DANIEL J. O'BRIEN v. NEW JERSEY TURNPIKE AUTHORITY (L-5157-18, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0549-20

DANIEL J. O'BRIEN,

Plaintiff-Appellant,

v.

NEW JERSEY TURNPIKE

AUTHORITY,

Defendant-Respondent.

_________________________

Submitted December 14, 2021 – Decided January 27, 2022

Before Judges Rothstadt and Natali.

On appeal from the Superior Court of New Jersey, Law

Division, Essex County, Docket No. L-5157-18.

Alexandra Errico, attorney for appellant.

Chiesa, Shahinian & Giantomasi, PC, attorneys for

respondent (Christopher R. Paldino and Carla M.

Zavala, on the brief).

PER CURIAM

Plaintiff Daniel O'Brien appeals from an October 2, 2020 order granting

summary judgment to defendant the New Jersey Turnpike Authority (NJTA).

Plaintiff sued the NJTA and contended he sustained multiple injuries when he

lost control of his motorcycle after hitting a pothole on the New Jersey Turnpike.

The court granted the NJTA's application after concluding that the motion record

failed to create a genuine and material question of fact regarding the NJTA's

liability under the New Jersey Tort Claims Act (TCA), N.J.S.A 59:1-1 to -12-3.

We affirm.

I.

We derive the following facts from the competent evidence in the

summary judgment motion record, viewed in a light most favorable to plaintiff.

Brill v. Guardian Life Ins. of Am., 142 N.J. 520, 540 (1995). On July 25, 2016,

at or around 11:38 a.m., plaintiff was riding his motorcycle on the New Jersey

Turnpike. While approaching a toll plaza close to the Interchange Fourteen

Outside Entry Roadway, he hit a pothole near a storm drain causing him to lose

control of his motorcycle and slide approximately thirty-five feet. He was later

hospitalized with a number of broken ribs and a collapsed lung.

The New Jersey State Police promptly arrived on the scene and completed

a "crash investigation report" (police report) which included a statement from

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plaintiff that he "lost control of [his] motorcycle, [when he] hit a hole on the

roadway." The police report contained a diagram of the accident and the

following summary of the "[i]nvestigation of the scene" which provided in

relevant part that:

[plaintiff] was traveling on the New Jersey Turnpike

Interchange [Fourteen] Outside Entry Roadway. Prior

to making entry through the toll plaza, [plaintiff] struck

a hole in the middle of the roadway, subsequently

causing [him] to lose directional control of the

motorcycle and slide approximately 35 yards from the

initial impact on its right side.

Finally, the report identified a "dip in the roadway, near the drain," as an

apparent contributing circumstance of the accident.

At his deposition, plaintiff responded he was "not sure" when repeatedly

asked how the accident occurred and instead referred to the statements contained

in the police report. When pressed further by the NJTA's counsel, he claimed

not to remember the incident, but then clarified that he recalled "heading into

[the] toll plaza to pay the toll . . . when the bike just acted funny." When asked

if he "hit any potholes," plaintiff testified that he found out "afterwards" there

was a "hole in the road." Plaintiff could not recall how far he was from the toll

plaza at the time of the accident, the location of the toll plaza after the

motorcycle eventually stopped, or the distance from the pothole to the toll plaza.

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Plaintiff also testified that he did not "remember hitting the [pot]hole

when the bike started acting funny," and specifically stated that he did not know

if he "hit [the] defect in the road before the accident" because he was focused

on the toll booth. Plaintiff appeared to confirm that he had seen pictures of the

roadway defect, but stated he was unaware of who took the photographs. He

was unable to testify as to the depth of the pothole, and although he stated it was

located in the vicinity of a sewer grate, he could not provide further details as to

its location in relation to the grate.

Wayne Herring, a former NJTA Road Foreman, was also deposed.1 He

testified that he and an assistant examined roadways on a weekly basis and that

crews on the road would report "anything that needs attention." Herring also

stated that on the day of the accident, two workers from his department repaired

a pothole with a bag of cold patch. Finally, when shown photos produced by

plaintiff, Herring identified that the area depicted in the photographs was

1

As detailed, infra, at p. 5-6, the NJTA submitted portions of Herring's

deposition testimony in support of its summary judgment application. Plaintiff

did not include any additional sections of Herring's testimony when opposing

the motion, nor did he move for reconsideration of the October 2, 2020 order or

seek to supplement the record. We accordingly limit our review to the record

before us.

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Interchange Fourteen Outside Entry and that had he noticed the road defect

depicted during an inspection, his department would have repaired it.

NJTA repair logs for the day of plaintiff's accident indicated that the

NJTA received a report of a pothole at 12:20 p.m., and that workers filled it with

sixty pounds of cold patch at 12:50 p.m. The repair logs also provided that the

NJTA received no complaints of potholes in the area in the two weeks prior to

the accident, and potholes had been filled at Interchange Fourteen on June 22

and 23, 2016, about a month before the accident.

As noted, the NJTA filed a motion for summary judgment accompanied

by a fully compliant statement of undisputed material facts (SUMF) pursuant to

Rule 4:46-2. More specifically, the NJTA's SUMF included twenty-eight

separately numbered paragraphs that included statements supported by citations

to the record. That record included plaintiff's complaint, the police report, the

NJTA's repair logs, plaintiff's deposition transcript, excerpts from Herring's

deposition transcript, and the photos produced by plaintiff.

The SUMF largely recounted plaintiff's and Herring's testimony and the

information from the NJTA's repair logs. It also stated "[t]he NJTA had no

actual or constructive notice of the existence of the defect," "[n]o evidence has

been produced to show that the alleged pothole existed for such an extended

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period of time and was of such an obvious nature that the NJTA should have

discovered the condition and its dangerous character," and "[p]laintiff has

presented no evidence of any kind that the NJTA's actions or alleged failures to

protect against the dangerous condition were palpably unreasonable."

For reasons unexplained by the record, plaintiff failed to submit

opposition to the NJTA's SUMF as required by Rule 4:46-2(b). Instead, as best

we can discern from the record, he relied on the materials submitted by the

NJTA, including plaintiff's deposition testimony and the unauthenticated

photographs shown to Herring at his deposition.

On October 2, 2020, after hearing oral arguments, the motion judge issued

an order and written opinion granting the NJTA's motion. He first explained

plaintiff did not dispute the NJTA's SUMF under Rule 4:46-2(b) and such a

failure "constitute[d] an admission of all the material facts [the NJTA] included

in its [SUMF]." He reasoned that plaintiff's "potentially fatal misstep ,"

"work[ed] a grave harm to his opposition because it in essence concede[d] facts

that undermine[d], if not eviscerate[d], any argument that the elements of his

cause of action [were] present on [the] record." Despite finding that plaintiff's

failure to dispute the NJTA's SUMF "arguably end[ed] the need for extensive

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further analysis," the judge nevertheless addressed the substance of plaintiff's

opposition.

On the merits, the judge determined plaintiff failed to establish the

existence of a factual question that the alleged defect in the roadway constituted

a dangerous condition reasoning that "there is simply no quantifiable, objective

evidence describing or supporting the existence of the alleged defect." In so

concluding, he found that "[t]he only supposedly objective evidence are

photographs produced by plaintiff that were never authenticated," and as such

they were "not competent evidence of the location of [p]laintiff's accident, no

less the specific condition defect that allegedly caused his accident."

The judge further explained that plaintiff could not say where, when, or

by whom the photos were taken, could not "provide a meaningful description of

the supposed defect," and "did not see [the alleged defect] before his accident."

He stated that "other than what the plaintiff himself saw in the photographs, it

is clear from plaintiff's deposition that he never saw the supposed condition

which caused his accident."

The judge also addressed the evidentiary value of the police report,

concluding that it was not "competent evidence because it is hearsay when

offered by the plaintiff for the truth of the matter asserted." He explained that

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"[t]he State Trooper who drafted the report was not deposed" and that "the report

is not a first-hand account of what the State Trooper observed but more likely

was [what] he was told or surmised." The judge also noted "[t]he record lacks

any explanation of what he meant by 'dip in the roadway.'" As such, he found

that "[w]hile the report itself may be evidentiary, hearsay statements within it

are not." The judge therefore concluded, relying in part on Polzo v. County of

Essex, 209 N.J. 51 (2012), that "[p]laintiff's bare and unsupported allegation that

there was a 'hole' in the roadway, without more, is plainly insufficient to carry

his burden of proving a 'dangerous condition' under the TCA."

The judge next determined that plaintiff failed to establish that the alleged

defect proximately caused his accident. He reasoned that "[p]laintiff doesn 't

know if he in fact encountered the hole that is supposedly the dangerous

condition that caused his accident," based on his testimony that he did not

remember seeing or hitting a defect in the road.

The judge also concluded that the NJTA lacked actual or constructive

notice of the alleged defect. First, he found that repairs conducted in "the

general vicinity of plaintiff's accident" a month prior to the accident had no

bearing on the NJTA's constructive notice of roadway defects existing the time

of the accident. Second, the judge noted that Herring's testimony and the NJTA's

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repair logs "indicate[d] that NJTA did not receive any reports of a potho le on

Interchange [Fourteen] for the two weeks immediately preceding the accident."

Further, despite stating it was a "closer call," the judge found that the July

25, 2016 pothole repair did not constitute evidence of constructive notice

because of the "lack of any evidence at all that the pothole then repaired was the

one plaintiff encountered or the one in the cited photographs." He explained

that plaintiff did not "establish that it was the condition at issue and, even if it

was, that it 'existed for such a time and was of such a dangerous nature that the

public entity in exercising due care, should have discovered the condition and

its dangerous character.'"

Finally, the judge found that the NJTA's actions were not palpably

unreasonable. He first explained that "[a]lthough the question of palpably

unreasonable conduct is ordinarily one of fact, our courts will grant summary

judgment on this ground where the record is devoid of sufficient factual support

to allow the question to go before the jury." Finding that the NJTA was not on

notice of the accident and plaintiff failed to provide evidence such as prior

accidents or complaints, the judge determined that plaintiff "presented

insufficient evidence to establish that the NJTA's actions or failures to protect

against the dangerous condition were palpably unreasonable."

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This appeal followed in which plaintiff repeats many of the arguments he

made before the motion judge. Specifically, he first argues the judge erred in

determining plaintiff's failure to dispute the facts contained in the NJTA's SUMF

constituted an admission under Rule 4:46-2(b), claiming the judge failed to

evaluate whether the alleged facts were "sufficiently supported," and that his

opposition to the motion essentially disputed the NJTA's SUMF.

Second, he claims the judge erroneously determined the contents of the

police report were inadmissible hearsay and the photos alleged to depict the road

defect were unauthenticated. Finally, he argues the evidence in the record

created an issue of fact regarding each element required to establish liability

under N.J.S.A. 59:4-2.

II.

We "review[] de novo the . . . entry of summary judgment," Manahawkin

Convalescent v. O'Neill, 217 N.J. 99, 115 (2014), applying "the same standard

as the trial court," Conley v. Guerrero, 228 N.J. 339, 346 (2017). Summary

judgment is appropriate if the record demonstrates there is "no genuine issue as

to any material fact challenged and that the moving party is entitled to a

judgment or order as a matter of law." R. 4:46-2(c); Ben Elazar v. Macrietta

Cleaners, Inc., 230 N.J. 123, 135 (2017). When determining whether there is a

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genuine issue of material fact, we must consider "whether the competent

evidential materials presented, when viewed in the light most favorable to the

non-moving party, are sufficient to permit a rational factfinder to resolve the

alleged disputed issue in favor of the non-moving party." Brill, 142 N.J. at 540.

If no genuine issue of material fact exists, the inquiry turns to "whether

the trial court correctly interpreted the law." DepoLink Ct. Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We

owe no deference to the trial court's legal analysis or conclusions. The Palisades

At Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 442

(2017).

"When . . . a trial court is 'confronted with an evidence determination

precedent to ruling on a summary judgment motion,' it 'squarely must address

the evidence decision first.'" Townsend v. Pierre, 221 N.J. 36, 53 (2015)

(quoting Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 384-85

(2010)). Our review of a trial court's disposition on a summary judgment motion

"proceeds in the same sequence, with the evidentiary issue resolved first,

followed by the summary judgment determination of the trial court." Ibid.

"[T]he decision to admit or exclude evidence is one firmly entrusted to the t rial

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court's discretion." Estate of Hanges, 202 N.J. at 383-84. Therefore, we review

a trial court's "[e]videntiary decisions . . . under [an] abuse of discretion

standard." Id. at 383 (applying a de novo review to the greater issue of the trial

court's decision on a motion for judgment only after applying the more

deferential abuse of discretion standard to an evidentiary ruling).

Public entity liability is restricted under the TCA. See Polzo, 209 N.J. at

55. Generally, a public entity is "immune from tort liability unless there is a

specific statutory provision imposing liability." Kahrar v. Borough of

Wallington, 171 N.J. 3, 10 (2012) (citing Collins v. Union Cty. Jail, 150 N.J.

407, 413 (1997)); see also N.J.S.A. 59:1-2, 2-1. Accordingly, "immunity for

public entities is the general rule and liability is the exception." Kemp by Wright

v. State, 147 N.J. 294, 299 (1997); accord D.D. v. Univ. of Med. & Dentistry of

N.J., 213 N.J. 130, 134 (2013) (describing that rule as the "guiding principle" of

the TCA (quoting Coyne v. State Dep't of Transp., 182 N.J. 481, 488 (2005)).

Under the TCA:

A public entity is liable for injury caused by a condition

of its property if the plaintiff establishes that the

property was in dangerous condition at the time of the

injury, that the injury was proximately caused by the

dangerous condition, that the dangerous condition

created a reasonably foreseeable risk of the kind of

injury which was incurred, and that either:

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a. a negligent or wrongful act or omission of an

employee of the public entity within the scope of his

employment created the dangerous condition; or

b. a public entity had actual or constructive notice of

the dangerous condition under section 59:4-3 a

sufficient time prior to the injury to have taken

measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose

liability upon a public entity for a dangerous condition

of its public property if the action the entity took to

protect against the condition or the failure to take such

action was not palpably unreasonable.

[N.J.S.A. 59:4-2.]

Thus, in order to succeed on a claim against a public entity, 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

caused, 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. Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003).

Plaintiff's obligation to demonstrate these elements is a "heavy burden." Foster

v. Newark Hous. Auth., 389 N.J. Super. 60, 65-66 (App. Div. 2006).

We have considered plaintiff's contentions in light of our de novo review

of the record and the applicable legal principles and conclude they are without

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merit. We agree that summary judgment was appropriate because plaintiff did

not establish that the pothole was a dangerous condition, and even assuming the

motion record created a factual question on that issue, there was no support for

plaintiff's contention that the NJTA had actual or constructive notice, or that its

actions were palpably unreasonable. In light of our decision, we do not address

the motion judge's conclusion that the motion record also failed to establish a

genuine and material question of fact as to proximate cause.

III.

We first address, and reject, plaintiff's contention that the judge erred

when he concluded plaintiff's failure to dispute the NJTA's SUMF constituted

an admission of the facts asserted by the NJTA.

Rule 4:46-2 clearly requires that a motion for summary judgment be

supported by a statement of material facts which "cit[es] to the portion of the

motion record establishing [each] fact or demonstrating that [each fact] i s

uncontroverted." R. 4:46-2(a). "[A] party opposing a motion for summary

judgment [must] 'file a responding statement either admitting or disputing each

of the facts in the movant's statement.'" Claypotch v. Heller, Inc., 360 N.J.

Super. 472, 488 (App. Div. 2003) (quoting R. 4:46-2(b)). "[A]ll material facts

in the movant's statement which are sufficiently supported will be deemed

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admitted for purposes of the motion only, unless specifically disputed by citation

conforming to the requirements of paragraph (a) demonstrating the existence of

a genuine issue as to the fact." R. 4:46-2(b).

Here, we conclude that the NJTA fully complied with Rule 4:46-2(a) when

it supported its summary judgment record with a fully compliant SUMF. At that

point, plaintiff's obligations as mandated by Rule 4:46-2(b) were simple and

clear — he was obligated to "file a responding statement either admitting or

disputing each of the facts in the movant's statement." In addition, plaintiff also

was obligated, as appropriate, to include in the responding statement "in

separately numbered paragraphs together with citations to the motion record ,"

"additional facts" that he contended were "material and as to which there exists

a genuine issue." Absent such compliance, the Rule permits trial courts to do

precisely what the motion judge did here — deem each sufficiently supported

statement admitted.

In light of plaintiff's burden to prove each element of his TCA claim, we

agree with the judge that his failure to dispute the SUMF was a "fatal misstep,"

because it "in essence concede[d] facts that undermine[d], if not eviscerate[d]

any argument that the elements of his cause of action [were] present on this

record." By way of example, the NJTA's SUMF included supported facts,

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namely Herring's deposition and the NJTA repair logs, to support its contention

that it was not on actual or constructive notice of the alleged defect and its

conduct was not palpably unreasonable.

Plaintiff also failed to include any additional materials that it contends the

judge should have considered, such as additional portions of Herring's

deposition. As such, we find no error in the judge's conclusion that plaintiff's

failure to properly oppose the NJTA's summary judgment motion was a

significant procedural error. In any event, for purposes of completeness, we

nevertheless address plaintiff's arguments on the merits, as did the motion judge,

and conclude they are without merit, albeit for slightly different reasons.

IV.

We agree, in part, with plaintiff's challenges to the judge's evidentiary

rulings. Specifically, plaintiff argues the contents of the police report were

admissible as exceptions to the rule against hearsay, N.J.R.E. 802, as a record

of a regularly conducted activity, N.J.R.E. 803(c)(6), 2 and a public record,

2

N.J.R.E. 803(c)(6), Records of Regularly Conducted Activities provides:

A statement contained in a writing or other record of

acts, events, conditions, and, subject to Rule 808,

opinions or diagnoses, made at or near the time of

observation by a person with actual knowledge or from

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N.J.R.E. 803(c)(8). 3 Second, he contends the photos of the alleged defect were

admissible because they were authenticated by "the totality of the evidence

before the court." We agree with plaintiff that certain of the statements in the

police report constituted admissible hearsay, but disagree that the judge erred in

excluding consideration of the photographs as evidential to the alleged

dangerous condition as they were not properly authenticated.

As to the police report, it is well settled that a police report is generally

"admissible as a record of a regularly conducted activity, commonly known as

a business record, N.J.R.E. 803(c)(6), and as a public record, N.J.R.E.

information supplied by such a person, if the writing or

other record was made in the regular course of business

and it was the regular practice of that business to make

such writing or other record.

3

N.J.R.E. 803(c)(8), Public Records, Reports, and Findings provides:

(A) a statement contained in a writing or other record

made by a public official of an act done by the official

or an act, condition, or event observed by the official if

it was within the scope of the official's duty either to

perform the act reported or to observe the act,

condition, or event reported and to make the written

statement; or

(B) statistical findings of a public official based upon a

report of or an investigation of acts, conditions, or

events, if it was within the scope of the official's duty

to make such statistical findings.

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803(c)(8)." Manata v. Pereira, 436 N.J. Super. 330, 345 (App. Div. 2014). Such

reports may be admissible to show, for example, a person spoke to an officer,

ibid., or that a report of a crime was made and the time of the report, State v.

Lungsford, 167 N.J. Super. 296, 310 (App. Div. 1979). If a proponent seeks to

admit the report to prove the truth of a declarant's statement contained in the

document, however, the declarant's statement is embedded hearsay and requires

a separate hearsay exception for that statement to be admissible evidence. See

N.J.R.E. 805; Manata, 436 N.J. Super. at 345; Konop v. Rosen, 425 N.J. Super.

391, 402-03 (App. Div. 2012).

Here, we conclude that it was erroneous for the judge to conclude that the

entire police report consisted inadmissible hearsay. Indeed, the report was the

result of the State Trooper's investigation and contained the State Trooper's

percipient observations including that there was a "dip in the roadway, near the

drain." See, e.g., Brown v. Mortimer, 100 N.J. Super. 395, 405-06 (App. Div.

1968) (finding a diagram of an automobile accident contained in a police report

admissible as a business record where the diagram was based on an officer's

observation of skid marks and the position of vehicles after the accident).

However, the judge's error in excluding the entire report from his summary

judgment calculus has no effect on our decision as the information in the report,

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at best, addressed the proximate cause issue. The report, individually, and in

context of the other competent evidence in the motion record, does not establish

the existence of a dangerous condition, that the NJTA had actual or constructive

notice, or that it acted in a palpably unreasonable manner.

We agree with the judge's decision, however, with respect to the

photographs shown to Herring at his deposition. As he correctly concluded, the

photographs that purported to depict the pothole were unauthenticated and,

therefore, inadmissible.

The admissibility of a photograph rests upon whether it fairly and

accurately depicts what it purports to represent. See N.J.R.E. 901. Any witness

with knowledge of the facts represented by the photograph may establish the

necessary foundation to authenticate a photograph. State v. Wilson, 135 N.J. 4,

14 (1994). Consistent with N.J.R.E. 901, the witness must establish first that

"the photograph is an accurate reproduction of what it purports to represent" and

second "that the reproduction is of the scene at the time of the incident in

question, or, in the alternative, the scene has not changed between the time of

the incident in question and the time of the taking of the photograph." Id. at 15.

Here, while Herring testified that the photos depicted Interchange

Fourteen, nothing in the record indicated that the photos were of the alleged

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defect in question at the time of the accident. Further, the record does not

establish when, by whom, or under what circumstances the photos were taken.

In fact, the motion record revealed that the NJTA repaired a pothole on

Interchange Fourteen approximately one hour after plaintiff's accident,

undermining any claim, without a proper foundation, that the photographs

accurately depicted the pothole at the time of plaintiff's accident.

V.

Finally, plaintiff argues that the record established genuine and material

factual issues regarding each element required to establish liability under the

TCA. We disagree that plaintiff established an issue of fact regarding whether

the road was in a dangerous condition, whether the NJTA was on notice of the

alleged dangerous condition, and whether the NJTA acted in a palpably

unreasonable manner. As such, and as noted, we need not reach the issue of

whether the alleged dangerous condition proximately caused plaintiff's injury.

A. Dangerous Condition

We agree with the judge that the motion record failed to create a genuine

dispute that the pothole constituted a dangerous condition. A "[d]angerous

condition" is a defined term and "means a condition of property that creates a

substantial risk of injury when such property is used with due care in a manner

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in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4 -1(a).

A "'substantial risk' . . . is not minor, trivial, or insignificant." Polyard v. Terry,

160 N.J. Super. 497, 509 (App. Div. 1978). In Polzo, our Supreme Court

explained that "not every defect in a highway, even if caused by negligent

maintenance, is actionable," 209 N.J. at 64 (quoting Polyard, 160 N.J. Super. at

508), and further noted that testimony that a "depression would have been

repaired if the [public entity] 'had knowledge of it' does not mean . . . that the

depression represented a dangerous condition of property within the meaning of

the TCA." Id. at 73-74.

As the judge correctly determined, neither the police report nor plaintiff's

or Herring's testimony provide any details about the size of the pothole or when

it was created. Nor do the photographs illuminate that issue because, as noted,

they are unauthenticated without the necessary foundation to establish when,

and under what circumstances, the photographs were taken. Finally, even the

statement in the police report that there was "a dip in the roadway" does not

establish that the "dip" constituted a dangerous condition.

B. Actual or Constructive Notice

Plaintiff's argument that the NJTA was on actual or constructive notice of

the pothole as a dangerous condition is equally unavailing. Specifically, he

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asserts that because the NJTA repaired potholes on Interchange Fourteen

approximately one month before plaintiff's accident and examined the road at

least once a week, a factual issue existed as to whether they "should have

discovered an obviously dangerous condition prior to the accident."

"A public entity shall be deemed to have actual notice of a dangerous

condition . . . if it had actual knowledge of the existence of the condition and

knew or should have known of its dangerous character." N.J.S.A. 59:4-3(a). "A

public entity shall be deemed to have constructive notice of a dangerous

condition . . . only if the plaintiff establishes that the condition had 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." N.J.S.A. 59:4-3(b).

"The mere '[e]xistence of an alleged dangerous condition is not

constructive notice of it.'" Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238,

243 (App. Div. 2013) (alteration in original) (quoting Sims v. City of Newark,

244 N.J. Super. 32, 42 (Law Div. 1990)). "Whether a public entity is on actual

or constructive notice of a dangerous condition is measured by the standards set

forth in N.J.S.A. 59:4-3(a) and (b), not by whether [for example] 'a routine

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inspection program' by the [public entity] . . . would have discovered the

condition." Polzo, 209 N.J. at 68.

First, the record contains no evidence that the NJTA was on actual notice

of the alleged defect. Second, as to constructive notice, we are satisfied that the

record and any reasonable inferences to be drawn therefrom failed to create a

genuine and material question of fact on that issue as well. Indeed, the record

is 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. Moreover, 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." See N.J.S.A. 59:4-3(b); Polzo, 209 N.J.

at 67-68 ("If failing to discover a dangerous defect in public property were the

equivalent of creating the defect, the Legislature would have had no need to

provide for liability based on actual or constructive notice.").

Further, and as aptly explained by the judge, the fact that the NJTA

repaired potholes in the general area of plaintiff's accident approximately one

month prior in no way suggests that they were on notice of a defect at the time

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of the accident. Rather, Herring's testimony and the NJTA repair logs indicated

that the NJTA received no complaints of potholes on Interchange Fourteen for

at least two weeks prior to plaintiff's accident. Finally, the fact that the NJTA

regularly examined the roadway in question does not establish constructive

notice when the record is devoid of any competent evidence of the size or age

of the alleged defect.

C. Palpable Unreasonableness

Finally, plaintiff's arguments that the NJTA acted in a palpably

unreasonable manner are also unpersuasive. Specifically, he claims "the

evidence submitted to the lower [c]ourt . . . created an issue of fact with regard

to whether the failure to repair the defect was palpably unreasonable." Second,

plaintiff contends that because the NJTA asserted a "resource allocation

immunity" affirmative defense under N.J.S.A. 59:2-3(d),4 it bore the burden of

4

N.J.S.A. 59:2-3(d) provides:

A public entity is not 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 that

the determination of the public entity was palpably

unreasonable. Nothing in this section shall exonerate a

public entity for negligence arising out of acts or

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proving its conduct was not palpably unreasonable, pursuant to Fox v.

Parsippany-Troy-Hills Twp., 199 N.J. Super. 82, 91 (App. Div. 1985).

The term "palpably unreasonable" implies "behavior that is patently

unacceptable under any given circumstance." Muhammad, 176 N.J. at 195; see

also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (to constitute

palpably unreasonable conduct, "it must be manifest and obvious that no prudent

person would approve of [the] course of action or inaction" (quoting Kolitch v.

Lindedahl, 100 N.J. 485, 493 (1985))). Further, palpably unreasonable conduct

"implies a more obvious and manifest breach of duty" than negligence and

"imposes a more onerous burden on the plaintiff." Williams v. Town of

Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979).

Whether a public entity's behavior was palpably unreasonable is generally

a question of fact for the jury. See Vincitore v. N.J. Sports & Exposition Auth.,

169 N.J. 119, 130 (2001). However, a determination of palpable

unreasonableness, "like any other fact question before a jury, is subject to the

court's assessment whether it can reasonably be made under the evidence

presented." Maslo v. City of Jersey City, 346 N.J. Super. 346, 351 (App. Div.

omissions of its employees in carrying out their

ministerial functions.

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25

2002) (quoting Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452

(App. Div. 1993)). Accordingly, "the question of palpable unreasonableness

may be decided by the court as a matter of law in appropriate cases." Id. at 350

(citing Garrison v. Twp. of Middletown, 154 N.J. 282, 311 (1998)).

Here, the record is barren of proof directly or circumstantially supporting

the claim 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. Nor did plaintiff's proofs contain evidence suggesting a

history of accidents or complaints. See Carroll v. New Jersey Transit, 366 N.J.

Super. 380, 390-91 (App. Div. 2004) (holding "plaintiff's claims of palpable

unreasonableness presented no jury question" where "the record [was] devoid of

any evidence of a history of similar incidents or complaints, or a demonstrable

pattern of conduct or practice").

Plaintiff's claim that the burden of palpably unreasonableness should have

been placed on the NJTA due to its assertion of a resource allocation immunity

defense is also unavailing. First, it does not appear that plaintiff raised this

argument below, as it was not discussed at oral argument or in the judge's written

decision, in which he described plaintiff's argument as merely "falling back on

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a generalized dispute of fact argument" and we could therefore decline to

address the argument. See State v. Robinson, 200 N.J. 1, 18-20 (2009).

In any event, we find plaintiff's reliance on Fox unpersuasive. In Fox, the

court concluded "that the burden of proof [regarding palpably unreasonable

conduct should] be placed on the public entity only where the resource allocation

immunity afforded by N.J.S.A. 59:2–3(d) is raised as an affirmative defense."

199 N.J. Super. at 91.

We find Fox unavailing here for three reasons. First, the judge did not

rely on the NJTA's resource allocation defense in granting summary judgment.

Second, we rejected the Fox approach in Lopez v. City of Elizabeth, 245 N.J.

Super. 153, 161-63 (App. Div. 1991), where we held that when a public entity

asserts a resource allocation immunity defense "plaintiff retains the burden of

proving that defendant's conduct was palpably unreasonable." Finally, even if

the burden of proof should have been placed on the NJTA, we are satisfied that

they carried that burden.

Considering our decision that plaintiff failed to establish the existence of

a dangerous condition, that the NJTA had either actual or constructive notice of

the alleged dangerous condition, or that its actions were palpably unreasonable,

we need not reach the judge's determination that plaintiff's proofs also failed to

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27

create a genuine and material question of fact that the alleged dangerous

condition was the proximate cause of plaintiff's accident.

Finally, to the extent we have not addressed any of the parties' remaining

arguments it is because we have determined that they are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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