in the middle of the block. The inherent dangers facing a jaywalking pedestrian in a roadway would not be faced by an operator of a motor vehicle who would pass harmlessly over a depression, which might cause a pedestrian to trip.
The Appellate Division found that the plaintiff failed to show that Ridgefield was palpably unreasonable because it did not allocate its limited resources to repair a depression in the middle of the street so that it would be safer for pedestrians to cross there. The Court noted that public entities do not have the resources to remove all roadway dangers peculiar to pedestrians.
Ridgefield presented evidence that its failure to fix this roadway was as a result of allocating limited resources to other high-need areas prior to the plaintiff’s fall. Plaintiff tried to argue that it would not have been that costly to simply fill in the depression with a half-ton of asphalt.
The Appellate Division held that the courts do not have the authority or expertise to dictate to public entities the ideal form of road inspect and repair program. It found that, ultimately, Ridgefield had the discretion to allocate its limited funds to projects that were of higher priority. Hence, the Court found that the plaintiff failed to meet her burden to establish that Ridgefield conduct was palpably unreasonable and upheld the summary judgment granted to the Township.
This case points out the viability of the palpably unreasonable defense when dealing with an injury caused by a condition of public property that was not repaired or maintained, despite the public entity’s prior knowledge of the condition. In defending such a claim, one should focus on how the public property was being utilized at the time of the accident, whether the public entity was aware of the alleged defect, and, if so, the rationale as to why it was not repaired. If the public entity can establish that the defect was not repaired due to limited resources that were allocated to more pressing needs, these facts can be used to establish a viable allocation of resources defense. When coupled with the palpably unreasonable defense, a public entity should have a very defensible claim.