Polzo v. County of Essex

• Citation: 196 N.J. 569,960 A.2d 375
• Decision Date: 03 December 2008
• Docket Number: A-69 September Term 2007
• Parties: Donald T. POLZO, as Executor for the Estate of Mathi Kahn-Polzo, and Donald T. Polzo, individually, Plaintiff-Respondent, v. COUNTY OF ESSEX, Defendant-Appellant, and Public Service Electric and Gas Company, John/Jane Doe 1-10 and John Doe Corp. 2-10, Defendants.
• Court: United States State Supreme Court (New Jersey)

960 A.2d 375

196 N.J. 569

Donald T. POLZO, as Executor for the Estate of Mathi Kahn-Polzo, and Donald T. Polzo, individually, Plaintiff-Respondent, v. COUNTY OF ESSEX, Defendant-Appellant, and Public Service Electric and Gas Company, John/Jane Doe 1-10 and John Doe Corp. 2-10, Defendants.

A-69 September Term 2007

Supreme Court of New Jersey.

Argued September 9, 2008.

Decided December 3, 2008.

Meredith Kaplan Stoma, Livingston, argued the cause for appellant (Morgan Melhuish Abrutyn and Harry J. Del Plato, Essex County Counsel, attorneys; Ms. Stoma and Alan Ruddy, of counsel; Mr. Ruddy and Jeffrey S. Leonard, on the brief).

E. Drew Britcher, Glen Rock, argued the cause for respondent (Britcher, Leone

& Roth, attorneys; Jessica E. Choper, on the brief).

Justice RIVERA-SOTO delivered the opinion of the Court.

This appeal requires that we revisit the intersection of the provisions of the Tort Claims Act, N.J.S.A. 59:4-1 to 14-4, that govern claims against governmental entities arising from an alleged dangerous condition on public property. Specifically, N.J.S.A. 59:4-2(b) provides in part that a public entity will not be liable for injuries arising from a dangerous condition on public property unless the "public entity had actual or constructive notice of the dangerous condition ... a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." N.J.S.A. 59:4-3(b) constructively imputes notice of the dangerous condition of public property to a public entity "only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." Finally, N.J.S.A. 59:4-2 provides that, even if it is shown that a dangerous condition existed on public property and the public entity was on notice of it, either actually or constructively, the public entity nevertheless will be immune from liability "if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable."

On summary judgment, the motion court skirted the question of whether the public entity was on actual or constructive notice of the dangerous condition alleged and, assuming that it was, concluded that inaction in the face of that knowledge was not palpably unreasonable. As a result, the motion court entered summary judgment in favor of the public entity. The Appellate Division reversed and reinstated the complaint. Relying almost exclusively on an expert's report, the panel concluded that a depression in the shoulder of a roadway — the claimed cause of the accident sued on — "`existed for such a period of time and was of such an obvious nature' that it should have been discovered by the [public entity]." It further determined that the issue on which the motion court entered judgment in favor of the public entity — whether the public entity acted or failed to act in a "palpably unreasonable" manner — was preserved for trial.

We address only the sufficiency of the plaintiff's proofs in respect of the question of whether constructive notice of a dangerous condition on public property can be imputed to the public entity. For the reasons that follow and because the record on appeal is insufficient to satisfy plaintiff's burden, we conclude that, due to the procedural circumstances presented, it cannot be determined whether, as a matter of law, the public entity was on constructive notice of a dangerous condition on public property. We therefore reverse the judgment of the Appellate Division and remand the cause to the Law Division for further proceedings.

I.

On Saturday, August 18, 2001, Mathi Kahn-Polzo together with four other riders engaged in a group bicycle ride through Essex County. At approximately 12:23 p.m., the group was headed in a westerly direction on Parsonage Hill Road in Millburn; they were riding on the shoulder of the road and Kahn-Polzo was trailing the group. The lead rider of that group, Gus Schlaier, heard Polzo exclaim "Oh, my God," followed by his name— "Gus" — and then a crash. Schlaier immediately stopped and turned. He saw Kahn-Polzo lying face down in the shoulder of the roadway. Schlaier called for his fellow riders to stop, and help was called. Kahn-Polzo was unconscious and was rushed to the hospital. She died twenty-six days later.

Plaintiff Donald T. Polzo, Kahn-Polzo's widower, filed suit as executor of his wife's estate as well as on his own behalf.¹ That suit charged that the Township of Millburn, the County of Essex the State of New Jersey, and assorted fictitious individuals and entities were negligent, asserting that a depression or declivity in the shoulder of the roadway constituted a dangerous condition giving rise to liability and that Kahn-Polzo's accident was the direct and proximate result of her bicycle striking that depression or declivity. Specifically, plaintiff claimed that the defendants, jointly and severally, owed a duty of care "in making the road reasonably safe for persons riding bicycles on and around said road[;]" that the defendants knew or should have known that the road was "in a dangerous, hazardous and unsafe condition[,]" and that the claimed dangerous conditions caused Kahn-Polzo "painful and permanent injuries which ultimately resulted in her death[.]" Because, at the location of this accident, Parsonage Hill Road is a county road, the claims against both the Township of Millburn and the State of New Jersey were dismissed with prejudice, leaving only the County as an identified public entity defendant.

Once the discovery period concluded, the County moved for summary judgment. It asserted that (1) the County had no actual or constructive notice of the claimed dangerous condition; (2) the County's actions or inactions in addressing the depression or declivity on the shoulder of the road were not palpably unreasonable; (3) the depression or declivity in the shoulder did not create a substantial risk of harm to foreseeable users; and (4) plaintiff had not established that decedent's injuries and death were proximately related to the depression or declivity in the shoulder of the roadway. After briefing and argument, that motion was granted.

Summarizing the case succinctly, the motion court explained that "this is a case clearly in which [plaintiff is] alleging that the County of Essex allowed a dangerous condition that [it] had constructive notice of to exist for a sufficiently long amount of time and did nothing about it." It noted that, based on those allegations, plaintiff asserted that, "therefore, it was palpably unreasonable for [the County] not to [address that condition]." The motion court explained that the shoulder of the roadway was four feet wide, that the width of "the declivity, the depression, sink hole, whatever you want to call it was approximately two-feet either way[,]" and that the depression or declivity was "anywhere from an inch and a half to two-inches [deep.]" It observed that the public entity had

a policy of repairing, and not re-paving, but repairing if they have notice as to the existence of such a depression [—] either by way of a citizen's complaint, the police complaining, or by way of any accident or injury occurring that's alleged to be as a result of that depression [—] that they would repair it within a short time after that.

Consistent with that policy, the motion court recounted that there were "a number of complaints or notices that there were potholes along this stretch of Parsonage [Hill] Road, approximately 2.6 miles[ a]nd a record that they did go out and repair it shortly after receiving notice."

Based on those factual findings and assuming, without deciding, that the depression or declivity was a dangerous condition that was the proximate cause of Kahn-Polzo's accident, the motion court elided the question of whether the public entity was on actual or constructive notice of the assumed dangerous condition and, instead, couched the issue on summary judgment as whether the County's "action or inaction[ ] in protecting against [the defined dangerous] condition is palpably unreasonable." It defined the "palpably unreasonable" standard as, "under any given circumstances[,] it must be manifest and obvious that no prudent person would approve [the public entity's] course of action or inaction." Concluding that nothing presented justified a finding of governmental behavior that, as a matter of law, was palpably unreasonable, the motion court dismissed plaintiff's complaint.

Plaintiff appealed, and the Appellate Division reversed. In an unpublished, per curiam opinion, the panel relied in large measure on "an engineering report prepared by Dr. Ira S. Kuperstein." According to the Appellate Division,

Dr. Kuperstein concluded "with a reasonable degree of engineering certainty, that the bicycle entered the depression, and as a result thereof, its rider fell and was injured." According to Dr. Kuperstein, the subject depression existed for a significant period of time, which he described as "months if not years, based on the recorded changes." In addition, Dr. Kuperstein concluded the depression would have, or should have, "been noticed by those responsible for the maintenance of Parsonage Hill Road for what it was — a maintenance defect, and/or dangerous or hazardous condition, that could foreseeably cause, (and, unfortunately did cause) an accident of the subject type."

The panel explained that, "[b]ased on the size and location of the depression, and Dr. Kuperstein's report, plaintiff argued a dangerous condition had existed for such a period of time that the County had constructive notice of the condition prior to the accident on August 18, 2001." It further noted that

[p]laintiff also offered proof there were a large number of complaints concerning potholes on Parsonage Hill Road...