No NJ Tort Claim Liability for Roadway Depression

In a time when demands on public entity coffers seem to be expanding in the face of dwindling resources, the New Jersey Supreme Court ruled in a case that could have greatly expanded the demands on government maintenance budgets. In Polzo v. County of Essex, the Appellate Division found a County may have created a dangerous condition on a public roadway simply by failing to have a routine inspection program to detect roadway conditions. The Supreme Court disagreed.

The case at the center of a ten year litigation odyssey that included two summary judgments, two Appellate Division and two Supreme Court decisions, involved the wrongful death claim of an experienced bicyclist who died after encountering a 2’ wide by 1 ½” deep depression on a roadway shoulder. The plaintiff’s expert opined that the depression was caused by erosion of the subsurface. A county road crew had repaired potholes on that 2.6 mile roadway just five weeks prior to the accident. However, despite an inspection of the roadway’s entire length, the crew failed to detect this depression, i.e. a dip in the roadway that did not break the roadway surface.

Thus, the issue framed for the Supreme Court was whether the failure of the road crew to identify a dip in the roadway as a dangerous condition that might cause death was a cause of that condition.

The creative argument advanced by the plaintiff sought to circumvent the New Jersey Tort Claims Act. While conferring immunity to public entities, the Act carves out specific exceptions to liability, one of which is when a dangerous condition of public property causes injury. However, a public entity will only be liable when the condition created a reasonably foreseeable risk of the type of injury that occurred when the property was used with due care. Additionally, the plaintiff must prove that the condition was created by an act or omission of a public employee or that the public entity had actual or constructive notice of the condition with sufficient time to correct it. Finally, liability will not be imposed even if these elements are proven if the entity did not act palpably unreasonably.

All courts agreed that the plaintiff could not prove actual or constructive notice – despite the road crew repairs and inspection. However, the Supreme Court disagreed with the Appellate Division’s more expansive view that the failure to have a routine inspection program may have “created” the condition. Rather the Court applied a more literal interpretation finding that underground erosion created the depression.

This decision upholds the Legislative intent of the Act that recognizes that while public entities have seemingly limitless demands to act for the public good, they have limited means to do so.

For more information contact Denise Fontana Ricci at dricci@wcmlaw.com