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Herbst v. Township of Brunswick

Superior Court of New Jersey, Appellate Division

May 24, 2013

NATASHA E. AND ROBERT HERBST, JR., Plaintiffs-Appellants,


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).[1] Plaintiffs Natasha Herbst (Natasha) and Robert Herbst, Jr. (Robert)[2] appeal from a judgment of no cause of action entered after a jury returned its verdict that plaintiffs had failed to prove that the pothole[3]which 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), [4] 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 similarly testified that she had never warned Natasha, or anyone else, about the pothole.

Over plaintiffs' objection, the trial judge charged the jury as to the discretionary immunities defense. After twenty-minutes of deliberation, the jury returned its verdict in favor of the Township. All six jurors voted "no" on the first question, which asked whether plaintiffs had "proven by a preponderance of the evidence that the depression or pothole on Channing Road constituted a dangerous condition?" After the trial court denied their motion for a new trial, plaintiffs filed this appeal.

The sole issue on appeal is whether the judge erred in failing to strike the Township's "discretionary immunities" defense, N.J.S.A. 59:2-3(d), and, assuming the judge erred, was the error clearly capable of producing an unjust result.


Absent immunity, N.J.S.A. 59:4-2 governs the liability of a public entity for injuries resulting from dangerous conditions on public property. To impose liability, a plaintiff must prove, by a preponderance of the evidence, that: (1) the property was in a "dangerous condition" at the time of injury; (2) the condition was the proximate cause of the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury which was incurred; (4) the public entity had actual or constructive notice of the condition a sufficient time prior to the injury to protect against the condition; and (5) the action taken to remedy the condition or the inaction of the entity was "palpably unreasonable." Ibid.; Wymbs v. Township of Wayne, 163 N.J. 523, 531-32 (2000).

N.J.S.A. 59:4-1(a) 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 term "'used with due care' implies a standard of objective reasonableness." Garrison v. Twp. of Middletown, 154 N.J. 282, 291 (1998). Therefore, in determining whether a dangerous condition exists in fact, the test is "'whether the property creates a substantial risk of injury to persons generally, who would use the property with due care in a foreseeable manner.'" Id. at 291-92 (quoting Daniel v. N.J. Dep't of Transp., 239 N.J.Super. 563, 587 (App. Div.), certif. denied, 122 N.J. 325 (1990)) (emphasis in original). "Whether property is in a 'dangerous condition' is generally a question for the finder of fact." Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 123 (2001).

The Act is intended to broadly limit the liability of public entities. Alston v. City of Camden, 168 N.J. 170, 176 (2001). "[I]mmunity . . . is the rule and liability is the exception." Fluehr v. City of Cape May, 159 N.J. 532, 545 (1999) (Handler J., dissenting). Thus, the Act should be "strictly construed to permit lawsuits only where specifically delineated." Gerber ex rel. Gerber v. Springfield Bd. of Educ., 328 N.J.Super. 24, 34 (App. Div. 2000) (citing Polyard v. Terry, 160 N.J.Super. 497, 506 (App. Div. 1978), aff'd, 79 N.J. 547 (1979)).

N.J.S.A. 59:2-3 provides, in pertinent part:
c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.

Subsection (c) provides a public entity with immunity when it exercises discretion in the context of decisions "made at a relatively high level of government[al service.]" Lopez v. City of Elizabeth, 245 N.J.Super. 153, 158 (App. Div. 1991). Subsection (d) accords immunity for certain operational decisions made with respect to the utilization or allocation of resources, provided the exercise of this discretion was not palpably unreasonable. Ibid. Immunity sought under either subsection (c) or (d) requires competent evidence to support the claimed immunity. See ibid.


The Township's engineer testified at trial that he had inspected Channing Road before plaintiff's accident and found it in good condition and not in need of repaving; as a result, the road was not placed on the list of streets to be repaved. A public entity raising the defense of resource allocation under the Act has the burden of proving that competing demands existed and that a discretionary determination was made allocating resources among them. Fox v. Twp. of Parsippany-Troy Hills, 199 N.J.Super. 82, 90 (App. Div.), certif. denied, 101 N.J. 287 (1985). Because there was no proof of a resource allocation decision as to Channing Road, the discretionary immunities defense was not available to the Township and should have been stricken. We therefore conclude that the judge's rulings to allow the Township to argue the discretionary immunity defense of N.J.S.A. 59:2-3, and to charge the jury as to the defense, were erroneous. However, that does not end our inquiry. We must next analyze whether the errors prejudiced plaintiffs and deprived them of a fair trial, or whether the errors were harmless. See R. 2:10-2.

We will not disturb a jury verdict if "'the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).

The jury charge with respect to the issue of dangerous condition was correct and not infected by the problems with the remainder of the charge. Proof of a dangerous condition is a necessary element of a meritorious claim under the Act. Because the jury responded to the first question on the verdict sheet by finding that plaintiffs had not proven that the pothole on Channing Road constituted a dangerous condition, it necessarily did not reach the issue of palpable unreasonableness (the fifth question on the jury verdict sheet). Therefore the jury never considered the question of the allocation of resources defense. Consequently, the provision of the requested charge ultimately had no effect on the verdict.

Thus, the error with respect to the remainder of the charge was harmless. R. 2:10-2. We are satisfied that the allocation of resources defense, while improperly raised and argued, was unlikely to confuse or mislead the jury.


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