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Donald T. Polzo, As Executor For the Estate of Mathi Kahn-Polzo, and v. County of Essex

January 18, 2012

DONALD T. POLZO, AS EXECUTOR FOR THE ESTATE OF MATHI KAHN-POLZO, AND DONALD T. POLZO, INDIVIDUALLY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
COUNTY OF ESSEX, DEFENDANT-APPELLANT AND CROSS-RESPONDENT, AND TOWNSHIP OF MILLBURN, STATE OF NEW JERSEY, AND PUBLIC SERVICE ELECTRIC AND GAS, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Albin

SYLLABUS

(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).

Donald T. Polzo v. County of Essex

(A-74/75-10) (066910)

Argued September 26, 2011 -- Decided January 18, 2012

ALBIN, J., writing for a unanimous Court.

Mathi Kahn-Polzo and other experienced bicyclists were riding downhill on the shoulder of Parsonage Hill Road, which is owned and maintained by Essex County. She rode over a depression on the shoulder, lost control and fell, suffered a catastrophic head injury despite wearing a helmet, and died twenty-six days later. The issue is whether the County can be held liable under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.

This case involves a road-surface defect known as a depression. According to the County's Assistant Supervisor of Roads, a pothole is an inch-and-a-half or deeper with the pavement broken out; a depression is a "dip" with no break in the roadway surface. He indicated that shallower depressions would not be repaired because the asphalt would not stick; a deeper pothole on a roadway's shoulder would be repaired if the County knew about it, but the same size depression would not necessarily be fixed; and repairs outside regular travel lanes, such as the shoulder, typically are made only if the pavement is breaking into a travel lane. He explained that the County made repairs when complaints were received. The County also inspected roads that had not been repaved in years or had a history of problems. The County had no other systematic program to inspect roadways for surface defects. Parsonage Hill Road was repaved five to seven years before the accident and inspected five weeks before the accident following a pothole complaint. It is unknown whether the employee who made that inspection saw the depression in issue. The Assistant Supervisor estimated the depression was an inch-and-a quarter in depth. Plaintiff's expert concluded that the depression was a dangerous condition that caused Kahn-Polzo's accident and fatal injuries; the depression existed for months or years and should have been noticed by those responsible for the road's maintenance; the accident and injuries were a foreseeable consequence; and the County's failure to have a proper system to identify and repair surface defects was directly linked to the depression and the accident. The County's experts opined that it was impossible to determine the cause of the accident; the depression presented no serious hazard to a bicyclist traveling at a reasonable speed; bicyclists must be prepared to encounter many obstructions on a roadway, including potholes; and bicyclists assume some responsibility when traveling on public roadways, which are not designed as bike paths. On that record, the trial court granted summary judgment in favor of Essex County and dismissed plaintiff's lawsuit; the Appellate Division reversed; and the Supreme Court reversed and remanded to the trial court to further develop the record. Polzo v. County of Essex, 196 N.J. 569 (2008).

On remand, plaintiff's expert opined that the depression was about one-and-one-half inches deep and was caused by an erosion of the subsurface under the road. In a deposition, the County's expert stated that the depression was not "open and obvious" and its cause could not be determined without an excavation. The trial court again dismissed plaintiff's lawsuit, finding that the County did not have actual or constructive notice of a dangerous condition of the roadway's shoulder and, alternatively, that the County did not act in "a palpably unreasonable" manner by failing to repair the depression. The Appellate Division reversed, concluding that a jury could determine that the County affirmatively caused a dangerous condition by not having a proactive program to inspect roadways for the type of defect that presumably caused the accident. The Court granted the County's petition for certification and plaintiff's cross-petition. 205 N.J. 100 (2011).

HELD: Viewing the record in the light most favorable to plaintiff, it cannot be concluded that the County was on constructive notice of a "dangerous condition" on the shoulder of its roadway that "created a reasonably foreseeable risk" of death, or that the failure to correct the depression before the accident was "palpably unreasonable."

1. A public entity is immune from tort liability unless a specific provision of the TCA provides otherwise. The Court accepts that the depression on the shoulder of the roadway caused the accident. The issue is whether it was a "dangerous condition [that] created a reasonably foreseeable risk of the kind of injury which was incurred." Only if plaintiff can prove this element is the next step reached: whether the County created the dangerous condition or whether the County "had actual or constructive notice" of it within "a sufficient time" before the accident that the County could "have taken measures to protect against [it]." N.J.S.A. 59:4-2. If so, the County still will not be liable unless its failure to protect against the dangerous condition was "palpably unreasonable." (pp. 15-18)

2. The County could not be found to have "created" a dangerous condition by having no routine inspection program in place to discover road surface defects. If failing to discover a dangerous defect were the same as creating one, the Legislature would have had no need to provide for liability based on actual or constructive notice. Moreover, the County did have a program for detecting and repairing road surface defects, even if it was less than ideal. Just five weeks before the accident, the County inspected all 2.6 miles of Parsonage Hill Road and filled potholes in the process. The Court cannot find that the absence of a more systematic program violates the Tort Claims Act, particularly when plaintiff has not provided any recognized standard of care that demands otherwise. (pp. 18-23)

3. In deciding whether the County was on notice of a dangerous condition on the roadway's shoulder, the Court considers basic principles of law governing roadways. The Motor Vehicle Code provides that a "roadway" is the portion of highway generally used for vehicular travel; the "shoulder" borders the roadway and is for emergency use; and "vehicles" are not bicycles. Bicyclists are directed to ride as near to the right side of the roadway as practicable. While they may be inclined to ride on the shoulder, they have no special privileges if they do. Bicyclists on roadways confront inherent dangers not faced by motor vehicle operators, such as destabilization by a stone or pothole. Public entities do not have the ability or resources to remove all dangers specific to bicycles. Under the TCA, a "dangerous condition" means a condition 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." N.J.S.A. 59:4-1. The issue is whether the County had actual or constructive notice of a dangerous condition on the shoulder that caused the accident. (pp. 24-28)

4. Even assuming that the depression was one-and-one-half inches deep when Parsonage Hill Road was inspected five weeks before the accident and that it would have been obvious to the naked eye, still it would not have been obvious to the reasonable observer that it presented a dangerous condition as defined in the TCA. Plaintiff's expert did not set forth any recognized standard for determining when a depression presents a dangerous condition on a roadway when it is used for its generally intended purpose. Plaintiff offered no evidence that the shoulder was routinely used as a bicycle lane, which might implicate a different standard of care. The generally intended purpose of the shoulder is for emergency use. Plaintiff cannot show that the depression on the shoulder "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." See N.J.S.A. 59:4-3(b). (pp. 28-31)

5. Even if the County had notice that the depression was a dangerous condition, a reasonable jury could not find that the failure to repair it was "palpably unreasonable." N.J.S.A. 59:4-2. Essex County is responsible for an extensive network of roads. There were no prior complaints or reports of injuries from the depression on the shoulder of Parsonage Hill Road. A public entity might reasonably give lesser priority to the shoulder of a roadway, which is not intended for ordinary travel. In view of the County's considerable responsibility for road maintenance in a world of limited public resources, the depression here might not have been deemed a high priority. In sum, even when the issue is viewed favorably to plaintiff, the Court cannot conclude that the County acted in a palpably unreasonable manner by failing to "protect against" the depression before the tragic accident in this case. (pp. 31-36)

The judgment of the Appellate Division is REVERSED and the trial court's order granting summary judgment in favor of the County and dismissing plaintiff's complaint is REINSTATED.

CHIEF JUSTICE RABNER and JUSTICES LONG, HOENS, and PATTERSON join in JUSTICE ALBIN's opinion. JUSTICE LaVECCHIA and JUDGE WEFING (temporarily assigned) did not participate.

Argued September 26, 2011

JUSTICE ALBIN delivered the opinion of the Court.

We must determine whether a county can be held liable for a fatal accident that occurred when a person lost control of her bicycle while riding across a two-foot wide, one-and-one-half inch depression on the shoulder of a county roadway. Although potholes and depressions are a common sight on New Jersey's roads and highways, public-entity liability is restricted under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Liability attaches to a public entity only when a pothole or depression on a roadway constitutes a dangerous condition; the public entity either causes the condition or is on actual or constructive notice of it; and, if so, the public entity's failure to protect against the roadway defect is palpably unreasonable. See N.J.S.A. 59:4-2.

Here, the trial court granted summary judgment in favor of Essex County and dismissed plaintiff's wrongful-death and survival-action lawsuit, finding that the County did not have actual or constructive notice of a dangerous condition of the roadway's shoulder and, alternatively, that the County did not act in "a palpably unreasonable" manner by failing to repair the depression. The Appellate Division reversed, concluding that a jury could determine that the County affirmatively caused a dangerous condition of property by not having in place a proactive program to inspect its roadway for the type of defect that was presumably responsible for the fatal accident in this case.

We now hold that the Appellate Division erred in suggesting that public entities may have to employ the equivalent of roving pothole patrols to fulfill their duty of care in maintaining roadways free of dangerous defects. In this case, just five weeks before the accident, while filling some potholes, the County surveyed the entire length of the subject roadway. Even when viewed in the light most favorable to plaintiff, we cannot conclude that the County was on constructive notice of a "dangerous condition" on the shoulder of its roadway that "created a reasonably foreseeable risk" of death, or that the County's failure to correct this depression before the tragic accident was "palpably unreasonable." See N.J.S.A. 59:4-2.

We therefore reinstate the grant of summary judgment in favor of the County and dismiss the complaint.

I.

A.

On August 18, 2001, at approximately 12:20 p.m., a group of five experienced bicyclists was riding downhill on the westbound shoulder of Parsonage Hill Road in the Township of Millburn.*fn1

Mathi Kahn-Polzo, one of the five, was traveling behind the pack at a speed of approximately fifteen miles-per-hour when her bicycle traveled over a circular depression that was two feet in diameter reaching a depth of approximately one-and-one-half inches. She lost control of her bicycle and fell to the pavement, suffering a catastrophic head injury, despite wearing a helmet. She died twenty-six days later without ever regaining consciousness.

B.

In September 2002, plaintiff Donald T. Polzo, Mathi's husband, filed a wrongful-death and survival action against Essex County, Millburn Township, and the State of New Jersey, alleging that all three entities were responsible for a dangerous condition on a public roadway. Parsonage Hill Road is owned, controlled, and maintained by Essex County. Eventually, the State and Millburn Township were dismissed from the case, leaving Essex County as the only defendant.

This case has followed a tortuous procedural path to the present appeal. Twice the trial court applied the public-entity immunity provisions of the Tort Claims Act and dismissed plaintiff's action on summary judgment, and twice the Appellate Division reversed and reinstated the case. In the first round of appeals, this Court granted the County's petition for certification and then reversed the Appellate Division on the ground that plaintiff's case rested almost entirely on an expert's net opinion. We remanded to the trial court for plaintiff to further develop the record.

We now present the record before us.

C.

Significant to this case is an understanding of two types of defects that may impair the surface of a road -- potholes and depressions. According to the deposition testimony of Assistant Essex County Supervisor of Roads, Salvatore Macaluso, a pothole is "anything an inch-and-a-half or deeper where the pavement is actually broken out."*fn2 In contrast, a depression is a "dip" in the road without any break in the roadway surface. Macaluso indicated that a roadway hole less than an inch-and-a-half would not be repaired because "the asphalt is not going to adhere to it." Similarly, small depressions would not be repaired because the asphalt would not stick.*fn3

Macaluso stated that a pothole measuring an inch-and-one-half or greater in depth on the shoulder of a roadway would be repaired if the County "had knowledge" of it, but that a depression of the same size would not necessarily be repaired. Typically, the County would make repairs outside the designated travel lanes -- such as on the roadway's shoulder -- only when an "edge of [the] pavement [is] actually br[eaking] out into the travel lane" or the "stone or asphalt has washed away."

County roadway repairs were made when complaints were received from the police, town officials and residents, and motorists. Most of those complaints, apparently, were communicated by telephone. In addition, Macaluso inspected roads that either had not been repaved in years or had been the subject of pothole complaints or other pavement problems.*fn4 The County had no other systematic program for the inspection of its roadways for defects.

Parsonage Hill Road -- the roadway at issue -- had been repaved five to seven years before the accident. Just five weeks before the accident, on July 6, 2001, the County received a complaint of a pothole on that road. The County's records disclosed that one of its employees, T. Burton, repaired the targeted pothole and inspected the "entire length" of the 2.6-mile road, filling other potholes. Burton was not deposed by either party during the discovery period. Consequently, we do not know whether he, or another crewmember, checked the shoulder of Parsonage Hill Road for potholes or depressions. Nor do we know whether they observed the depression at issue or, if they did, what their eye-ball estimate of the depth of the depression was at that time.

Macaluso reviewed a police photograph of the depression on the roadway's shoulder that is claimed to be the cause of Kahn-Polzo's accident. He estimated that the depression was "an inch-and-a-quarter" in depth.*fn5 At his deposition, Macaluso averred that he would repair a depression that was more than an inch-and-a-half in depth. He even suggested that the road depression at issue would have been repaired if the County "had knowledge of it."

Plaintiff's cause of action rests largely on Dr. Kuperstein's three expert reports and his more recent deposition testimony. We initially deal with the first two reports because they were before the trial court when it entered summary judgment against plaintiff in the first procedural round. In his May 2004 report, Dr. Kuperstein came to the following conclusions: (1) Kahn-Polzo rode her bicycle into the depression on the shoulder of Parsonage Hill Road, fell, and suffered fatal injuries; (2) the depression was a "dangerous or hazardous condition" that "was a direct or proximate cause of the accident" and her ensuing injuries; (3) "the subject depression would not have been readily apparent to a bicyclist"; (4) the road depression "should[] have been noticed by those responsible for maintenance of Parsonage Hill Road" because it existed for a period of "months if not ...


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