DONALD T. POLZO, as Executor for the ESTATE OF MATHI KAHN- POLZO, et al. v. COUNTY OF ESSEX

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1111-05T51111-05T5

DONALD T. POLZO, as Executor

for the ESTATE OF MATHI KAHN-

POLZO, and DONALD T. POLZO,

individually,

Plaintiff-Appellant,

v.

COUNTY OF ESSEX,

Defendant-Respondent,

and

TOWNSHIP OF MILLBURN,

STATE OF NEW JERSEY,

Defendants.

____________________________________________________________

 

Argued November 8, 2006 - Decided August 22, 2007

Before Judges Weissbard, Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

L-8986-02.

E. Drew Britcher argued the cause for appellant

(Britcher, Leone & Roth, attorneys; Mr. Britcher,

of counsel; Mindy Michaels Roth, on the brief).

Alan Ruddy, Assistant County Counsel, argued the

cause for respondent County of Essex (Harry J.

Del Plato, Essex County Counsel, attorney;

Mr. Ruddy, on the brief).

PER CURIAM

This personal injury and wrongful death action was filed by plaintiff Donald T. Polzo following the death of his wife, Mathi Polzo. On August 18, 2001, at approximately 12:23 p.m., Mrs. Polzo was cycling on Parsonage Hill Road, in the Township of Millburn, County of Essex. Mrs. Polzo, an experienced cyclist, was the last in a line of five riders traveling on the paved portion of the shoulder of the roadway when she fell. Unfortunately, despite the use of a helmet, Mrs. Polzo sustained a massive head injury, and she died. According to plaintiff and his expert, Mrs. Polzo fell when the front wheel of her bicycle struck a "depression/sink hole," which has been described as approximately circular with a two-foot diameter and a maximum depth of two inches. Plaintiff appeals from an order entered on September 23, 2005, granting summary judgment in favor of defendant County of Essex (the County). We reverse.

To withstand a motion for summary judgment under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 14-4, a plaintiff asserting liability under N.J.S.A. 59:4-2 must present sufficient evidence to demonstrate a reasonable jury could find the following: (1) the property was in a dangerous condition at the time of the accident; (2) the dangerous condition was a proximate cause of the injury (and in this case, the death); (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred; (4) a public employee either created the dangerous condition or had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have protected against the condition; and (5) the action or inaction of the public entity to protect against the dangerous condition was palpably unreasonable. Brown v. Brown, 86 N.J. 565, 575 (1981); Saldana v. Dimedio, 275 N.J. Super. 488, 502 (App. Div. 1994).

In support of its motion for summary judgment, defendant argued to the trial court: (1) the dangerous condition alleged by plaintiff did not create "a substantial risk of injury" for foreseeable users as required by N.J.S.A. 59:4-1(a); (2) plaintiff failed to prove proximate cause; (3) plaintiff failed to establish defendant had notice of the allegedly dangerous condition because the depression was not obvious and there was "no evidence of any prior complaints and/or actions at the spot in question"; and (4) plaintiff failed to demonstrate defendant's actions or inactions were palpably unreasonable.

In his opposition to defendant's summary judgment motion, plaintiff provided the court with a copy of an engineering report prepared by Dr. Ira S. Kuperstein. Based upon his investigation, 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."

Based 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. See Chatman v. Hall, 128 N.J. 394, 418 (1992) (noting length of time during which hole in the street existed as well as its alleged size "create a reasonable inference that the defendant employees had either actual or constructive notice of the hole"). Plaintiff also offered proof there were a large number of complaints concerning potholes on Parsonage Hill Road prior to decedent's accident, and defendant's road maintenance records confirmed that on July 12, 2001, T. Burton, an employee of the Essex County Department of Public Works, reported he checked and filled potholes along the entire length of Parsonage Hill Road. In addition, plaintiff provided the court with the deposition testimony of Salvatore Macaluso, the Assistant County Supervisor of Roads, who acknowledged, after viewing a photograph of the depression in question, if "we had knowledge of this and it was called in by the police or anybody else, it probably would have been [repaired]."

In granting defendant's summary judgment motion, the trial court determined a reasonable jury could not conclude the defendant's actions, or inactions, were palpably unreasonable:

So I will grant the motion for summary judgment on the basis that even if I accepted the other contentions of fact and law that there's enough for a dangerous condition to have been found and for her to be found to have using it with due care. On the issue of palpably unreasonable, I think this is a case in which it's not one for the jury in the absence that there were sufficient prior complaints or reports of prior injuries.

Although the Tort Claims Act does not define the phrase "palpably unreasonable," it "means more than ordinary negligence, and imposes a steep burden on a plaintiff." Coyne v. New Jersey, 182 N.J. 481, 493 (2005); see also Gaskill v. Active Envtl. Techs., Inc., 360 N.J. Super. 530, 536-37 (App. Div. 2003) ("Palpable unreasonableness connotes 'a more obvious and manifest breach of duty' than mere negligence . . . ." (quoting Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979)). In discussing the phrase palpably unreasonable, the Court has stated that it "'implies behavior that is patently unacceptable under any given circumstance. . . . [I]t must be manifest and obvious that no prudent person would approve of [the public entity's] course of action or inaction.'" Muhammad v. N.J. Transit, 176 N.J. 185, 195-96 (2003) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)); see also Williams, supra, 171 N.J. Super. at 286 (App. Div. 1979) ("We have no doubt that the duty of ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff.").

The plaintiff bears the burden of proving the public entity acted in a palpably unreasonable manner. Muhammad, supra, 176 N.J. at 195. Whether the conduct of a public entity was palpably unreasonable is ordinarily for the jury to decide. Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 451 (App. Div. 1993). And, in our view, a jury must decide whether defendant was palpably unreasonable in this case.

When viewed most favorably for plaintiff, the evidence establishes the depression in the roadway "existed for such a period of time and was of such an obvious nature" that it should have been discovered by the County. N.J.S.A. 59:4-3(b). Furthermore, plaintiff's proofs were sufficient to raise a question of fact as to whether the County was palpably unreasonable for failing to repair the depression when it allegedly checked for potholes and repaired them along the entire length of Parsonage Hill Road on July 12, 2001--approximately five weeks prior to decedent's tragic accident.

 
Reversed and remanded for further proceedings consistent with this opinion.

Plaintiff's claims against the Township of Millburn and the State of New Jersey were dismissed because the accident occurred on an Essex County roadway. We therefore refer to the County of Essex as "defendant."

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A-1111-05T5

August 22, 2007