On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Pressler and King. The opinion of the court was delivered by King, J.A.D.
Plaintiffs appeal from the trial judge's grant of defendant City of Trenton's motion to dismiss under R. 4:40-1 at the conclusion of the evidence. Plaintiff Jean Ann Mitchell had allegedly sustained injuries when she fell into a hole in a broken portion of street curbing at a crosswalk in Trenton. Her husband alleged derivative damages. The case was presented before a jury, as permitted by N.J.S.A. 59:9-1, as amended by L. 1975, c. 3, § 1.
Defendant Trenton cross-appeals from the trial judge's ruling in plaintiffs' favor on a motion to file a claim beyond 90 days under N.J.S.A. 59:8-9.
Plaintiffs presented proofs at trial before the jury which established that Mrs. Mitchell fell at the curb, within the lines of the crosswalk. Mrs. Mitchell said she approached the curb, lifted her foot to step up, and as her foot came down she discovered there was no curbing, but instead she "went into a hole" and fell. There was evidence suggesting that the curbing may have been broken for as long as ten months before the fall.
Plaintiffs proceeded on the theory that defendant had a duty to repair defective curbing at city crosswalks. The City had stipulated that it owned the fee on which this defective curbing was located. No proof was presented as to the cause of the defect, whether by defective design or construction, special use of adjacent premises, or normal wear and tear incident to public use or the elements.
At the conclusion of plaintiffs' case the City presented the testimony of Joseph Tuccillo, Director of Public Works, which was taken out of the jury's presence.
Tuccillo testified as follows. His department was responsible for the repair of city streets, but had never undertaken to repair curbing, largely because no money had ever been allocated for that purpose. The City's total annual budget for all street repair was $300,000. $40,000 of this sum was allocated for pothole repairs and asphalt patching. The budget had always been insufficient to repair all of the roadbed defects, and thus there was never any surplus for other projects, such as curbing. There were 298 miles of curbing in Trenton, half of it in disrepair. At the current cost of $6 a foot Tuccillo said there was no way the city could afford these repairs. The city had in the past hired private contractors to repair curbing when it undertook to reconstruct streets. In recent years street reconstruction had not been done because of the cost. When streets were reconstructed in the past, the cost of curbing was assessed to adjacent property owners.
The court granted the motion to dismiss because (1) there was no proof that the defect in the curb resulted from any defective construction, design or repair, or any other wrongful activity, of either the city or any predecessor in title, and (2) the city could not be held liable for the exercise of any discretionary decision not to fix the deteriorated curbs because of the immunity afforded by N.J.S.A. 59:2-3(d). We agree with the trial judge on both points.
Assuming the city could be liable as an owner in fee of the ground underlying the curbing to the same extent as an abutting owner, there was no proof of any wrongful conduct by the city, or any predecessor in title, to which the defect could be attributed. Without proof of negligent construction, design or repair, or some abusive use, neither the abutting owner, nor the city, would be responsible. Yanhko v. Fane , 70 N.J. 528, 532-533 (1976). Newman v. Ocean Tp. , 127 N.J.L. 287 (E. & A. 1941).
Plaintiffs' claims for damages under N.J.S.A. 59:4-2 as a result of a dangerous condition of public property are subject, not only to immunity defenses provided by our Tort Claims Act, but also to any defenses available to a private person at common law. N.J.S.A. 59:2-1(b); Malloy v. State , 76 N.J. 515, 519 (1978). The trial court judge dismissed at the ...