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Lytle v. City of Newark

Decided: January 30, 1979.

CHERYL SUTTON LYTLE, PLAINTIFF,
v.
CITY OF NEWARK, A MUNICIPAL CORPORATION, GERALDINE PONTOJO, FRED MAIER, BOARD OF CHOSEN FREEHOLDERS OF COUNTY OF ESSEX, JOHN DOE AND RICHARD ROE, DEFENDANTS



Marzulli, J.s.c.

Marzulli

[166 NJSuper Page 192] This action arises out of an automobile accident on December 16, 1974. Plaintiff was driving east on Second Avenue in Newark while defendant Pontoja was heading north on Clifton Avenue. The two cars collided at the intersection of Clifton and Second Avenue, which is controlled by traffic lights. These lights were not functioning. Plaintiff has brought this suit against the city, claiming that the malfunctions caused the accident.

The city has moved for a judgment of dismissal at the end of plaintiff's case. Since plaintiff seeks to impose liability upon a governmental entity, reference must be made to our Tort Claims Act to decide the motion. N.J.S.A. 59:4-2 provides:

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:

a. a neglect 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. 59:4-1 defines what is meant by a "dangerous condition":

"Dangerous condition" means a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

In order to survive this motion plaintiff must prove not only that a jury could reasonably infer that the broken lights created a "dangerous condition," but also that this dangerous condition could have proximately caused the accident. For the reasons expressed below, plaintiff has failed to meet her burden as to both of the above elements.

Assuming for the purpose of this motion that the traffic lights were in fact broken, I will turn first to the "dangerous condition" requirement in N.J.S.A. 59:4-1. The very wording of N.J.S.A. 59:4-1 makes it clear that the

burden of proof as to the existence of a dangerous condition is more stringent than the burden of proving negligence in an ordinary civil case. The recent case of Polyard v. Terry , 160 N.J. Super. 497 (1978), further supports this conclusion. In Polyard the Appellate Division reversed a jury verdict against the State, holding that there was insufficient evidence to warrant the submission to the jury the question whether a highway was in a "dangerous condition" within the meaning of the Tort Claims Act. The alleged dangerous condition in Polyard was a slight declivity followed by some exposed aggregate on a state highway. The court there reveals a restrictive interpretation of N.J.S.A. 59:4-1:

Obviously not every defect in a highway, even if caused by negligent maintenance, is actionable. N.J.S.A. 59:4-1 requires that the defect create "a substantial risk of injury" when the highway is used with due care "in the manner which it is reasonably foreseeable that it will be used." When a motion for involuntary dismissal is made it requires the trial judge to make a preliminary determination as to whether the alleged condition is in fact a dangerous one within the ...


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