Chatman v. Hall

Citation608 A.2d 263,128 N.J. 394
Decision Date29 June 1992
Docket NumberF-Z
PartiesEddie CHATMAN and Sarah Chatman, his wife, Plaintiffs-Appellants, v. Paul HALL, Valerie Hall, John Doe(s)Maintenance Personnel and/or Administrators, (being Fictitious names) as construction company/companies individually, jointly, severally and/or in the alternative, Defendants, and Walter Richardson, Walter Ray, Clarence Miller, Joseph Difante, Wilbert Fountain, and Albert Benjamin, Defendants-Respondents.
CourtUnited States State Supreme Court (New Jersey)

Stephen W. Guice, Cherry Hill, for plaintiffs-appellants (Friedman, Bafundo, Ginsberg and Porter, attorneys).

Donald Caruthers, III, Haddonfield, for defendant-respondent Walter Richardson (Yampell, Nicodemo & Caruthers, attorneys).

Arthur E. Donnelly III, Cherry Hill, for defendants-respondents Walter Ray, Clarence Miller, Joseph DiFante, Wilbert Fountain and Albert Benjamin (Montano, Summers, Mullen, Manuel, Owens & Gregorio, attorneys).

The opinion of the Court was delivered by

HANDLER, J.

This case concerns the duty owed to the public by municipal employees charged with maintaining and repairing public streets. Defendants are all employees of the Department of Public Works of the City of Camden. They are said to have allowed a dangerous condition to persist in a public street for many months and as a result to have caused injury to plaintiff. The City has never been a party to this case, presumably because plaintiff would have been barred by the failure to serve a timely notice of claim. The trial court granted summary judgment in favor of the all defendants. The Appellate Division affirmed in an unreported opinion. This Court then granted certification. 126 N.J. 328, 598 A.2d 886 (1991).

I

On November 11, 1986, plaintiff Eddie Chatman was standing in the street on the 28th block of Benson Street in Camden, leaning over the open hood of a parked car. A 1963 Chevrolet pick-up truck coming down the street at about five miles per hour hit a large hole in the street. Its passenger side door swung open, striking Mr. Chatman in the back, causing him serious injury. The street where the accident took place was one way, residential, and had cars parked on both sides.

Affidavits submitted by nearby residents describe the hole as "very large." Photos provided of the hole after the accident and after it had been filled show that the hole ran across much of the street. The driver of the truck stated that the hole had been in the street for at least seven to eight months and that he could not have avoided it. Chatman said that he could hear cars passing over the hole from inside his home. And, as the facts of the case suggest, the hole was large enough to cause the door of the pick-up truck to swing open.

The exact nature and cause of the hole is not clear from the record. It is alternatively referred to as a large hole, a pothole a "plumber's ditch" 1 and a "cave in" 2. Chatman maintains that calls were made to the City by John Exum, a nearby resident, at least a year before the accident, complaining about the hole on Benson Street. Although Exum has submitted affidavits attesting to his having made those calls, the City states that it has no records of them. According to defendant employees, they and the City had no actual notice of the hole on Benson Street until after the accident. The first notice they received was on December 3, 1986, roughly twenty days after the accident, when an unidentified caller complained about the hole. On the following day it was repaired by a work crew of the Camden Public Works Department.

On January 19, 1988, Eddie Chatman and his wife, Sarah, filed a complaint against the driver of the pick-up truck and various unnamed maintenance personnel. (Reference hereinafter to "plaintiff" is to Eddie Chatman.) Because they did not meet the ninety-day notice requirement of the Tort Claims Act, the Chatmans were unable to include the City of Camden in their suit. After some delay, the City provided the names of those employees in the Department of Public Works responsible for maintaining Benson Street. Those six persons were added to the complaint on July 7, 1989. They were Walter Richardson, director of the Public Works Department; Wilbert Fountain, street superintendent; Albert Benjamin, assistant street superintendent in charge of the highway department; Clarence Miller, foreman responsible for the crews that fill potholes in the City; Walter Ray, a foreman responsible for street maintenance in the area including Benson Street; and Joseph DiFante, the City street inspector at the time of the accident.

The Public Works Department is generally responsible for maintaining and securing public property in the City of Camden. The Highway Division of the Department is in turn responsible for maintaining the roughly 250 miles of streets in the city. At the time of the accident, it had a total of fifty-five employees, six of whom were assigned to repair potholes. The Division operates on the basis of a complaint system. The City receives about 300 to 400 complaints daily. Based on the severity of the complaint, crews are sent out to take remedial action or perform inspections. All complaints are reviewed daily by the head of the Highway Division, a defendant in this action.

Work crews also independently identify street problems. Sometimes they simply call in complaints when they come across potholes or dangerous conditions. On at least some occasions they immediately repair the problem. In addition, there was at least one and perhaps more than one full time street inspector at the time of the accident. Joseph DiFante, also a defendant, was responsible for driving the streets of Camden supervising and inspecting road work by private contractors. He was responsible for insuring that those contractors filled plumber's ditches and that the City in turn topped the holes off.

When asked whether any inspections were made of the area subsequent to the accident, defendant Wilbert Fountain stated that an inspection of the area had been made on March 3, 1986. That would have been more than eight months before the accident. The date, however, seems to have been an error. Fountain said they found two plumber's ditches that had been repaired on December 3, 1986. Thus, the inspection was most likely made after the accident. Aside from that inspection, there is no evidence that employees of the Department inspected the area on Benson Street.

In granting summary judgment in favor of defendants, the trial court held that plaintiff could not recover because a jury could not find that any of defendants had either actual or constructive knowledge of the hole. Further, even if a jury could have found that defendants had notice, N.J.S.A. 59:3-7 immunized defendants from suit by barring claims brought against public employees for negligent inspection. The court also found defendants immune from suit because their discretionary decisions fell within the ambit of N.J.S.A. 59:3-2d, which provides a qualified immunity for the discretionary acts of public employees. Finally, the trial court determined that N.J.S.A. 59:4-2, which provides the standards for imposing liability on a public entity for dangerous conditions on public property, did not apply to defendants. On appeal, the Appellate Division affirmed, adopting the reasoning of the trial court and ruling that plaintiff had not shown "any duty toward this condition [the hole in the street] which is not subject to the immunity provision of the Act."

In determining the issues posed by this appeal, we rely on the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3 (Act), which governs claims against public entities and public employees. We emphasize initially that the Act reestablishes sovereign immunity for public entities, but does not similarly shield public employees. Longo v. Santoro, 195 N.J.Super. 507, 515, 480 A.2d 934 (App.Div.), certif. den., 99 N.J. 210, 491 A.2d 706 (1984). A public entity is deemed "not liable for an injury" except as provided in the Act, N.J.S.A. 59:2-1. In contrast, a public employee "is liable for injury" except as otherwise provided. N.J.S.A. 59:3-1. Thus, the analysis for determining public-employee liability differs markedly from the analysis for determining public-entity liability. That differential treatment of public employees and entities by the Tort Claims Act reflects longstanding legal principles in the State and explains in large part the apparent anomaly that public employees may be exposed to greater liability than their public employers. While some may be surprised that public employees and employers are treated differently for tort purposes, the distinctions are readily explainable given the evolution of tort law in New Jersey. Moreover, it should be emphasized that the apparent harshness of exposing employees to greater liability under certain limited circumstances is just that--apparent. In practice, the longstanding policy of indemnifying public employees shields them from ruinous tort penalties.

We now hold that under the Tort Claims Act and relevant common law jurisprudence public employees owe a duty to members of the public to protect against the dangerous condition of public property and that such employees are not immune from suit under the "inspection" immunities of the Act. With respect to protecting against the dangerous condition of public property, we determine that the standard of care applicable to public employees depends on the nature of their duties. If those duties are ministerial and non-discretionary, public employees may be found liable if they failed to use reasonable care. If those duties require the exercise of discretion or policy decisions, public employees may be found liable if their failure to use care was palpably unreasonable. These rules insure that innocent victims are not left with the financial burden imposed on them by other persons' negligence...

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    ...Under the Act, public entities are not liable for an injury unless liability is specifically provided for by statute. Chatman, supra, 128 N.J. at 402, 608 A.2d 263. Furthermore, liability can be imposed on a public entity only if that imposition is consistent with the entire Act. Kolitch, s......
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