MARK CORTESE v. CITY OF ASBURY PARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3585-04T33585-04T3

MARK CORTESE,

Plaintiff-Appellant,

v.

CITY OF ASBURY PARK,

Defendant-Respondent.

____________________________________

 

Argued December 20, 2005 - Decided January 23, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2787-03.

Scott E. Diamond argued the cause for appellant (Hochberg Napoli Diamond, attorneys; Mr. Diamond, on the brief).

Frank P. Menaquale, Jr. argued the cause for respondent (Murphy & O'Connor, attorneys; Mr. Menaquale, Jr., on the brief).

PER CURIAM

Plaintiff appeals from a summary judgment dismissing his claim against the City of Asbury Park under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, for personal injuries he suffered in a motorcycle accident.

Plaintiff alleges that on August 5, 2001, he lost control of his motorcycle on an "uneven, grassy" part of the pavement on a street in Asbury Park, causing him to crash. The record before the trial court on Asbury Park's motion for summary judgment included photographs of the area where plaintiff crashed. Those photographs show cracks in the roadway similar to cracks found in many municipal roadways. Some of those cracks are partially filled with sand and grass. There is no significant drop in the roadway surface in any of the cracks.

The record before the court on the motion also included the deposition of the Director of the Asbury Park Department of Public Maintenance, who testified that the City had no notice prior to the accident of any hazardous condition on the street where plaintiff crashed his motorcycle. He also testified that the cracks in the street shown in the photographs relied upon by plaintiff did not constitute a hazardous condition that the City would have felt a need to repair:

Q. During their inspections would they look for cracks on the road?

A. Unless they were significant, they wouldn't.

Q. What would you consider significant?

A. Something that might constitute a hazard.

Q. Can you be a little more specific [about] that?

A. Something that would be causing the road to break up or create a space that would, you know, be a detriment to a vehicle or pedestrian or somebody on a bicycle or whatever. I don't know how to, you know, categorize the exact parameter.

. . . .

Q. Now, is this [the condition of the roadway shown in the photographs relied upon by plaintiff] a condition that you would be looking for?

A. No.

Q. Is this a condition that you would repair if you found it?

A. No.

A claim against a public entity for an alleged dangerous condition of public property is governed by N.J.S.A. 59:4-2, which provides:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

A dangerous condition is defined 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." N.J.S.A. 59:4-1(a).

In Polyard v. Terry, 79 N.J. 547 (1979), aff'g o.b., 160 N.J. Super. 497, 509-10 (App. Div. 1978), the Court held that slight declivities, exposed aggregate and imperfect surfaces of roadways do not constitute a dangerous condition of public property. The opinion of this court affirmed by the Supreme Court stated in pertinent part:

Obviously not every defect in a highway, even if caused by negligent maintenance, is actionable. N.J.S.A. 59:4-1 requires that the defect create "a substantial risk of injury" when the highway is used with due care "in the manner which it is reasonably foreseeable that it will be used." . . .

. . . .

The use of the phrase "substantial risk" in our act can be taken to mean one that is not minor, trivial or insignificant.

. . . [C]onditions of the highway as shown here - a slight declivity and some exposed aggregate - are not at all uncommon in highways. Travelers on highways must expect some declivities and some areas of imperfect surfaces. An example of the type of condition which might be termed as dangerous is found in Hammond v. Monmouth Cty., 117 N.J.L. 11 (Sup. Ct. 1936). In that case plaintiff, a milkman, while driving his truck, without warning encountered an unprotected excavation in the highway, which permitted the rear wheels of the truck to drop into the excavation and to overturn the vehicle.

[160 N.J. Super. at 508-09.]

The court concluded that a 3/8 inch drop between the surface of a bridge and an adjoining roadway that one witness testified would cause cars to bounce, that another witness testified would cause his car traveling at 50 m.p.h. to bottom and scrape the road surface, and that plaintiff's expert testified could cause a driver to lose control of his car, did not constitute a dangerous condition of public property within the intent of the Tort Claims Act. Id. at 510; see also Garrison v. Twp. of Middletown, 154 N.J. 282, 310-12 (1998) (Stein, J., concurring).

The cracks in the roadway shown in the photographs relied upon by plaintiff posed a less substantial risk of injury than the declivity in the road surface that the court in Polyard held not to constitute a dangerous condition of public property. The cracks do not result in any drop in the roadway surface, and even plaintiff acknowledges that they would not pose any risk to the safe operation of an automobile. These cracks are simply the kind of minor imperfections in the roadway surface that may be seen on many roads in every municipality in the State. Compare Atalese v. Long Beach Township, 365 N.J. Super. 1, 5-6 (App. Div. 2003). Consequently, under Polyard, these cracks did not constitute a dangerous condition of public property.

Moreover, plaintiff did not present any evidence that Asbury Park had either actual or constructive notice of this alleged dangerous condition. The Director of the Asbury Park Department of Public Maintenance gave uncontradicted deposition testimony that the City did not have notice of the cracks in the roadway where plaintiff's accident occurred and that the cracks shown on the photographs of the accident scene did not constitute a hazardous roadway condition that the City would have repaired even if it had received notice. To establish constructive notice of a dangerous condition of public property, a plaintiff must show 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." N.J.S.A. 59:4-3(b). Plaintiff did not present any evidence from which a trier of fact could find that the cracks on the roadway surface were "of such an obvious nature that the public entity . . . should have discovered the condition and its dangerous character." Plaintiff's expert did not cite any standards to support his conclusory opinion that the crack created a hazardous condition that the City should have discovered and repaired.

 
Affirmed.

(continued)

(continued)

7

A-3585-04T3

January 23, 2006