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New Jersey Turnpike Authority Found Not Liable For Injury Caused Due To Plaintiff’s Motorcycle Hitting A Pothole

By on March 25, 2022 in Liability with 0 Comments

Plaintiff Daniel O’Brien sued the New Jersey Turnpike Authority (“NJTA”) for injuries he claimed to have suffered when he lost control of his motorcycle after hitting a pothole on the New Jersey Turnpike.  The issue in O’Brien v. New Jersey Turnpike Authority, 2022 N.J. Super. Unpub. LEXIS 120 (App. Div. Jan. 27, 2022) was whether the NJTA was responsible for this injury if the NJTA had no actual or constructive notice of the existence of the pothole. This case shows the difficulty in pursuing a pothole claim against a public entity.

Plaintiff was riding his motorcycle on the New Jersey Turnpike and while approaching a toll plaza close to Interchange 14, he claims to have hit a pothole near a storm drain, causing him to lose control of his motorcycle and slide about 35 feet.  The New Jersey State Police Crash Investigation Report (the police report) included a statement from plaintiff that he lost control of his motorcycle when he hit a hole in the roadway.  The report did identify a dip in the roadway near the drain and listed it as an apparent contributing circumstance of the accident. 

However, in the plaintiff’s deposition, when asked how the accident happened, he claimed not to remember the incident and testified that he found out afterwards that there was a hole in the road.  He produced some photographs of the roadway which appeared to show the roadway defect but was unable to provide any more specifics about the pothole.

According to the records of the NJTA, the roadways were examined on a weekly basis and crews would report anything that needed attention.  On the day of the accident, the NJTA employees did repair a pothole with a bag of cold patch.  Additionally, the NJTA Road Foreman, in reviewing photographs, testified that had he noticed the road defect shown in the photographs during an inspection, his department would have repaired it.

The NJTA repair logs showed that they received no complaints of potholes in the area in the two weeks prior to the accident.  Potholes had been filled in at that interchange about one month before the accident.

The NJTA filed a motion for summary judgment, arguing that it had no actual or constructive notice of the defect, that no evidence had been produced to show that the alleged pothole existed for such a period of time and was of such an obvious nature that the NJTA should have discovered the condition and its dangerous character.  Further, the NJTA argued that the plaintiff had presented no evidence of any kind that the NJTA’s actions or alleged failure to protect against the dangerous condition was palpably unreasonable. 

After hearing oral argument, the motion judge issued an order and written opinion granting the NJTA’s motion.  The plaintiff had failed to dispute the NJTA’s statement of facts but, nevertheless, the judge addressed the substance of plaintiff’s opposition.  The judge found that plaintiff had failed to establish the existence of a factual question that the alleged defect in the roadway constituted a dangerous condition and, thus, granted the motion to dismiss the lawsuit.

Upon appeal, the plaintiff made most of the same arguments to the Appellate Division.  The Appellate Division rejected those arguments and affirmed the dismissal of the lawsuit.

The Appellate Division noted that this claim was governed by the New Jersey Tort Claims Act.  Under the Act, to be able to succeed on a claim against a public entity, the Court noted that “a plaintiff must prove: (1) the public property was in a dangerous condition; (2) the dangerous condition created a substantial and foreseeable risk of, and actually cause, injury to plaintiff; (3) the public entity knew of the dangerous condition; and (4) the public entity’s action to protect against the dangerous condition was palpably unreasonable.”

The Appellate Division found that summary judgment was appropriate because plaintiff did not establish that the pothole was a dangerous condition.  Even assuming that there was a factual issue on that issue, the Court found no support for plaintiff’s contention that the NJTA had actual or constructive notice of the pothole or that its actions were palpably unreasonable. 

The Appellate Division found that the motion judge correctly determined that neither the police report, nor plaintiff, nor the NJTA Foreman provided any details about the size of the pothole or when it was created.  The plaintiff failed to authenticate the photographs and provide the necessary foundation to establish when, and under what circumstances the photographs were taken.  Even the statement in the police report only stated that there was a “dip in the roadway,” which did not establish that the “dip” created a dangerous condition.

Further, the plaintiff failed to show that the NJTA was on actual or constructive notice of the pothole as a dangerous condition. The Court found that there was no evidence that the NJTA was on actual notice of the alleged defect. 

Just because the NJTA repaired potholes at this interchange about one month before plaintiff’s accident and examined the road at least once a week, that did not establish constructive notice of a dangerous condition.  The Court pointed out that the record was “devoid of evidence of prior incidents related to the pothole that caused plaintiff’s accident, nor does the record establish, directly or inferentially, that the NJTA was aware of any issue with respect to the pothole based on complaints from third parties.”  Further, the Appellate Division pointed out that the plaintiff failed “to establish that the dangerous condition 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.”

The fact that the NJTA repaired potholes in the general area of plaintiff’s accident about one month prior did not suggest that they were on notice of a defect at the time of this accident.  The repair logs showed that the NJTA did not receive any complaints of potholes on this interchange for at least two weeks prior to the accident.

Further, the fact that the NJTA regularly examined the roadway in question did not establish constructive notice when the record “is devoid of any competent evidence of the size or age of the alleged defect.”

Finally, the Appellate Division found that there was no proof directly or circumstantially that “the NJTA acted in a palpably unreasonable manner regarding the discovery or repair of this particular pothole or dangerous condition, the procedure in which the NJTA investigated such incidents, or how it responded to plaintiff’s accident.”  Plaintiff failed to submit any proofs suggesting a history of accidents or complaints.

Accordingly, because the plaintiff failed to establish the existence of a dangerous condition, that the NJTA had either actual or notice of the alleged dangerous condition, or that its actions were palpably unreasonable, the Court found “that the plaintiff’s proofs failed to create a genuine and material question of fact that the alleged dangerous condition was the proximate cause of plaintiff’s accident.”  Thus, the Appellate Division upheld the motion judge’s decision to dismiss the complaint as to the New Jersey Turnpike Authority.

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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.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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