DANIEL J. O'BRIEN v. NEW JERSEY TURNPIKE AUTHORITY (L-5157-18, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0549-20
DANIEL J. O'BRIEN,
Plaintiff-Appellant,
v.
NEW JERSEY TURNPIKE
AUTHORITY,
Defendant-Respondent.
_________________________
Submitted December 14, 2021 – Decided January 27, 2022
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-5157-18.
Alexandra Errico, attorney for appellant.
Chiesa, Shahinian & Giantomasi, PC, attorneys for
respondent (Christopher R. Paldino and Carla M.
Zavala, on the brief).
PER CURIAM
Plaintiff Daniel O'Brien appeals from an October 2, 2020 order granting
summary judgment to defendant the New Jersey Turnpike Authority (NJTA).
Plaintiff sued the NJTA and contended he sustained multiple injuries when he
lost control of his motorcycle after hitting a pothole on the New Jersey Turnpike.
The court granted the NJTA's application after concluding that the motion record
failed to create a genuine and material question of fact regarding the NJTA's
liability under the New Jersey Tort Claims Act (TCA), N.J.S.A 59:1-1 to -12-3.
We affirm.
I.
We derive the following facts from the competent evidence in the
summary judgment motion record, viewed in a light most favorable to plaintiff.
Brill v. Guardian Life Ins. of Am., 142 N.J. 520, 540 (1995). On July 25, 2016,
at or around 11:38 a.m., plaintiff was riding his motorcycle on the New Jersey
Turnpike. While approaching a toll plaza close to the Interchange Fourteen
Outside Entry Roadway, he hit a pothole near a storm drain causing him to lose
control of his motorcycle and slide approximately thirty-five feet. He was later
hospitalized with a number of broken ribs and a collapsed lung.
The New Jersey State Police promptly arrived on the scene and completed
a "crash investigation report" (police report) which included a statement from
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plaintiff that he "lost control of [his] motorcycle, [when he] hit a hole on the
roadway." The police report contained a diagram of the accident and the
following summary of the "[i]nvestigation of the scene" which provided in
relevant part that:
[plaintiff] was traveling on the New Jersey Turnpike
Interchange [Fourteen] Outside Entry Roadway. Prior
to making entry through the toll plaza, [plaintiff] struck
a hole in the middle of the roadway, subsequently
causing [him] to lose directional control of the
motorcycle and slide approximately 35 yards from the
initial impact on its right side.
Finally, the report identified a "dip in the roadway, near the drain," as an
apparent contributing circumstance of the accident.
At his deposition, plaintiff responded he was "not sure" when repeatedly
asked how the accident occurred and instead referred to the statements contained
in the police report. When pressed further by the NJTA's counsel, he claimed
not to remember the incident, but then clarified that he recalled "heading into
[the] toll plaza to pay the toll . . . when the bike just acted funny." When asked
if he "hit any potholes," plaintiff testified that he found out "afterwards" there
was a "hole in the road." Plaintiff could not recall how far he was from the toll
plaza at the time of the accident, the location of the toll plaza after the
motorcycle eventually stopped, or the distance from the pothole to the toll plaza.
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Plaintiff also testified that he did not "remember hitting the [pot]hole
when the bike started acting funny," and specifically stated that he did not know
if he "hit [the] defect in the road before the accident" because he was focused
on the toll booth. Plaintiff appeared to confirm that he had seen pictures of the
roadway defect, but stated he was unaware of who took the photographs. He
was unable to testify as to the depth of the pothole, and although he stated it was
located in the vicinity of a sewer grate, he could not provide further details as to
its location in relation to the grate.
Wayne Herring, a former NJTA Road Foreman, was also deposed.1 He
testified that he and an assistant examined roadways on a weekly basis and that
crews on the road would report "anything that needs attention." Herring also
stated that on the day of the accident, two workers from his department repaired
a pothole with a bag of cold patch. Finally, when shown photos produced by
plaintiff, Herring identified that the area depicted in the photographs was
1
As detailed, infra, at p. 5-6, the NJTA submitted portions of Herring's
deposition testimony in support of its summary judgment application. Plaintiff
did not include any additional sections of Herring's testimony when opposing
the motion, nor did he move for reconsideration of the October 2, 2020 order or
seek to supplement the record. We accordingly limit our review to the record
before us.
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Interchange Fourteen Outside Entry and that had he noticed the road defect
depicted during an inspection, his department would have repaired it.
NJTA repair logs for the day of plaintiff's accident indicated that the
NJTA received a report of a pothole at 12:20 p.m., and that workers filled it with
sixty pounds of cold patch at 12:50 p.m. The repair logs also provided that the
NJTA received no complaints of potholes in the area in the two weeks prior to
the accident, and potholes had been filled at Interchange Fourteen on June 22
and 23, 2016, about a month before the accident.
As noted, the NJTA filed a motion for summary judgment accompanied
by a fully compliant statement of undisputed material facts (SUMF) pursuant to
Rule 4:46-2. More specifically, the NJTA's SUMF included twenty-eight
separately numbered paragraphs that included statements supported by citations
to the record. That record included plaintiff's complaint, the police report, the
NJTA's repair logs, plaintiff's deposition transcript, excerpts from Herring's
deposition transcript, and the photos produced by plaintiff.
The SUMF largely recounted plaintiff's and Herring's testimony and the
information from the NJTA's repair logs. It also stated "[t]he NJTA had no
actual or constructive notice of the existence of the defect," "[n]o evidence has
been produced to show that the alleged pothole existed for such an extended
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period of time and was of such an obvious nature that the NJTA should have
discovered the condition and its dangerous character," and "[p]laintiff has
presented no evidence of any kind that the NJTA's actions or alleged failures to
protect against the dangerous condition were palpably unreasonable."
For reasons unexplained by the record, plaintiff failed to submit
opposition to the NJTA's SUMF as required by Rule 4:46-2(b). Instead, as best
we can discern from the record, he relied on the materials submitted by the
NJTA, including plaintiff's deposition testimony and the unauthenticated
photographs shown to Herring at his deposition.
On October 2, 2020, after hearing oral arguments, the motion judge issued
an order and written opinion granting the NJTA's motion. He first explained
plaintiff did not dispute the NJTA's SUMF under Rule 4:46-2(b) and such a
failure "constitute[d] an admission of all the material facts [the NJTA] included
in its [SUMF]." He reasoned that plaintiff's "potentially fatal misstep ,"
"work[ed] a grave harm to his opposition because it in essence concede[d] facts
that undermine[d], if not eviscerate[d], any argument that the elements of his
cause of action [were] present on [the] record." Despite finding that plaintiff's
failure to dispute the NJTA's SUMF "arguably end[ed] the need for extensive
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further analysis," the judge nevertheless addressed the substance of plaintiff's
opposition.
On the merits, the judge determined plaintiff failed to establish the
existence of a factual question that the alleged defect in the roadway constituted
a dangerous condition reasoning that "there is simply no quantifiable, objective
evidence describing or supporting the existence of the alleged defect." In so
concluding, he found that "[t]he only supposedly objective evidence are
photographs produced by plaintiff that were never authenticated," and as such
they were "not competent evidence of the location of [p]laintiff's accident, no
less the specific condition defect that allegedly caused his accident."
The judge further explained that plaintiff could not say where, when, or
by whom the photos were taken, could not "provide a meaningful description of
the supposed defect," and "did not see [the alleged defect] before his accident."
He stated that "other than what the plaintiff himself saw in the photographs, it
is clear from plaintiff's deposition that he never saw the supposed condition
which caused his accident."
The judge also addressed the evidentiary value of the police report,
concluding that it was not "competent evidence because it is hearsay when
offered by the plaintiff for the truth of the matter asserted." He explained that
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"[t]he State Trooper who drafted the report was not deposed" and that "the report
is not a first-hand account of what the State Trooper observed but more likely
was [what] he was told or surmised." The judge also noted "[t]he record lacks
any explanation of what he meant by 'dip in the roadway.'" As such, he found
that "[w]hile the report itself may be evidentiary, hearsay statements within it
are not." The judge therefore concluded, relying in part on Polzo v. County of
Essex, 209 N.J. 51 (2012), that "[p]laintiff's bare and unsupported allegation that
there was a 'hole' in the roadway, without more, is plainly insufficient to carry
his burden of proving a 'dangerous condition' under the TCA."
The judge next determined that plaintiff failed to establish that the alleged
defect proximately caused his accident. He reasoned that "[p]laintiff doesn 't
know if he in fact encountered the hole that is supposedly the dangerous
condition that caused his accident," based on his testimony that he did not
remember seeing or hitting a defect in the road.
The judge also concluded that the NJTA lacked actual or constructive
notice of the alleged defect. First, he found that repairs conducted in "the
general vicinity of plaintiff's accident" a month prior to the accident had no
bearing on the NJTA's constructive notice of roadway defects existing the time
of the accident. Second, the judge noted that Herring's testimony and the NJTA's
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repair logs "indicate[d] that NJTA did not receive any reports of a potho le on
Interchange [Fourteen] for the two weeks immediately preceding the accident."
Further, despite stating it was a "closer call," the judge found that the July
25, 2016 pothole repair did not constitute evidence of constructive notice
because of the "lack of any evidence at all that the pothole then repaired was the
one plaintiff encountered or the one in the cited photographs." He explained
that plaintiff did not "establish that it was the condition at issue and, even if it
was, that it 'existed for such a time and was of such a dangerous nature that the
public entity in exercising due care, should have discovered the condition and
its dangerous character.'"
Finally, the judge found that the NJTA's actions were not palpably
unreasonable. He first explained that "[a]lthough the question of palpably
unreasonable conduct is ordinarily one of fact, our courts will grant summary
judgment on this ground where the record is devoid of sufficient factual support
to allow the question to go before the jury." Finding that the NJTA was not on
notice of the accident and plaintiff failed to provide evidence such as prior
accidents or complaints, the judge determined that plaintiff "presented
insufficient evidence to establish that the NJTA's actions or failures to protect
against the dangerous condition were palpably unreasonable."
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This appeal followed in which plaintiff repeats many of the arguments he
made before the motion judge. Specifically, he first argues the judge erred in
determining plaintiff's failure to dispute the facts contained in the NJTA's SUMF
constituted an admission under Rule 4:46-2(b), claiming the judge failed to
evaluate whether the alleged facts were "sufficiently supported," and that his
opposition to the motion essentially disputed the NJTA's SUMF.
Second, he claims the judge erroneously determined the contents of the
police report were inadmissible hearsay and the photos alleged to depict the road
defect were unauthenticated. Finally, he argues the evidence in the record
created an issue of fact regarding each element required to establish liability
under N.J.S.A. 59:4-2.
II.
We "review[] de novo the . . . entry of summary judgment," Manahawkin
Convalescent v. O'Neill, 217 N.J. 99, 115 (2014), applying "the same standard
as the trial court," Conley v. Guerrero, 228 N.J. 339, 346 (2017). Summary
judgment is appropriate if the record demonstrates there is "no genuine issue as
to any material fact challenged and that the moving party is entitled to a
judgment or order as a matter of law." R. 4:46-2(c); Ben Elazar v. Macrietta
Cleaners, Inc., 230 N.J. 123, 135 (2017). When determining whether there is a
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genuine issue of material fact, we must consider "whether the competent
evidential materials presented, when viewed in the light most favorable to the
non-moving party, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill, 142 N.J. at 540.
If no genuine issue of material fact exists, the inquiry turns to "whether
the trial court correctly interpreted the law." DepoLink Ct. Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We
owe no deference to the trial court's legal analysis or conclusions. The Palisades
At Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 442
(2017).
"When . . . a trial court is 'confronted with an evidence determination
precedent to ruling on a summary judgment motion,' it 'squarely must address
the evidence decision first.'" Townsend v. Pierre, 221 N.J. 36, 53 (2015)
(quoting Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 384-85
(2010)). Our review of a trial court's disposition on a summary judgment motion
"proceeds in the same sequence, with the evidentiary issue resolved first,
followed by the summary judgment determination of the trial court." Ibid."[T]he decision to admit or exclude evidence is one firmly entrusted to the t rial
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court's discretion." Estate of Hanges, 202 N.J. at 383-84. Therefore, we review
a trial court's "[e]videntiary decisions . . . under [an] abuse of discretion
standard." Id. at 383 (applying a de novo review to the greater issue of the trial
court's decision on a motion for judgment only after applying the more
deferential abuse of discretion standard to an evidentiary ruling).
Public entity liability is restricted under the TCA. See Polzo, 209 N.J. at
55. Generally, a public entity is "immune from tort liability unless there is a
specific statutory provision imposing liability." Kahrar v. Borough of
Wallington, 171 N.J. 3, 10 (2012) (citing Collins v. Union Cty. Jail, 150 N.J.
407, 413 (1997)); see also N.J.S.A. 59:1-2, 2-1. Accordingly, "immunity for
public entities is the general rule and liability is the exception." Kemp by Wright
v. State, 147 N.J. 294, 299 (1997); accord D.D. v. Univ. of Med. & Dentistry of
N.J., 213 N.J. 130, 134 (2013) (describing that rule as the "guiding principle" of
the TCA (quoting Coyne v. State Dep't of Transp., 182 N.J. 481, 488 (2005)).
Under the TCA:
A public entity is liable for injury caused by a condition
of its property if the plaintiff establishes 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, and that either:
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a. a negligent or wrongful act or omission of an
employee of the public entity within the scope of his
employment created the dangerous condition; or
b. a public entity had actual or constructive notice of
the dangerous condition under section 59:4-3 a
sufficient time prior to the injury to have taken
measures to protect against the dangerous condition.
Nothing in this section shall be construed to 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 unreasonable.
[N.J.S.A. 59:4-2.]
Thus, in order to succeed on a claim against a public entity, a plaintiff
must prove: 1) the public property was in a dangerous condition; 2) "the
dangerous condition created a [substantial and] foreseeable risk of, and actually
caused, injury to plaintiff;" 3) the public entity knew of the dangerous condition;
and 4) the public entity's action to protect against the dangerous condition was
palpably unreasonable. Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003).
Plaintiff's obligation to demonstrate these elements is a "heavy burden." Foster
v. Newark Hous. Auth., 389 N.J. Super. 60, 65-66 (App. Div. 2006).
We have considered plaintiff's contentions in light of our de novo review
of the record and the applicable legal principles and conclude they are without
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merit. We agree that summary judgment was appropriate because plaintiff did
not establish that the pothole was a dangerous condition, and even assuming the
motion record created a factual question on that issue, there was no support for
plaintiff's contention that the NJTA had actual or constructive notice, or that its
actions were palpably unreasonable. In light of our decision, we do not address
the motion judge's conclusion that the motion record also failed to establish a
genuine and material question of fact as to proximate cause.
III.
We first address, and reject, plaintiff's contention that the judge erred
when he concluded plaintiff's failure to dispute the NJTA's SUMF constituted
an admission of the facts asserted by the NJTA.
Rule 4:46-2 clearly requires that a motion for summary judgment be
supported by a statement of material facts which "cit[es] to the portion of the
motion record establishing [each] fact or demonstrating that [each fact] i s
uncontroverted." R. 4:46-2(a). "[A] party opposing a motion for summary
judgment [must] 'file a responding statement either admitting or disputing each
of the facts in the movant's statement.'" Claypotch v. Heller, Inc., 360 N.J.
Super. 472, 488 (App. Div. 2003) (quoting R. 4:46-2(b)). "[A]ll material facts
in the movant's statement which are sufficiently supported will be deemed
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admitted for purposes of the motion only, unless specifically disputed by citation
conforming to the requirements of paragraph (a) demonstrating the existence of
a genuine issue as to the fact." R. 4:46-2(b).
Here, we conclude that the NJTA fully complied with Rule 4:46-2(a) when
it supported its summary judgment record with a fully compliant SUMF. At that
point, plaintiff's obligations as mandated by Rule 4:46-2(b) were simple and
clear — he was obligated to "file a responding statement either admitting or
disputing each of the facts in the movant's statement." In addition, plaintiff also
was obligated, as appropriate, to include in the responding statement "in
separately numbered paragraphs together with citations to the motion record ,"
"additional facts" that he contended were "material and as to which there exists
a genuine issue." Absent such compliance, the Rule permits trial courts to do
precisely what the motion judge did here — deem each sufficiently supported
statement admitted.
In light of plaintiff's burden to prove each element of his TCA claim, we
agree with the judge that his failure to dispute the SUMF was a "fatal misstep,"
because it "in essence concede[d] facts that undermine[d], if not eviscerate[d]
any argument that the elements of his cause of action [were] present on this
record." By way of example, the NJTA's SUMF included supported facts,
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namely Herring's deposition and the NJTA repair logs, to support its contention
that it was not on actual or constructive notice of the alleged defect and its
conduct was not palpably unreasonable.
Plaintiff also failed to include any additional materials that it contends the
judge should have considered, such as additional portions of Herring's
deposition. As such, we find no error in the judge's conclusion that plaintiff's
failure to properly oppose the NJTA's summary judgment motion was a
significant procedural error. In any event, for purposes of completeness, we
nevertheless address plaintiff's arguments on the merits, as did the motion judge,
and conclude they are without merit, albeit for slightly different reasons.
IV.
We agree, in part, with plaintiff's challenges to the judge's evidentiary
rulings. Specifically, plaintiff argues the contents of the police report were
admissible as exceptions to the rule against hearsay, N.J.R.E. 802, as a record
of a regularly conducted activity, N.J.R.E. 803(c)(6), 2 and a public record,
2
N.J.R.E. 803(c)(6), Records of Regularly Conducted Activities provides:
A statement contained in a writing or other record of
acts, events, conditions, and, subject to Rule 808,
opinions or diagnoses, made at or near the time of
observation by a person with actual knowledge or from
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N.J.R.E. 803(c)(8). 3 Second, he contends the photos of the alleged defect were
admissible because they were authenticated by "the totality of the evidence
before the court." We agree with plaintiff that certain of the statements in the
police report constituted admissible hearsay, but disagree that the judge erred in
excluding consideration of the photographs as evidential to the alleged
dangerous condition as they were not properly authenticated.
As to the police report, it is well settled that a police report is generally
"admissible as a record of a regularly conducted activity, commonly known as
a business record, N.J.R.E. 803(c)(6), and as a public record, N.J.R.E.
information supplied by such a person, if the writing or
other record was made in the regular course of business
and it was the regular practice of that business to make
such writing or other record.
3
N.J.R.E. 803(c)(8), Public Records, Reports, and Findings provides:
(A) a statement contained in a writing or other record
made by a public official of an act done by the official
or an act, condition, or event observed by the official if
it was within the scope of the official's duty either to
perform the act reported or to observe the act,
condition, or event reported and to make the written
statement; or
(B) statistical findings of a public official based upon a
report of or an investigation of acts, conditions, or
events, if it was within the scope of the official's duty
to make such statistical findings.
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803(c)(8)." Manata v. Pereira, 436 N.J. Super. 330, 345 (App. Div. 2014). Such
reports may be admissible to show, for example, a person spoke to an officer,
ibid., or that a report of a crime was made and the time of the report, State v.
Lungsford, 167 N.J. Super. 296, 310 (App. Div. 1979). If a proponent seeks to
admit the report to prove the truth of a declarant's statement contained in the
document, however, the declarant's statement is embedded hearsay and requires
a separate hearsay exception for that statement to be admissible evidence. See
N.J.R.E. 805; Manata, 436 N.J. Super. at 345; Konop v. Rosen, 425 N.J. Super.
391, 402-03 (App. Div. 2012).
Here, we conclude that it was erroneous for the judge to conclude that the
entire police report consisted inadmissible hearsay. Indeed, the report was the
result of the State Trooper's investigation and contained the State Trooper's
percipient observations including that there was a "dip in the roadway, near the
drain." See, e.g., Brown v. Mortimer, 100 N.J. Super. 395, 405-06 (App. Div.
1968) (finding a diagram of an automobile accident contained in a police report
admissible as a business record where the diagram was based on an officer's
observation of skid marks and the position of vehicles after the accident).
However, the judge's error in excluding the entire report from his summary
judgment calculus has no effect on our decision as the information in the report,
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at best, addressed the proximate cause issue. The report, individually, and in
context of the other competent evidence in the motion record, does not establish
the existence of a dangerous condition, that the NJTA had actual or constructive
notice, or that it acted in a palpably unreasonable manner.
We agree with the judge's decision, however, with respect to the
photographs shown to Herring at his deposition. As he correctly concluded, the
photographs that purported to depict the pothole were unauthenticated and,
therefore, inadmissible.
The admissibility of a photograph rests upon whether it fairly and
accurately depicts what it purports to represent. See N.J.R.E. 901. Any witness
with knowledge of the facts represented by the photograph may establish the
necessary foundation to authenticate a photograph. State v. Wilson, 135 N.J. 4,
14 (1994). Consistent with N.J.R.E. 901, the witness must establish first that
"the photograph is an accurate reproduction of what it purports to represent" and
second "that the reproduction is of the scene at the time of the incident in
question, or, in the alternative, the scene has not changed between the time of
the incident in question and the time of the taking of the photograph." Id. at 15.
Here, while Herring testified that the photos depicted Interchange
Fourteen, nothing in the record indicated that the photos were of the alleged
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defect in question at the time of the accident. Further, the record does not
establish when, by whom, or under what circumstances the photos were taken.
In fact, the motion record revealed that the NJTA repaired a pothole on
Interchange Fourteen approximately one hour after plaintiff's accident,
undermining any claim, without a proper foundation, that the photographs
accurately depicted the pothole at the time of plaintiff's accident.
V.
Finally, plaintiff argues that the record established genuine and material
factual issues regarding each element required to establish liability under the
TCA. We disagree that plaintiff established an issue of fact regarding whether
the road was in a dangerous condition, whether the NJTA was on notice of the
alleged dangerous condition, and whether the NJTA acted in a palpably
unreasonable manner. As such, and as noted, we need not reach the issue of
whether the alleged dangerous condition proximately caused plaintiff's injury.
A. Dangerous Condition
We agree with the judge that the motion record failed to create a genuine
dispute that the pothole constituted a dangerous condition. A "[d]angerous
condition" is a defined term and "means a condition of property that creates a
substantial risk of injury when such property is used with due care in a manner
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in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4 -1(a).
A "'substantial risk' . . . is not minor, trivial, or insignificant." Polyard v. Terry,
160 N.J. Super. 497, 509 (App. Div. 1978). In Polzo, our Supreme Court
explained that "not every defect in a highway, even if caused by negligent
maintenance, is actionable," 209 N.J. at 64 (quoting Polyard, 160 N.J. Super. at
508), and further noted that testimony that a "depression would have been
repaired if the [public entity] 'had knowledge of it' does not mean . . . that the
depression represented a dangerous condition of property within the meaning of
the TCA." Id. at 73-74.
As the judge correctly determined, neither the police report nor plaintiff's
or Herring's testimony provide any details about the size of the pothole or when
it was created. Nor do the photographs illuminate that issue because, as noted,
they are unauthenticated without the necessary foundation to establish when,
and under what circumstances, the photographs were taken. Finally, even the
statement in the police report that there was "a dip in the roadway" does not
establish that the "dip" constituted a dangerous condition.
B. Actual or Constructive Notice
Plaintiff's argument that the NJTA was on actual or constructive notice of
the pothole as a dangerous condition is equally unavailing. Specifically, he
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asserts that because the NJTA repaired potholes on Interchange Fourteen
approximately one month before plaintiff's accident and examined the road at
least once a week, a factual issue existed as to whether they "should have
discovered an obviously dangerous condition prior to the accident."
"A public entity shall be deemed to have actual notice of a dangerous
condition . . . if it had actual knowledge of the existence of the condition and
knew or should have known of its dangerous character." N.J.S.A. 59:4-3(a). "A
public entity shall be deemed to have constructive notice of a dangerous
condition . . . only if the plaintiff establishes that the condition had 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." N.J.S.A. 59:4-3(b).
"The mere '[e]xistence of an alleged dangerous condition is not
constructive notice of it.'" Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238,
243 (App. Div. 2013) (alteration in original) (quoting Sims v. City of Newark,
244 N.J. Super. 32, 42 (Law Div. 1990)). "Whether a public entity is on actual
or constructive notice of a dangerous condition is measured by the standards set
forth in N.J.S.A. 59:4-3(a) and (b), not by whether [for example] 'a routine
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inspection program' by the [public entity] . . . would have discovered the
condition." Polzo, 209 N.J. at 68.
First, the record contains no evidence that the NJTA was on actual notice
of the alleged defect. Second, as to constructive notice, we are satisfied that the
record and any reasonable inferences to be drawn therefrom failed to create a
genuine and material question of fact on that issue as well. Indeed, the record
is devoid of evidence of prior incidents related to the pothole that caused
plaintiff's accident, nor does the record establish, directly or inferentially, that
the NJTA was aware of any issue with respect to the pothole based on complaints
from third parties. Moreover, plaintiff failed to establish that the dangerous
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." See N.J.S.A. 59:4-3(b); Polzo, 209 N.J.
at 67-68 ("If failing to discover a dangerous defect in public property were the
equivalent of creating the defect, the Legislature would have had no need to
provide for liability based on actual or constructive notice.").
Further, and as aptly explained by the judge, the fact that the NJTA
repaired potholes in the general area of plaintiff's accident approximately one
month prior in no way suggests that they were on notice of a defect at the time
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of the accident. Rather, Herring's testimony and the NJTA repair logs indicated
that the NJTA received no complaints of potholes on Interchange Fourteen for
at least two weeks prior to plaintiff's accident. Finally, the fact that the NJTA
regularly examined the roadway in question does not establish constructive
notice when the record is devoid of any competent evidence of the size or age
of the alleged defect.
C. Palpable Unreasonableness
Finally, plaintiff's arguments that the NJTA acted in a palpably
unreasonable manner are also unpersuasive. Specifically, he claims "the
evidence submitted to the lower [c]ourt . . . created an issue of fact with regard
to whether the failure to repair the defect was palpably unreasonable." Second,
plaintiff contends that because the NJTA asserted a "resource allocation
immunity" affirmative defense under N.J.S.A. 59:2-3(d),4 it bore the burden of
4
N.J.S.A. 59:2-3(d) provides:
A public entity is not liable for the exercise of
discretion when, in the face of competing demands, it
determines whether and how to utilize or apply existing
resources, including those allocated for equipment,
facilities and personnel unless a court concludes that
the determination of the public entity was palpably
unreasonable. Nothing in this section shall exonerate a
public entity for negligence arising out of acts or
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proving its conduct was not palpably unreasonable, pursuant to Fox v.
Parsippany-Troy-Hills Twp., 199 N.J. Super. 82, 91 (App. Div. 1985).
The term "palpably unreasonable" implies "behavior that is patently
unacceptable under any given circumstance." Muhammad, 176 N.J. at 195; see
also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (to constitute
palpably unreasonable conduct, "it must be manifest and obvious that no prudent
person would approve of [the] course of action or inaction" (quoting Kolitch v.
Lindedahl, 100 N.J. 485, 493 (1985))). Further, palpably unreasonable conduct
"implies a more obvious and manifest breach of duty" than negligence and
"imposes a more onerous burden on the plaintiff." Williams v. Town of
Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979).
Whether a public entity's behavior was palpably unreasonable is generally
a question of fact for the jury. See Vincitore v. N.J. Sports & Exposition Auth.,
169 N.J. 119, 130 (2001). However, a determination of palpable
unreasonableness, "like any other fact question before a jury, is subject to the
court's assessment whether it can reasonably be made under the evidence
presented." Maslo v. City of Jersey City, 346 N.J. Super. 346, 351 (App. Div.
omissions of its employees in carrying out their
ministerial functions.
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25
2002) (quoting Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452
(App. Div. 1993)). Accordingly, "the question of palpable unreasonableness
may be decided by the court as a matter of law in appropriate cases." Id. at 350
(citing Garrison v. Twp. of Middletown, 154 N.J. 282, 311 (1998)).
Here, the record is barren of proof directly or circumstantially supporting
the claim that the NJTA acted in a palpably unreasonable manner regarding the
discovery or repair of this particular pothole or dangerous condition, the
procedure in which the NJTA investigated such incidents, or how it responded
to plaintiff's accident. Nor did plaintiff's proofs contain evidence suggesting a
history of accidents or complaints. See Carroll v. New Jersey Transit, 366 N.J.
Super. 380, 390-91 (App. Div. 2004) (holding "plaintiff's claims of palpable
unreasonableness presented no jury question" where "the record [was] devoid of
any evidence of a history of similar incidents or complaints, or a demonstrable
pattern of conduct or practice").
Plaintiff's claim that the burden of palpably unreasonableness should have
been placed on the NJTA due to its assertion of a resource allocation immunity
defense is also unavailing. First, it does not appear that plaintiff raised this
argument below, as it was not discussed at oral argument or in the judge's written
decision, in which he described plaintiff's argument as merely "falling back on
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26
a generalized dispute of fact argument" and we could therefore decline to
address the argument. See State v. Robinson, 200 N.J. 1, 18-20 (2009).
In any event, we find plaintiff's reliance on Fox unpersuasive. In Fox, the
court concluded "that the burden of proof [regarding palpably unreasonable
conduct should] be placed on the public entity only where the resource allocation
immunity afforded by N.J.S.A. 59:2–3(d) is raised as an affirmative defense."
199 N.J. Super. at 91.
We find Fox unavailing here for three reasons. First, the judge did not
rely on the NJTA's resource allocation defense in granting summary judgment.
Second, we rejected the Fox approach in Lopez v. City of Elizabeth, 245 N.J.
Super. 153, 161-63 (App. Div. 1991), where we held that when a public entity
asserts a resource allocation immunity defense "plaintiff retains the burden of
proving that defendant's conduct was palpably unreasonable." Finally, even if
the burden of proof should have been placed on the NJTA, we are satisfied that
they carried that burden.
Considering our decision that plaintiff failed to establish the existence of
a dangerous condition, that the NJTA had either actual or constructive notice of
the alleged dangerous condition, or that its actions were palpably unreasonable,
we need not reach the judge's determination that plaintiff's proofs also failed to
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27
create a genuine and material question of fact that the alleged dangerous
condition was the proximate cause of plaintiff's accident.
Finally, to the extent we have not addressed any of the parties' remaining
arguments it is because we have determined that they are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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