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What Defenses Are Available to Public Entities for Falls on Public Sidewalks?

By on February 2, 2018 in Liability with 0 Comments

If a plaintiff is able to establish that it is the public entity who bears the responsibility for the condition of a public sidewalk which caused the plaintiff’s fall, the public entity may remain immune from liability based upon Tort Claims Act defenses. The public entity (municipality, county, or State) may defend on the basis of lack of notice of the dangerous condition, that its action or inaction in failing to repair the sidewalk was not “palpably unreasonable,” plan and design immunity, the allocation of resources defense, or common law snow removal immunity.

Under the Tort Claims Act, N.J.S.A. 59:4-2(b), a public entity can be liable for a dangerous condition of its property that causes an injury only if it had “actual or constructive notice of the dangerous condition…[in] sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” Unless an employee of the public entity created the condition, for a public entity to be liable for a dangerous condition of a public sidewalk, the public entity must know about the condition before the incident – or it must have existed for a sufficiently long time that knowledge will be imputed to the public entity based upon “constructive” knowledge.

The “notice” defense is often an excellent defense for injuries caused by sidewalk falls. Municipalities often have miles of sidewalk and frequently have no prior knowledge of a hazardous condition of their sidewalk – especially if it is a relatively minor defect. However, a plaintiff may still try to prove “constructive” notice, i.e., the public entity should have been aware of the defect. For example, if the public entity had performed work very near to the defective sidewalk, which was in an obvious state of disrepair, a plaintiff may be able to argue that the public entity should have noticed the dangerous condition of the sidewalk at the time it was performing work in the area.

Because the notice defense is a powerful tool to defend against these fall down cases, should the public entity inspect its sidewalks to identify problem areas? By conducting such an inspection, doesn’t that destroy the public entity’s notice defense? The short answer is “yes” to both of these questions for several reasons.

First, by identifying problem areas of the sidewalks, public entities can develop a list, prioritize those sidewalks in most need of repair, and proceed to fix the problem sidewalks. Obviously, any sidewalks repaired are no longer hazardous and the public entity has just eliminated its risk of a lawsuit for injuries from a fall. Second, even though the public entity may not be able to assert a notice defense, it may be able to utilize an allocation of resources defense to defend against a known dangerous condition of its sidewalk, if it meets the criteria of N.J.S.A. 59:2-3.

Based upon the allocation of resources defense, a public entity has immunity from liability based upon making certain discretionary decisions. It will not be liable for the exercise of discretion “when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes the determination of the public entity was palpably unreasonable.”

Thus, if the public entity can develop a sidewalk repair program, with a reasonable basis for determining priority of repairs and, based upon budgetary issues, cannot repair all of the sidewalks at the same time, it can use this discretionary decision to defend against a fall on a defective sidewalk – that had been identified but not yet repaired – based upon the allocation of resources defense.

Third, even if a public entity may have had notice (actual or constructive) of the dangerous condition of the sidewalk and failed to take action to remediate the condition, it will not be liable if “the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.” This palpably unreasonable defense is typically asserted with an allocation of resources defense to justify why the public entity has not yet repaired a known defective sidewalk.

Another available defense is the plan and design immunity defense pursuant to N.J.S.A. 59:4-6.  This Tort Claims Act defense is available if the public entity is able to show that the injury was caused by the plan or design of the public property. However, the public entity must be able to establish that the plan or design had been approved in advance by the governing body, that the approved feature was the subject of the plaintiff’s claim, and that the property had been built as per the plan. While plan and design immunity can be a good defense for a fall from a condition of public property, it is often challenging to find either the plans or drawings for the property and/or the resolution or approval by the public entity’s governing body – especially when the condition was built 20 or 30 years before the accident.

One last immunity that should be mentioned is the common law snow removal immunity. If the fall occurs due to ice or snow on a public sidewalk, the common law snow removal immunity may bar liability against the public entity. This defense is based upon New Jersey common law, as opposed to the Tort Claims Act. Based upon this immunity, if the fall occurred simply due to the public entity’s failure to remove ice or snow from the public sidewalk, the public entity may be able to take advantage of the common law snow removal immunity to avoid liability.

In summary, there are defenses that remain available to a public entity, even if it is found to bear the responsibility to maintain its public sidewalk. These defenses need to be considered in either defending the public entity in a sidewalk fall down case or, in evaluating the viability of a cross-claim as to whether the public entity will ultimately be responsible for the injuries that resulted from the sidewalk fall.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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