Road Injury Prevention Litigation Journal
Road Injury Prevention & Litigation Journal
Copyright © 1998 by TranSafety, Inc.
February 2, 1998
TranSafety, Inc.
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New Jersey Court Finds City May Be Liable for Icy Patch on State Highway

A motorist injured when his vehicle skidded on a patch of ice on a U.S. highway in New Jersey sued the city for his injuries. A jury trial in the Superior Court, Law Division of Hudson County found that a dangerous condition did not exist. The resulting judgment ruled the motorist had no cause for action. On appeal, the Superior Court of New Jersey, Appellate Division held that the icy patch on the otherwise dry highway did constitute a dangerous condition. The appeals court concluded that the trial court judge had given improper instructions to the jury regarding the definition of a dangerous condition and, therefore, reversed the lower court's verdict.

THE CRASH

About 6:00 a.m. on March 11, 1989, Walter Robinson was injured in a crash that resulted when his vehicle skidded as it encountered a 355-foot patch of ice on U.S. Highway 1 and 9, also known as Tonnelle Avenue. The highway runs north and south in Jersey City, New Jersey (City) but is not owned by the City. Water that drained from a broken water pipe or hose on private property located along the highway caused the accumulation of ice on the road.

TRIAL COURT DECISION

Robinson brought a personal injury action against the City. The Superior Court, Law Division of Hudson County found no cause of action based on the jury's verdict that no dangerous condition existed. Robinson appealed.

APPEALS COURT DECISION

The Superior Court of New Jersey, Appellate Division first considered testimony regarding when the City received actual notice of the highway's icy condition. Anthony Lombardi, the City's Director and Superintendent of Water Distribution at the time, testified that he received an emergency call from the police and "shortly thereafter" went to Tonnelle Avenue. He found that the road was salted and saw a police car and a tow truck at the scene. It was dark at this time.

In deposition, Lombardi had testified that he received a call to go to Tonnelle Avenue between midnight and 1:00 a.m. At the deposition and at the trial, Lombardi testified he gave instructions that a plumber should be sent to 628 Tonnelle Avenue the first thing in the morning.

Robinson argued the City was responsible for the icy highway because the ice was a dangerous condition that existed on public property. The court agreed that Tonnelle Avenue was public property. Because it was a state highway, however, the trial judge instructed the jury that "a public entity is responsible for injuries proximately caused by a dangerous condition of its property."

The appeals court examined the phrase "dangerous condition." The trial judge instructed the jury that they "must be satisfied by a fair preponderance of the credible evidence" that these points were true:

First, that the condition was one that created a substantial risk of injury, a risk that was not minor, trivial or insignificant to a person using the public property with due care, that is, reasonable care for his own safety and in a manner that the public entity ought to have reasonably foreseen or expected people to use the property.

Second, that the condition was one that created a reasonably foreseeable risk of the kind of injury alleged by the plaintiff. It need not be of exact, the very same kind, but it must be an injury of the same class, order or type.

Third, that the condition was either,
A, created by the negligent and wrongful act or omission of an employee or employees of the defendant City of Jersey City, within the scope of their employment, or
B, the defendant City had actual notice of the dangerous condition a sufficient time prior to the injury to have taken measures to repair, remedy or correct it, or to provide safeguards or to warn of the condition.

The defendant City had actual notice of the dangerous condition if you are satisfied it actually knew the condition existed and knew or should have known of its dangerous character. Actual notice is required because, as I indicated, this public property within Jersey City was not owned by Jersey City.

Four, that the action--that is, the action defendant City took or its failure to take action to repair, remedy or correct the condition or to provide safeguards against it or to warn of the condition--was palpably unreasonable. It must be more than merely careless or thoughtless or forgetful or inefficient. To be palpably unreasonable, it must be action or inaction that is plainly and obviously without reason or reasonable basis, capricious, arbitrary, or outrageous.

The trial judge had submitted special interrogations to the jury. Question No. 1 asked:

Do you find, with reference to the City of Jersey City, that the condition of Tonnelle Avenue was a dangerous condition of public property, as the Court has defined dangerous condition for you?

The judge then instructed the jury:

If your answer to that question [question No. 1] is no, you'll stop your deliberation and return your verdict. That would be end of the case.

During its deliberations, the jury asked:

What are all the elements that must be present to legally determine a dangerous condition?

As a response to the jury's question, the judge repeated the above instruction. The jury answered "no" to Question No. 1 by a 6-0 vote. The judge concluded the verdict supported no cause for action and handed down a judgment in favor of the City of Jersey City.

In its consideration of this instruction to the jury, the appeals court found that the judge's charge to the jury was flawed. The court pointed out, "The existence of a dangerous condition is only one of the essential elements of the cause of action against the public entity. It is not the cause of action itself." Stating that Robinson was required to prove that the highway's condition was "so extraordinary that it would not be reasonably apparent or anticipated by a careful motorist," the court cited N.J.S.A. 59:4-4 of the Tort Claims Act, N.J.S.A. 59:1-1 to 4-9:

. . . a public entity shall be liable for injury proximately caused by its failure to provide emergency signals, signs, markings or other devices if such devices were necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.

The court stated that the fact the City had actual notice of the ice on the highway was not sufficient to impose liability under N.J.S.A. 59:4-4. The court felt, "It was the icy condition of the roadway which created the emergent situation which, if the City had actual notice, might have required it to act to alleviate the condition, advise the public of its presence or close the road." Meta v. Cherry Hill, 152 N.J. Super. 228, 223, 377 A.2d 934 (App.Div), certif denied, 75 N.J. 587, 384 A.2d 818 (1977).

The court further found that the trial court's combining all the components of cause of action in the definition of "dangerous condition" produced a reversible error. According to the appeals court, "The predawn existence of a 355-foot icy patch on an otherwise dry state highway was a dangerous condition as a matter of law." This condition created a "substantial risk of injury" when the highway was used "with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1a. The court felt, "Reasonable minds could not have differed on the dangerousness of the roadway at the time and place of the accident." Johnson v. Salem Corp., 97 N.J. 78, 92, 477 A.2d 1246 (1984).

The appeals court maintained that the trial judge's instruction to the jury was an improper definition of "dangerous condition" and should not have been submitted. Moreover, where the jury was told that the highway was within the City but was not owned by the City, the jury instructions included a contradiction in the delineation of the City's responsibility toward maintaining its property. The court held that this inconsistency, along with a lack of clear instructions about the circumstances under which a municipality could be liable for injury resulting from dangerous conditions occurring on a roadway owned by another entity, was "clearly capable" of causing jury confusion and misunderstanding.

Based on improper instructions to the trial jury, the appeals court reversed the trial court's decision on October 17, 1995, and remanded the case to the Law Division for a new trial.

[For further reference, see Robinson v. City of Jersey City (N.J.Super.A.D. 1995) in West Publishing Vol. 666 Atlantic Reporter, 2nd Series, 169]

Copyright © 1998 by TranSafety, Inc.



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