On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Approved for Publication October 17, 1995.
Before Judges Dreier, A.m. Stein and Kestin. *fn1 The opinion of the court was delivered by A.m. Stein, J.A.D.
The opinion of the court was delivered by: Stein
The opinion of the court was delivered by A.M. STEIN, J.A.D.
We reverse the verdict of no cause for action entered in favor of defendant City of Jersey City and against plaintiff.
This is a personal injury action. The accident happened on March 11, 1989 at approximately 6:00 a.m. Plaintiff was injured when his vehicle skidded on a 355-foot patch of ice that had formed on U.S. Highway 1 and 9 (also known in this area as Tonnelle Avenue), a state highway running generally north to south in Jersey City. Water from a broken water pipe or hose on property located at 628 Tonnelle Avenue ran down a hill onto the roadway causing gradual accumulation of the ice patch.
The testimony is in dispute as to when the City had actual notice of the condition. Anthony Lombardi, the City's then Director and Superintendent of Water Distribution, testified at trial that he received an emergency call from the police and shortly thereafter went to the icy area. When he arrived, the road was already salted and a police car and a tow truck were present. It was still dark. At an earlier deposition, Lombardi had testified that he had received a call summoning him to Tonnelle Avenue sometime between midnight and 1:00 a.m. At both the deposition and the trial, he testified that he directed that a plumber be sent to 628 Tonnelle Avenue on the plumber's first assignment after beginning work at 8:00 a.m.
The trial Judge gave the following instruction to the jury:
Now, in this case, the plaintiff alleges that the City is responsible because of a dangerous condition which existed on public property. And as you know, the case involves an accident which occurred on public property, Tonnelle Avenue, but which is a state highway.
There is no question but that the road is a public property. But it is not owned by Jersey City, it's owned by the state. The plaintiff charges that the condition of the roadway on Tonnelle Avenue was a dangerous condition of public property and that the dangerous condition was a proximate cause of his injuries. A public entity is responsible for injuries proximately caused by a dangerous condition of its property.
The phrase "dangerous condition" has a particular meaning. In order for you to find that there was a dangerous condition of public property, you must be satisfied by a fair preponderance of the credible evidence that all of the following things were true at the time of plaintiff's injury:
First, that the condition was one that created a substantial risk of injury, a risk that was not minor, trivial or insignificant to a person using the public property with due care, that is, reasonable care for his own safety and in a manner that the public entity ought to have reasonably foreseen or expected people to use the property.
Second, that the condition was one that created a reasonably foreseeable risk of the kind of injury alleged by the plaintiff. It need not be of exact, the very same kind, but it must be an injury of the same class, order or type.
Third, that the condition was either, A, created by the negligent and wrongful act or omission of an employee or employees of the defendant City of Jersey City, within the scope of their employment, or, B, the defendant City had actual notice of the dangerous condition a sufficient time prior to the injury to have taken measures ...