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Polzo v. County of Essex

December 3, 2008

DONALD T. POLZO, AS EXECUTOR FOR THE ESTATE OF MATHI KAHN-POLZO, AND DONALD T. POLZO, INDIVIDUALLY, PLAINTIFF-RESPONDENT,
v.
COUNTY OF ESSEX, DEFENDANT-APPELLANT, AND PUBLIC SERVICE ELECTRIC AND GAS COMPANY, JOHN/JANE DOE 1-10 AND JOHN DOE CORP. 2-10, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court considers whether, under the Tort Claims Act (Act), N.J.S.A. 59:4-1 to 14-4, the proofs offered by the plaintiff sufficiently established his claim that the defendant County of Essex was on constructive notice of a dangerous condition on public property that caused his wife's death.

On August 18, 2001, Mathi Kahn-Polzo and four other individuals engaged in a group bicycle ride through Essex County. As the group rode on the shoulder of a county road in Millburn, Kahn-Polzo fell from her bicycle. She was rushed to the hospital and died twenty-six days later. Kahn-Polzo's husband, Donald T. Polzo, filed suit alleging that a depression or declivity in the shoulder of the roadway constituted a dangerous condition and that the accident was directly and proximately caused by the bicycle striking that depression or declivity.

The County moved for summary judgment, asserting that (1) it did not have actual or constructive notice of the allegedly dangerous condition on the shoulder of the road; (2) its actions or inactions were not palpably unreasonable; (3) the depression or declivity did not create a substantial risk of harm to foreseeable users; and (4) Mr. Polzo did not establish that his wife's injuries and death were proximately caused by the depression or declivity. Without actually deciding the question, the motion court assumed that the County was on actual or constructive notice of a dangerous condition. Then, relying on evidence that the County had a policy and practice of repairing depressions in the road once it was made aware of them, the court granted the County's motion after concluding that no evidence justified a finding of palpably unreasonable governmental behavior.

The Appellate Division reversed the motion court and reinstated the complaint. According to the panel, the evidence established that the depression in the roadway existed for such a period of time and was of such an obvious nature that it should have been discovered by the County. In so ruling, the panel relied in part on testimony by the County's assistant supervisor of roads that the County would have repaired the depression/declivity if it had been made aware of it. Primarily, however, the panel relied on an engineering report prepared by Mr. Polzo's expert, who concluded "with a reasonable degree of engineering certainty" that the bicycle entered the depression, causing the rider to fall, and that the depression "existed for a significant period of time" consisting of "months if not years, based on the recorded changes." The expert concluded also that the depression would have or should have been noticed by those responsible for the road's maintenance and should have been recognized as a dangerous condition that could foreseeably cause an accident such as the one at issue in this case. In addition to determining that the County was on constructive notice of the depression/declivity, the panel held that the jury must decide whether the County's conduct was palpably unreasonable.

The Supreme Court granted the County's petition for certification. 193 N.J. 221 (2007).

HELD: Due to the procedural circumstances of this case, it cannot be determined as a matter of law whether the County of Essex was on constructive notice of a dangerous condition on public property; therefore, the matter is remanded to the Law Division for further proceedings.

1. A public entity is not liable for injuries caused by a dangerous condition on public property unless the entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken corrective action. Notice of the dangerous condition is imputed to the public entity only if the plaintiff establishes that the condition existed for such a period of time and was of such an obvious nature that the entity, in the exercise of due care, should have discovered the condition and its dangerous character. However, even when it is established that a dangerous condition existed on public property and that the public entity was on notice of it, either actually or constructively, the entity will be immune from liability if the action that the entity took to protect against the condition or the failure to take such action was not palpably unreasonable. (P. 2).

2. The facts are clear that the County had examined and repaired potholes and depressions/declivities on the road on which Mr. Polzo's wife was injured, but had not identified or repaired this specific depression/declivity on the shoulder of the roadway. The Appellate Division erred, however, in concluding that the evidence presented by Mr. Polzo was sufficient to defeat the County's motion for summary judgment on the question of whether the County was on constructive notice of a dangerous condition. The evidence does not demonstrate whether the repairs made by the County were made in the roadway itself or on the shoulder, and the deposition testimony by the assistant supervisor of roads that the County would have repaired the depression/declivity if it had been notified does not address whether the County had constructive notice of the condition. Mere existence of an alleged dangerous condition is not constructive notice of it, and complaints concerning one geographical location cannot serve as notice of a dangerous condition at a different location. The only evidence presented by Mr. Polzo in support of constructive notice was the report of his engineering expert. However, the report does not explain the basis for the expert's conclusion that the depression/declivity "would have existed for a significant period of time," nor does it cite to or explain the relied-upon "recorded changes." In sum, the expert's opinion on whether the County had constructive notice of the depression/declivity appears to be a bald conclusion that fails to specify the factual bases or the logical or scientific rationale that must undergird it. Such an opinion cannot sustain a plaintiff's burden of establishing that a public entity was on constructive notice of a dangerous condition. (Pp. 10-19).

3. The Act makes clear that, even if the public entity's property constituted a dangerous condition; even if the dangerous condition proximately caused the injury alleged; even if it was reasonably foreseeable that the dangerous condition could cause the kind of injury at issue; and even if the public entity was on notice of that dangerous condition; no liability will be imposed if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable. These requirements are accretive; if one or more element is not satisfied, a claim against a public entity must fail. Here, the motion court vaulted over the constructive notice requirement and addressed only the question of whether the County's action or inaction was palpably unreasonable. The Appellate Division properly addressed the issue of whether the County was on constructive notice of a dangerous condition, but it relied primarily on an expert opinion that, on its face, appears to be insufficient. The Court vacates both determinations and remands the case to the Law Division. On remand, the court is to review the record as presented by the parties and, in its discretion, may require that it be supplemented. On that record, the motion court is to determine whether Mr. Polzo's proofs satisfy all of the elements required for a claim against a public entity for the alleged dangerous condition of public property. (Pp. 19-23).

The judgment of the Appellate Division is REVERSED, the order of the Law Division dismissing the complaint with prejudice is VACATED, and the cause is REMANDED to the Law Division for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE RIVERA-SOTO's opinion.

The opinion of the court was delivered by: Justice Rivera-soto

Argued September 9, 2008

This appeal requires that we revisit the intersection of the provisions of the Tort Claims Act, N.J.S.A. 59:4-1 to 14-4, that govern claims against governmental entities arising from an alleged dangerous condition on public property. Specifically, N.J.S.A. 59:4-2(b) provides in part that a public entity will not be liable for injuries arising from a dangerous condition on public property unless the "public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." N.J.S.A. 59:4-3(b) constructively imputes notice of the dangerous condition of public property to a public entity "only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." Finally, N.J.S.A. 59:4-2 provides that, even if it is shown that a dangerous condition existed on public property and the public entity was on notice of it, either actually or constructively, the public entity nevertheless will be immune from liability "if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable."

On summary judgment, the motion court skirted the question of whether the public entity was on actual or constructive notice of the dangerous condition alleged and, assuming that it was, concluded that inaction in the face of that knowledge was not palpably unreasonable. As a result, the motion court entered summary judgment in favor of the public entity. The Appellate Division reversed and reinstated the complaint. Relying almost exclusively on an expert's report, the panel concluded that a depression in the shoulder of a roadway -- the claimed cause of the accident sued on -- "'existed for such a period of time and was of such an obvious nature' that it should have been discovered by the [public entity]." It further determined that the issue on which the motion court entered judgment in favor of the public entity -- whether the public entity acted or failed to act in a "palpably unreasonable" manner -- was preserved for trial.

We address only the sufficiency of the plaintiff's proofs in respect of the question of whether constructive notice of a dangerous condition on public property can be imputed to the public entity. For the reasons that follow and because the record on appeal is insufficient to satisfy plaintiff's burden, we conclude that, due to the procedural circumstances presented, it cannot be determined whether, as a matter of law, the public entity was on constructive notice of a dangerous condition on public property. We therefore reverse the judgment of the Appellate Division and remand the cause to the Law Division for further proceedings.

I.

On Saturday, August 18, 2001, Mathi Kahn-Polzo together with four other riders engaged in a group bicycle ride through Essex County. At approximately 12:23 p.m., the group was headed in a westerly direction on Parsonage Hill Road in Millburn; they were riding on the shoulder of the road and Kahn-Polzo was trailing the group. The lead rider of that group, Gus Schlaier, heard Polzo exclaim "Oh, my God," followed by his name -- "Gus" -- and then a crash. Schlaier immediately stopped and turned. He saw Kahn-Polzo lying face down in the shoulder of the roadway. Schlaier called for his fellow riders to stop, and help was called. Kahn-Polzo was unconscious and was rushed to the hospital. She died twenty-six days later.

Plaintiff Donald T. Polzo, Kahn-Polzo's widower, filed suit as executor of his wife's estate as ...


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