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Elaine A. Connelly, An Individual, and Joseph Connelly, Her Spouse v. Agl Resources D/B/A Elizabethtown Gas


February 7, 2012


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3262-09.

Per curiam.


Submitted January 23, 2012

Before Judges Ashrafi and Fasciale.

In this personal injury lawsuit, plaintiffs appeal from an order granting summary judgment to defendant Borough of Metuchen dismissing the complaint pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3.*fn1 Genuine issues of material fact exist regarding whether Metuchen created or possessed either actual or constructive notice of an alleged dangerous condition. We reverse.

Plaintiff Elaine Connelly alleged that she sustained permanent injuries as a result of falling in a crosswalk on Elm Avenue at its intersection with Main Street. She stepped into a hole, covered by leaves, that was five inches in diameter and three inches deep. In his deposition, Charles Donald Krapf, Jr., a field supervisor for Elizabethtown Gas, testified that Metuchen assigned a police officer to direct traffic at the intersection because there was "a lot of traffic with the church and school there." Plaintiffs contended that the scene of the accident was a "busy intersection."

Plaintiffs retained Ronald Saxon, a forensic professional engineer, as their expert. Saxon inspected the roadway, reviewed various pretrial documents,*fn2 and learned that in 2005

Metuchen milled the road, repaved it, and covered over an open gas main box. A depression formed over the open box and the pavement collapsed, causing the hole. He opined that Metuchen failed to inspect the area adequately during the two years before the accident.

Plaintiffs alleged that Metuchen created the dangerous condition and had notice of it. They contended that had Metuchen requested that the gas company cover the hole before the street was repaved, the pavement would not have collapsed and created the hole. Metuchen admitted:

No formal inspections on any regular basis are done by [Metuchen]. However, all departments and entities within [Metuchen], for example, the Police Department, regularly make observations of Elm Avenue and, in the event that any issue needs to be addressed, then the Department of Public Works is notified and responds thereto.

Plaintiffs alleged that Metuchen, at a minimum, had constructive notice of the dangerous condition because a police officer was assigned to the busy intersection and "all departments and entities within [Metuchen]," made regular observations of Elm Street on which existed the hole that Saxon opined was "ancient."

Metuchen filed a motion for summary judgment and argued that it had no responsibility for the maintenance or condition of the area where plaintiff fell. Metuchen contended that plaintiffs failed to show it had notice of the condition or that its actions were palpably unreasonable. Plaintiffs opposed the motion and argued that Metuchen created the dangerous condition (N.J.S.A. 59:4-2a) or, alternatively, that Metuchen had notice of the hole with enough time and opportunity to correct it (N.J.S.A. 59:4-2b, -3b).

The judge conducted oral argument, granted Metuchen's motion, and stated:

[U]nder the [TCA], the plaintiff must . . . show that the public entity's behavior is palpably unreasonable[.]

In the present case, I'm not satisfied that the plaintiff has overcome the burden of demonstrating that a dangerous condition existed with actual [or] constructive notice as required under [N.J.S.A.]59:4-2.

From the evidence I have[,] Metuchen did not have actual, constructive notice of the pothole, and because plaintiff cannot demonstrate . . . [the] require[d] liability[,] I'm applying the standards for summary judgment, and granting Metuchen's application[.]

This appeal followed.

On appeal, plaintiffs argue that the judge erred by granting summary judgment to Metuchen because genuine issues of material fact exist regarding whether Metuchen (1) created the dangerous condition or (2) had actual or constructive notice of it. We agree.

Summary judgment is appropriate when no genuine issue of material fact exists. Rule 4:46-2(c). The "determination whether there exists a 'genuine issue' of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Thus, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Ibid. (citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

We review the disposition of a summary judgment motion de novo and apply the same standard as the trial court. LVNV Funding, L.L.C. v. Colvell, 421 N.J. Super. 1, 6 (App. Div. 2011) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). We first consider whether a genuine issue of material fact exists and then whether the trial court correctly applied the law. Henry v. N.J. Dep't of Human Serv., 204 N.J. 320, 330 (2010) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)).

The TCA governs actions against governmental entities and public employees. N.J.S.A. 59:4-2 addresses governmental liability for injuries caused by "dangerous condition[s]" on public property. See also Polzo v. Cnty. of Essex (Polzo II), ___ N.J. ___ (2012). Under the TCA, liability is the exception, not the rule. Id. at 578; Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 488 (2005).

A public entity will be held liable if a plaintiff establishes that (1) "the property was in dangerous condition at the time of the injury"; (2) the dangerous condition proximately caused plaintiff's injury; (3) the dangerous condition created a reasonably foreseeable risk of the type of injury that occurred; and (4) either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or b. a public entity had actual or constructive notice of the dangerous condition under [N.J.S.A.] 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. [N.J.S.A. 59:4-2.]

Even if all of these elements are satisfied, liability will only be imposed where "the action the entity took to protect against the condition or the failure to take such action was . . . palpably unreasonable." Ibid. "Palpable unreasonableness is a question of fact." Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 130 (2001).

N.J.S.A. 59:4-1 defines a "dangerous condition" as "a condition of property 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." The definition requires that the condition create a "substantial risk of injury." N.J.S.A. 59:4-1. A "substantial risk" is not minor, trivial, or insignificant. Polyard v. Terry, 160 N.J. Super. 497, 509 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979). Whether a dangerous condition exists is a question of fact. Vincitore, supra, 169 N.J. at 123-24.

Krapf testified that a mushroom cap was missing over a drip line. He explained that a drip line is used to suck moisture from the bottom of the main. He stated that "[t]here's a paper or a plastic box that comes up to the top of the road and the mushroom cap actually sits down inside that box[.]" He added that "the mushroom cap will lay on the road." Krapf testified that when a road is repaved, "the miller would actually pull [the mushroom caps] right out of the road."

At a minimum, a fact issue exists regarding whether Metuchen created the dangerous condition and acted palpably unreasonably by (1) pulling the mushroom cap off the road during the milling process, (2) failing to request that the utility company, Elizabethtown Gas, replace the mushroom cap before repaving, and (3) repaving over an open hole before Elizabethtown Gas replaced the missing mushroom cap.

Plaintiffs also present sufficient evidence to establish a fact issue regarding whether Metuchen had actual or constructive notice of the dangerous condition. Under the TCA, "[t]he existence of a dangerous condition is only one of the essential elements of the cause of action against the public entity. It is not the cause of action itself." Robinson v. City of Jersey City, 284 N.J. Super. 596, 599 (App. Div. 1995). A plaintiff asserting a claim against a public entity for failure to protect against a dangerous condition must establish that "[the public entity] had actual knowledge of the existence of the condition and knew or should have known of its dangerous condition."

N.J.S.A. 59:4-3(a). Alternatively, the plaintiff must establish 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." N.J.S.A. 59:4-3(b).

"[T]he mere '[e]xistence of an alleged dangerous condition is not constructive notice of it.'" Polzo v. Cnty. of Essex (Polzo I), 196 N.J. 569, 581 (2008) (second alteration in original) (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)). A plaintiff must establish "'the fundamental requirement of constructive notice under N.J.S.A. 59:4-3(b), namely that the condition could have existed for such a period of time that the public entity should have discovered it.'" Id. at 586 (quoting Carroll v. N.J. Transit, 366 N.J. Super. 380, 388 (App. Div. 2004)).

Here, Metuchen assigned a police officer to direct traffic at the intersection where the fall occurred. The Metuchen Police Department regularly observed Elm Avenue, and notified the Department of Public Works to address problems. Saxon opined that the "hole and depression had been ancient." Although Metuchen had no formal inspection program in place, as it was not required to have under Polzo II, here Metuchen voluntarily undertook regular observations and reporting of conditions on Elm Avenue, the scene of the fall. Cf. Polzo II, supra, ___ N.J. at ___ (holding that public entities need not "employ the equivalent of roving pothole patrols to fulfill their duty of care in maintaining roadways free of dangerous defects"). These facts create a legitimate inference of constructive notice giving Metuchen sufficient time to correct the defect. N.J.S.A. 59:4-2b; McGowan v. Borough of Eatontown, 151 N.J. Super. 440, 448 (App. Div. 1977); see also Milacci v. Mato Realty Co., 217 N.J. Super. 297, 302 (App. Div. 1987) (holding that the jury could infer constructive notice when conditions described as "accumulation of sand and dirt" on office floor indicated that condition existed for some time).

Reversed and remanded.

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