On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Michels, Petrella and Baime. The opinion of the Court was delivered by Michels, P.J.A.D.
Plaintiffs Gary F. Fox and Geraldine V. Fox appeal from an order of the Law Division entered in favor of defendant Township of Parsippany-Troy Hills (Township) that denied their motion for a new trial. This appeal concerns the burden of proof with respect to the question of "palpably unreasonable" conduct of a public entity under the provisions of N.J.S.A. 59:4-2 of the New Jersey Tort Claims Act.
Plaintiff Gary F. Fox instituted this action against the Township, among other defendants, seeking to recover damages for personal injuries sustained as a result of a motorcycle accident which occurred on a Township road. He charged that the Township was negligent in maintaining the roadway and knowingly permitting a dangerous condition to exist. His wife sued per quod.
Plaintiff, an off-duty Morris County police officer, was operating his motorcycle along a Township road. According to his testimony, he was travelling at approximately 25 miles an hour when it appeared that the on-coming traffic was travelling very close to the center line of the roadway. He moved his motorcycle towards the center lane of his portion of the roadway and observed a pothole and debris in the center of that lane. He swerved his motorcycle to avoid hitting the pothole and debris, which he described as being the size of a fist. The motorcycle went out of control, veering to the right. He attempted to gain control of the motorcycle by putting his left foot on the roadway to keep his balance and tried to brake the motorcycle with his right foot. However, he hit a very large and deep trench at the end of the roadway at or near property owned by defendant D & H Enterprises. The front wheel of the motorcycle hit the trench bringing it to a dead stop. The back end of the motorcycle was jolted upward, and plaintiff was thrown to the pavement.
Plaintiff testified that he observed debris in the roadway in the area of the accident, consisting of large chunks of gravel and torn-up asphalt. At the point where the accident occurred D & H Enterprises was building a warehouse. D & H Enterprises' site plan approval was conditioned upon its widening the roadway so that traffic would have egress and ingress from the driveway of its property. The curbing had been completed and the first layer of concrete for the widened lane had been poured. However, at the time the accident occurred, the final layer of concrete had not yet been poured. In addition, there was a drainage problem at the construction site, and at various times prior to completion of the first stage of the project water and debris had been deposited on the roadway in the area of the D & H Enterprises property.
Plaintiffs' expert testified that the pavement was defective and that it contained potholes and excessive amounts of debris. He also found that the shoulder of the roadway was unraveled and deteriorated and the surface of the pavement was irregular.
The expert was of the opinion generally that the widening of the roadway in the area where the accident occurred was not done properly. Specifically, he was of the opinion that, among other things, curbing should have been placed on the unraveled base at the shoulder of the roadway and that "the shoulder should have been repaired and resurfaced to allow a smooth transition of road, and the roadway needed work." He also opined that signs or barricades should have been erected to notify the travelling public that work was going to be done and to keep out of the area. The Township's superintendent of streets and roads, on the other hand, testified that there was no record of any complaints about potholes or bad edges in the area of the accident and that his inspections had failed to reveal any such condition.
At the conclusion of the proofs, the trial court instructed the jury that plaintiffs had the burden of proving each essential element of the cause of action, including whether the Township's conduct was palpably unreasonable. The jury, in response to specific interrogatories, found that (1) the accident occurred in the area of the roadway at or near the driveway of the D & H Enterprises property, (2) the condition of the roadway constituted a dangerous condition, (3) the Township had either actual or constructive notice of the condition, (4) the condition of the roadway was a substantial contributing cause of the accident, but (5) the Township's action or inaction in response to the condition was not palpably unreasonable. The trial court thereupon molded a verdict of no cause for action and entered judgment in favor of the Township. Plaintiffs moved for a new trial, contending solely that the trial court erred by placing upon them the burden of proof with respect to the issue of the alleged "palpable unreasonableness" of the Township's conduct. The trial court disagreed and denied the motion. This appeal follows.
Plaintiffs now contend that not only did the trial court err by placing upon them the burden of proving that the Township's conduct was "palpably ...