NATASHA E. AND ROBERT HERBST, JR., Plaintiffs-Appellants,
TOWNSHIP OF EAST BRUNSWICK, TOWNSHIP OF EAST BRUNSWICK WATER UTILITY, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 19, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6219-10.
Joseph J. Michalowski argued the cause for appellants (Chase Kurshan Herzfeld & Rubin, LLC attorneys; Mr. Michalowski, on the brief).
Jason R. Hawrylak argued the cause for respondents (Wisniewski & Associates, LLC
Attorneys; Mr. Hawrylak on the brief; John S. Wisniewski, on the brief).
Before Harris and Hoffman, Judges.
This is a trip and fall personal injury negligence action under the New Jersey Tort Claims Act (Act). Plaintiffs Natasha Herbst (Natasha) and Robert Herbst, Jr. (Robert) appeal from a judgment of no cause of action entered after a jury returned its verdict that plaintiffs had failed to prove that the potholewhich caused Natasha's fall was a dangerous condition under the Act. Plaintiffs claim error by the trial court for allowing defense counsel to argue a defense that did not apply, thereby creating a substantial risk of confusion of issues. We disagree and affirm.
The accident occurred on November 1, 2009, when Natasha was visiting her mother-in-law on Channing Road, a side street in a development, in East Brunswick. Natasha visited her mother-in-law approximately four times per week, but claims she had never noticed the pothole before her fall nor had she ever parked in that area. She explained that the pothole was concealed by leaves on the day of her accident. The accident occurred at approximately 4:00 p.m. when Natasha took a step back from her car after placing her three-year-old daughter into a car seat. At that point, Natasha stepped into the pothole and her right ankle snapped, resulting in a bimalleolar fracture, which required surgical repair with internal fixation.
Plaintiffs filed suit against defendant Township of East Brunswick (Township),  claiming that the pothole constituted a dangerous condition under the Act. Before trial, plaintiffs moved in limine to bar the Township from presenting a discretionary immunities defense with respect to whether the Township's failure to repair the roadway was palpably unreasonable. Plaintiffs argued that the Township had inspected Channing Road before the accident and determined that it was not in need of repair and thus had not placed it on the Township's repaving list. Because the Township did not consider the roadway in need of repaving, plaintiffs argued that there was no evidence of the Township exercising any discretion to allocate its limited resources to a different roadway. The trial court denied plaintiffs' motion and permitted the Township to present evidence of its limited resources to the jury.
At trial, both Robert and his mother, Robin Herbst (Robin), testified that the condition of the roadway where Natasha fell had existed since 2001, following the repair of a broken water main in the roadway. Robin said the patched area "started to sink . . . over time." Robin claimed to have reported the condition to the Township in November of 2002, after her daughter "twisted her ankle in the same spot" of the roadway. She said she was told someone would be out to take care of the problem, but no repair work ever occurred.
Robert testified that he was present when his sister twisted her ankle in the same area in 2002. Because he was aware of the problem, he said that he tried to avoid parking near it on the day of his wife's accident. Despite his awareness of the pothole, he said he never thought to warn his wife about it. Robin ...