Polzo v. Cnty. of Essex

• Decision Date: 18 January 2012
• Citation: 209 N.J. 51,35 A.3d 653
• Parties: Donald T. POLZO, as Executor for the Estate of Mathi Kahn–Polzo, and Donald T. Polzo, individually, Plaintiff–Respondent and Cross–Appellant, v. COUNTY OF ESSEX, Defendant–Appellant and Cross–Respondent,andTownship of Millburn, State of New Jersey, and Public Service Electric and Gas, Defendants.
• Court: New Jersey Supreme Court

209 N.J. 51

35 A.3d 653

Donald T. POLZO, as Executor for the Estate of Mathi Kahn–Polzo, and Donald T. Polzo, individually, Plaintiff–Respondent and Cross–Appellant,

v.COUNTY OF ESSEX, Defendant–Appellant and Cross–Respondent,andTownship of Millburn, State of New Jersey, and Public Service Electric and Gas, Defendants.

Supreme Court of New Jersey.

Argued Sept. 26, 2011.Decided Jan. 18, 2012.

Jeffrey B. Beacham argued the cause for appellant and cross-respondent (McGivney & Kluger, attorneys; Mr. Beacham and Michael R. Sarno, Florham Park, on the briefs).

E. Drew Britcher, Glen Rock, argued the cause for respondent and cross-appellant (Britcher, Leone & Roth, attorneys; Mr. Britcher and Jessica E. Choper on the briefs.).

Robert F. Renaud, Cranford, submitted a brief amicus curiae on behalf of New Jersey State League of Municipalities (Palumbo & Renaud, attorneys).Justice ALBIN delivered the opinion of the Court.

We must determine whether a county can be held liable for a fatal accident that occurred when a person lost control of her bicycle while riding across a two-foot wide, one-and-one-half inch depression on the shoulder of a county roadway. Although potholes and depressions are a common sight on New Jersey's roads and highways, public-entity liability is restricted under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1–1 to 12–3. Liability attaches to a public entity only when a pothole or depression on a roadway constitutes a dangerous condition; the public entity either causes the condition or is on actual or constructive notice of it; and, if so, the public entity's failure to protect against the roadway defect is palpably unreasonable. See N.J.S.A. 59:4–2.

Here, the trial court granted summary judgment in favor of Essex County and dismissed plaintiff's wrongful-death and survival-action lawsuit, finding that the County did not have actual or constructive notice of a dangerous condition of the roadway's shoulder and, alternatively, that the County did not act in “a palpably unreasonable” manner by failing to repair the depression. The Appellate Division reversed, concluding that a jury could determine that the County affirmatively caused a dangerous condition of property by not having in place a proactive program to inspect its roadway for the type of defect that was presumably responsible for the fatal accident in this case.

We now hold that the Appellate Division erred in suggesting that public entities may have to employ the equivalent of roving pothole patrols to fulfill their duty of care in maintaining roadways free of dangerous defects. In this case, just five weeks before the accident, while filling some potholes, the County surveyed the entire length of the subject roadway. Even when viewed in the light most favorable to plaintiff, we cannot conclude that the County was on constructive notice of a “dangerous condition” on the shoulder of its roadway that “created a reasonably foreseeable risk” of death, or that the County's failure to correct this depression before the tragic accident was “palpably unreasonable.” See N.J.S.A. 59:4–2.

We therefore reinstate the grant of summary judgment in favor of the County and dismiss the complaint.

I.

A.

On August 18, 2001, at approximately 12:20 p.m., a group of five experienced bicyclists was riding downhill on the westbound shoulder of Parsonage Hill Road in the Township of Millburn.¹ Mathi Kahn–Polzo, one of the five, was traveling behind the pack at a speed of approximately fifteen miles-per-hour when her bicycle traveled over a circular depression that was two feet in diameter reaching a depth of approximately one-and-one-half inches. She lost control of her bicycle and fell to the pavement, suffering a catastrophic head injury, despite wearing a helmet. She died twenty-six days later without ever regaining consciousness.

B.

In September 2002, plaintiff Donald T. Polzo, Mathi's husband, filed a wrongful-death and survival action against Essex County, Millburn Township, and the State of New Jersey, alleging that all three entities were responsible for a dangerous condition on a public roadway. Parsonage Hill Road is owned, controlled, and maintained by Essex County. Eventually, the State and Millburn Township were dismissed from the case, leaving Essex County as the only defendant.

This case has followed a tortuous procedural path to the present appeal. Twice the trial court applied the public-entity immunity provisions of the Tort Claims Act and dismissed plaintiff's action on summary judgment, and twice the Appellate Division reversed and reinstated the case. In the first round of appeals, this Court granted the County's petition for certification and then reversed the Appellate Division on the ground that plaintiff's case rested almost entirely on an expert's net opinion. We remanded to the trial court for plaintiff to further develop the record.

We now present the record before us.

C.

Significant to this case is an understanding of two types of defects that may impair the surface of a road—potholes and depressions. According to the deposition testimony of Assistant Essex County Supervisor of Roads, Salvatore Macaluso, a pothole is “anything an inch-and-a-half or deeper where the pavement is actually broken out.” ² In contrast, a depression is a “dip” in the road without any break in the roadway surface. Macaluso indicated that a roadway hole less than an inch-and-a-half would not be repaired because “the asphalt is not going to adhere to it.” Similarly, small depressions would not be repaired because the asphalt would not stick.³

Macaluso stated that a pothole measuring an inch-and-one-half or greater in depth on the shoulder of a roadway would be repaired if the County “had knowledge” of it, but that a depression of the same size would not necessarily be repaired. Typically, the County would make repairs outside the designated travel lanes—such as on the roadway's shoulder—only when an “edge of [the] pavement [is] actually br[eaking] out into the travel lane” or the “stone or asphalt has washed away.”

County roadway repairs were made when complaints were received from the police, town officials and residents, and motorists. Most of those complaints, apparently, were communicated by telephone. In addition, Macaluso inspected roads that either had not been repaved in years or had been the subject of pothole complaints or other pavement problems.⁴ The County had no other systematic program for the inspection of its roadways for defects.

Parsonage Hill Road—the roadway at issue—had been repaved five to seven years before the accident. Just five weeks before the accident, on July 6, 2001, the County received a complaint of a pothole on that road. The County's records disclosed that one of its employees, T. Burton, repaired the targeted pothole and inspected the “entire length” of the 2.6–mile road, filling other potholes. Burton was not deposed by either party during the discovery period. Consequently, we do not know whether he, or another crewmember, checked the shoulder of Parsonage Hill Road for potholes or depressions. Nor do we know whether they observed the depression at issue or, if they did, what their eye-ball estimate of the depth of the depression was at that time.

Macaluso reviewed a police photograph of the depression on the roadway's shoulder that is claimed to be the cause of Kahn–Polzo's accident. He estimated that the depression was “an inch-and-a-quarter” in depth.⁵ At his deposition, Macaluso averred that he would repair a depression that was more than an inch-and-a-half in depth. He even suggested that the road depression at issue would have been repaired if the County “had knowledge of it.”

Plaintiff's cause of action rests largely on Dr. Kuperstein's three expert reports and his more recent deposition testimony. We initially deal with the first two reports because they were before the trial court when it entered summary judgment against plaintiff in the first procedural round. In his May 2004 report, Dr. Kuperstein came to the following conclusions: (1) Kahn–Polzo rode her bicycle into the depression on the shoulder of Parsonage Hill Road, fell, and suffered fatal injuries; (2) the depression was a “dangerous or hazardous condition” that “was a direct or proximate cause of the accident” and her ensuing injuries; (3) “the subject depression would not have been readily apparent to a bicyclist”; (4) the road depression “should[ ] have been noticed by those responsible for maintenance of Parsonage Hill Road” because it existed for a period of “months if not years”; (5) the accident and injuries suffered by Kahn–Polzo were a foreseeable consequence of the dangerous condition of the roadway; and (6) repairing the roadway depression would have been a “[r]elatively low-cost” operation.

In a July 2004 report, Dr. Kuperstein concluded that Essex County's failure to “have an accepted and proper procedure or system ... to identify and repair roadway surface defects” was “directly linked to the subject depression and accident that occurred.”

In response, the County submitted an expert report authored by Irving Ojalvo, Sc.D. and Kristopher Seluga, S.M. in which they opined that it was impossible to determine the cause of the accident. According to the County's experts, the “subject depression was a relatively benign road feature and presented no serious hazard to a cyclist traveling at a reasonable speed.” Conducting their own tests, the experts concluded that a bicyclist “could easily ride over the depression at speeds up to 15 mph without any loss of control.” They observed that a “cyclist must be prepared to encounter many obstructions” on a roadway, “such as potholes, tree branches, leaves and other road debris,” and that “a cyclist assumes a level of responsibility when traveling on a public roadway, which is not designed as a bike path.”

D.

Based on that record, the trial court granted summary judgment in...