New Jersey Supreme Court Gives Warning to Superior Court: Public Entity Liability is the Exception, Not the Rule

September 12, 2012

By. Seth R. Tipton

The New Jersey Supreme Court's decision to uphold the ruling of the trial court in favor of Essex County in the matter of Polzo v. County of Essex represents a significant departure from the courts' slow erosion of the sovereign immunity provisions of the New Jersey Tort Claim Act (TCA) that protect New Jersey public entities. This decision promises renewed adherence to the rule that the liability of public entities should be the exception, rather than the rule.

In August 2001, Mathi Kahn-Polzo lost control of her bicycle and crashed after hitting a one-and-one half-inch deep by two feet wide depression as she rode on Parsonage Hill Road, in Millburn Township, which was owned and maintained by Essex County. Mathi later died from the injuries she suffered in the accident. Her husband, Donald Polzo later filed suit against the County of Essex, Millburn Township and the State of New Jersey contending that the depression was a dangerous condition within the meaning of the TCA.

Plaintiff's expert claimed that the depression was present for at least two years and was a dangerous condition caused by the "erosion of the underlying subsurface" of the roadway. Because it existed for at least two years, the plaintiff contended that it should have been noticed by those responsible for maintenance of the road.

The trial court granted the County summary judgment, finding that the one-and-one half-inch depression was not "of such an obvious nature that it should have been discovered through the exercise of reasonable diligence." The court also found that the plaintiff did not have sufficient evidence to find the County's failure to repair the depression "palpably unreasonable."

The Appellate Division reversed the trial court's decision. In an opinion representative of the four decades of case law that have deteriorated the viability of the TCA sovereign immunity provisions, the panel explained that a jury could have concluded that the County's failure to have a maintenance program that called for routine inspections of the roadway for conditions that could likely result in the kind of injury sustained by Mathi was palpably unreasonable. The matter was appealed to the New Jersey Supreme Court.

On January 18, 2012 the New Jersey Supreme Court issued a unanimous decision that reversed the decision of the Appellate Division and reinstated the trial court's order granting summary judgment in favor of the County of Essex. The Supreme Court concluded that potholes and depressions are common features of our roadways that are not dangerous conditions within the meaning of the TCA "even if caused by negligent maintenance." Rejecting the Appellate Division's suggestion that a routine inspection would have located the condition, the Court reiterated that Plaintiff was required to prove that the County had actual or constructive notice of the condition. Further, the Court reminded the courts that "a public entity does not create a dangerous condition merely because it should have discovered and repaired it within a reasonable time before an accident." Notably, the Court also reasserted the essence of sovereign immunity when it recognized that it lacked "the authority or expertise to dictate to public entities the ideal form of road inspection program, particularly given the limited resources available to them." Thus, even if the County had been aware of the pothole in question, its choice not to deem it a "high priority" would not have been palpably unreasonable.

The holding in Polzo v. County of Essex may have significant impacts on the defense of public entities in the future. From a broad perspective, the Court insisted upon a detailed and rigorous application of TCA provisions, consistent with the core principles of sovereign immunity. Moreover, the Court repeatedly showed deference to the County's decisions of how to inspect and maintain the property under its control, even citing the difficulties arising from budget constraints.

The Supreme Court's stringent application of the TCA in Polzo v. County of Essex will likely give pause to attorneys considering future action against public entities in New Jersey.

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