SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4150-93T2
WALTER ROBINSON,
Plaintiff-Appellant,
v.
CITY OF JERSEY CITY,
Defendant-Respondent,
and
J & D LOFARO, INC., JOHN DOE,
fictitious and presently unknown,
JERSEY CITY WATER DEPARTMENT,
JERSEY CITY SEWERAGE AUTHORITY,
STATE OF NEW JERSEY, CITY OF
JERSEY CITY, SANITATION DIVISION,
CITY OF JERSEY CITY, COUNTY OF
HUDSON and CLIFF LAKE ASSOCIATES,
Defendants.
_________________________________________________________________
Argued: September 12, 1995 - Decided: October 17, 1995
Before Judges Dreier, A.M. Stein and Kestin.See footnote 1
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County.
Harry R. Howard argued the cause for
appellant (Harry R. Howard, P.A., attorneys;
Mr. Howard on the letter brief).
Steven J. Klotz, Assistant Corporation
Counsel, argued the cause for respondent
(Sean M. Connelly, Corporation Counsel,
attorney; Mr. Klotz on the brief).
The opinion of the court was delivered by
A.M. STEIN, J.A.D.
We reverse the verdict of no cause for action entered in
favor of defendant City of Jersey City and against plaintiff.
This is a personal injury action. The accident happened on
March 11, 1989 at approximately 6:00 a.m. Plaintiff was injured
when his vehicle skidded on a 355-foot patch of ice that had
formed on U.S. Highway 1 and 9 (also known in this area as
Tonnelle Avenue), a state highway running generally north to
south in Jersey City. Water from a broken water pipe or hose on
property located at 628 Tonnelle Avenue ran down a hill onto the
roadway causing gradual accumulation of the ice patch.
The testimony is in dispute as to when the City had actual
notice of the condition. Anthony Lombardi, the City's then-Director and Superintendent of Water Distribution, testified at
trial that he received an emergency call from the police and
shortly thereafter went to the icy area. When he arrived, the
road was already salted and a police car and a tow truck were
present. It was still dark. At an earlier deposition, Lombardi
had testified that he had received a call summoning him to
Tonnelle Avenue sometime between midnight and 1:00 a.m. At both
the deposition and the trial, he testified that he directed that
a plumber be sent to 628 Tonnelle Avenue on the plumber's first
assignment after beginning work at 8:00 a.m.
The trial judge gave the following instruction to the jury:
Now, in this case, the plaintiff alleges that the
City is responsible because of a dangerous condition
which existed on public property. And as you know, the
case involves an accident which occurred on public
property, Tonnelle Avenue, but which is a state highway.
There is no question but that the road is a public
property. But it is not owned by Jersey City, it's
owned by the state. The plaintiff charges that the
condition of the roadway on Tonnelle Avenue was a
dangerous condition of public property and that the
dangerous condition was a proximate cause of his injuries. A public entity is responsible for injuries
proximately caused by a dangerous condition of its
property.
The phrase "dangerous condition" has a particular
meaning. In order for you to find that there was a
dangerous condition of public property, you must be
satisfied by a fair preponderance of the credible
evidence that all of the following things were true at
the time of plaintiff's injury:
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 while
within Jersey City was not owned by Jersey City.
Four, that the action -- that 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.
[Emphasis added.]
Question No. 1 of the special interrogatories submitted to
the jury asked:
1. 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 jury was further instructed:
If your answer to that question is no, you'll stop
your deliberation and return your verdict. That would
be the end of the case.
During deliberations, the jury asked:
What are all the elements that must be present to
legally determine a dangerous condition?
In response, the judge repeated the previous instruction.
By a 6-0 vote, the jury answered "no" to question No. 1, and
terminated its deliberations. The judge then molded a verdict
into no cause for action in favor of the City.
The charge is flawed. Instead of defining "dangerous
condition" and listing it as an element of the cause of action,
it incorporates all of the components of the cause of action into
the definition of "dangerous condition." 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.
Plaintiff was required to prove that the icy condition of
the roadway was so extraordinary that it would not be reasonably
apparent or anticipated by a careful motorist, Rochinsky v. New
Jersey Dept. of Transp.,
110 N.J. 399, 416 (1988); that the City
had actual notice of the condition, DeBonis v. Orange Quarry Co.,
233 N.J. Super. 156, 172 (App. Div. 1989); and that it was
palpably unreasonable for the City to fail to take action with
regard to this condition once it became aware of its existence,
Meta v. Cherry Hill,
152 N.J. Super. 228, 233 (App. Div.),
certif. denied,
75 N.J. 587 (1977). The City's duty for a
dangerous condition on a roadway not owned by the City but
located within its boundaries arises pursuant to N.J.S.A. 59:4-4
of the Tort Claims Act, N.J.S.A. 59:1-1 to 4-9:
Subject to section 59:4-2 of this act, 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 fact that the City had actual notice of the condition
which caused the icing of the roadway was not itself sufficient
to impose liability under N.J.S.A. 59:4-4. 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, supra, 152 N.J. Super. at 232.
The folding of all of the components of the cause of action
into the definition of "dangerous condition" produced reversible
error. The predawn existence of a 355-foot icy patch on an
otherwise dry state highway was a dangerous condition as a matter
of law. It was 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. 59:4-1a. 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
(1984). The jury should have been instructed that the condition
was dangerous. The primary focus of the jury's inquiry should
have been to determine whether the City had actual notice of the
condition, DeBonis, supra, 233 N.J. Super. at 172, and whether it
was palpably unreasonable of the City to fail to take reasonable
action to alleviate the icy condition, advise the public of its
presence, or close Tonnelle Avenue. Meta, supra, 152 N.J. Super.
at 232.
The instruction improperly defined dangerous condition, an
issue which should not have been submitted to the jury, and it
failed to focus the jury's inquiry on the essential elements of
the cause of action. Special interrogatory No. 1 was therefore
improperly submitted to the jury. Failure to remove the issue of
dangerous condition from jury consideration was "clearly . . . a
miscarriage of justice under the law." R. 2:10-1.See footnote 2
Moreover, the instruction focused on issues germane to a
claim under N.J.S.A. 59:4-2, not N.J.S.A. 59:4-4. It started
with an explanation that "a public entity is responsible for
injuries proximately caused by a dangerous condition of its
property." (Emphasis added.) Later, the judge explained that
actual notice was required because the highway "while within
Jersey City was not owned by Jersey City." This inconsistency in
the charge was clearly capable of causing confusion and misunderstanding, especially when considered with the judge's failure to
clearly instruct the jury of the circumstances under which a
municipality could be liable for injury resulting from the
dangerous condition of a road it did not own. Bergen v.
Koppenal,
52 N.J. 478, 480 (1968).
Reversed and remanded to the Law Division for a new trial
and for further proceedings consistent with this opinion.
The plaintiff charges that
(here describe condition)
is a dangerous condition of public property and that the dangerous condition was a proximate cause of his/her injuries. A public entity is responsible for injuries proximately caused by a dangerous condition of its property. The phrase "dangerous condition" has a particular meaning. In order for you to find that there was a dangerous condition of public property, you must be satisfied by a fair preponderance of the credible evidence that all of the following things were true at the time of the plaintiff's injury:
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/her 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 exactly the very same kind, but it must be injury of the same class, order or type.
Third: The condition was either (a) created by the negligent or wrongful act or omission of an employee or employees of the defendant within the scope of his/her employment or (b) the
defendant either had actual or constructive 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 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. The defendant had constructive notice of the condition if you are satisfied the condition had existed for such a
period of time and was of such obvious nature that the public
entity, in the exercise of due and reasonable care, should have
discovered the condition and its dangerous character.
Fourth: That the action the defendant 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.
Footnote: 1Judge Kestin did not participate in oral argument. However, the parties consented to his participation in this decision. Footnote: 2The jury charge was modified from model civil jury charge No. 5.18, an instruction on liability for the dangerous condition of property owned or controlled by the public entity, governed by N.J.S.A. 59:4-2, a different section of the Tort Claims Act. The model charge also incorrectly requires the jury to consider all of the elements of the cause of action in defining the term "dangerous condition," rather than setting forth the statutory definition of dangerous condition, and listing it as a component of the cause of action. We reproduce the pertinent part of the model charge at the end of this opinion.