On appeal from the Superior Court, Law Division, Union County.
Long, R.s. Cohen and Stern. The opinion of the court was delivered by R.s. Cohen, J.A.D.
[245 NJSuper Page 154] Plaintiff Maria Lopez was walking across the street in Elizabeth. As she approached the opposite curb, she fell and broke her arm as a consequence of stepping into a "pothole." She sued the City of Elizabeth. A trial witness for plaintiff said the pavement in the area was in poor condition for at least three years. The City's only trial witness, the Senior Public Works Inspector, had no idea how long the condition existed. His responsibilities included inspecting streets to ascertain if any repairs were needed, but he was unaware of the pavement
defects where plaintiff fell until she notified the City of her intention to sue.
The jury found both the City and plaintiff responsible for plaintiff's fall, the City to the extent of 75% and plaintiff to the extent of 25%, and fixed plaintiff's damages at $100,000. Judgment was therefore entered for plaintiff for $75,000 plus prejudgment interest. Defendant appealed, and we are required to reverse, because of error in the trial judge's instructions to the jury.
Plaintiff's thesis was that the pothole that caused her fall was a dangerous condition of public property, as that phrase is used in the Tort Claims Act. N.J.S.A. 59:4-2. In order to establish her cause of action, plaintiff was obliged to satisfy the jury that (1) the public property was in a dangerous condition at the time of the injury, (2) the condition proximately caused the injury, (3) the condition created a reasonably foreseeable risk of the kind of injury that occurred, (4) either the condition was wrongfully created by an employee of the entity or the entity had actual or constructive notice long enough to have taken measures to protect against it, and (5) the action or inaction of the public entity in protecting against the condition was palpably unreasonable. Brown v. Brown, 86 N.J. 565, 575, 432 A.2d 493 (1981). Each of the five elements of the cause of action must be proven by plaintiff, including the palpable unreasonableness of the public entity's protective action or inaction. Rochinsky v. Department of Transp., 110 N.J. 399, 413, 541 A.2d 1029 (1988); Thompson v. Newark Hous. Auth., 108 N.J. 525, 528, 531 A.2d 734 (1987).
Among the defenses raised by the City was its immunity for discretionary determinations using or applying existing public resources. N.J.S.A. 59:2-3d states, in relevant part:
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.*fn1
N.J.S.A. 59:3-2d provides a parallel immunity for public employees.
A public entity raising the defense of resource allocation under N.J.S.A. 59:2-3d has the burden of proving not only that competing demands existed, and that a discretionary determination was made allocating resources among them, Fox v. Township of Parsippany-Troy Hills, 199 N.J. Super. 82, 90, 488 A.2d 557 (App.Div.), certif. denied, 101 N.J. 287, 501 A.2d 949 (1985), but also that the allocation decision was a proximate cause of the condition. The trial judge in the present case ruled that the public entity also had the burden to persuade the jury that its determination how to use or apply resources was not palpably unreasonable.
Because of the latter ruling, the judge faced the prospect of charging that plaintiff had the burden to prove the City acted palpably unreasonably in order to make out a cause of action under N.J.S.A. 59:4-2, and then charging that the City had the burden to prove it did not act palpably unreasonably in order to make out its affirmative defense under N.J.S.A. 59:2-3d. That is a daunting prospect. The judge resolved it by deleting proof of palpable unreasonableness as an element of plaintiff's cause of action, and by treating it in his charge solely as an element of the defense of resource allocation, to be proved by the City. In this, the judge erred.
We first note a problem that was not called either to the judge's attention at trial or to our attention on this appeal. It is that the evidence did not warrant submission to the jury of the resource allocation defense. The defense requires the City
to show that it faced competing demands, and that it exercised its discretion to determine "whether and how to utilize or apply existing resources." N.J.S.A. 59:2-3d. That involves deliberation and judgment: examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Miree v. United States, 490 F. Supp. 768, 774 (N.D.Ga.1980), quoted with approval in Kolitch v. Lindedahl, 100 N.J. 485, 495, 497 A.2d 183 (1985).
The totality of defendant's evidence on the subject was this: Mr. Piccollella testified that he was the only inspector employed in the Department of Public Works, and that an incidental part of his duties, which focused on issuing permits for sidewalks, driveways and curb cuts, was to look for streets and sidewalks in need of repair as he traveled around the City, and to notify the appropriate repair people. He was asked:
Q. Okay. Mr. Piccollella, do you know the reason that there is only one Public Works Inspector for ...