Township’s Contract with County to Clear Snow from County Roadway Does Not Create Liability

By: Betsy G. Ramos, Esq.

Owning or controlling the public property upon which a plaintiff claims caused injury is an essential element to establish liability of a public entity under the Tort Claims Act for a personal injury claim. In a District Court of New Jersey case, Marenbach v. City of Margate, 942 F. Supp. 2d 488 (D.N.J. 2013), the court held that although Atlantic County paid Margate to remove snow from a county roadway, that did not equate to “control” of the roadway under the circumstances.

In Marenbach, the plaintiff tripped and fell in the street on Ventnor Avenue in Atlantic City. He claimed severe and permanent injury to his left ankle. The plaintiff claimed that the street was in a dangerous condition. He sued the City of Margate, claiming that Margate controlled Ventnor Avenue and was liable for failing to protect him from a dangerous condition.

Ventnor Avenue was a roadway owned by Atlantic County. The plaintiff claimed that Margate had possessory control over the roadway because (1) Atlantic County paid Margate to remove snow and clean Ventnor Avenue; (2) Margate police officers patrolled the street and enforced parking and moving violations on Ventnor Avenue and Margate split the fees from those activities with the County. The court rejected both of these arguments and granted summary judgment to Margate.

The court found that neither of these activities were sufficient to establish that Margate had “control” over the roadway. Prior case law squarely rejected plaintiff’s argument that protective police patrol over the roadway demonstrated control by the city of the county road.

Additionally, the court found that the payment by the County to Margate to remove snow and perform weekly cleaning services on Ventnor Avenue was also insufficient to establish control. The court pointed out that, although the process of snow removal and street cleaning may contribute to a deteriorated street, there was no evidence that Margate regularly inspected the condition of the street or that it was responsible for repairing the condition of the road that may have been affected by its snow removal and cleaning activities.

Further, the court stated that under N.J.S.A. 27:16-6, the County had the exclusive responsibility to keep its county roadways in repair. Last, the court noted that, just as a privately owned company that was under contract with Atlantic County to maintain Ventnor Avenue would not obtain a possessory control in the roadway to make it a concurrent owner, the same would most likely be true for another public entity.

Although this case is a federal case, it could be useful as persuasive case law in a state court Tort Claims Act matter. In many situations, a township does provide services to its county in maintaining roadways. Depending on the circumstances, this case can be used to argue that providing such services does not create liability for the township in a personal injury action filed as a result of the condition of the roadway.