On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3262-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...