holding that “before a plaintiff may prevail against a public entity on the ground that it failed to protect against a dangerous condition of public property, the plaintiff must prove that ... ‘[the] public entity had actual or constructive notice of the dangerous condition ... a sufficient time prior to the injury to have taken measures to protect against the dangerous condition’ ” (quoting N.J.S.A. 59:4-2(b); emphasis supplied)
How later courts described this case
- holding that “before a plaintiff may prevail against a public entity on the ground that it failed to protect against a dangerous condition of public property, the plaintiff must prove that ... ‘[the] public entity had actual or constructive notice of the dangerous condition ... a sufficient time prior to the injury to have taken measures to protect against the dangerous condition’ ” (quoting N.J.S.A. 59:4-2(b); emphasis supplied)
- “Complaints … about a dangerous condition may serve to establish actual or constructive notice … of that condition …. but [such conditions] cannot serve as notice of a [dangerous condition] at a different location.” (emphases in original)
Written by the judges who cited it.
The opinion
*453 STEIN, J.,
concurring.
I join the Court’s opinion to the extent that it holds that the Borough of Leonia was subject to liability if the curb in front of plaintiffs’ dwelling constituted a dangerous condition of public property within the meaning of N.J.S.A. 59:4-2. I would affirm the judgment of the Appellate Division, however, and remand the matter for trial because in my view the Court’s conclusion that the municipality had neither actual nor constructive notice of the dangerous condition is premature.
N.J.S.A. 59:4-3 defines actual and constructive notice for purposes of public entity liability, pursuant to N.J.S.A. 59:4-2:
59:4-3. Actual notice; constructive notice
a. A public entity shall be deemed to have actual notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
b. A public entity shall be deemed to have constructive notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 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.
[Emphasis supplied.]
The briefs in opposition to the Borough’s motion for summary judgment included excerpts from the deposition of Angela Norris who testified that the curbing abutting her property was significantly deteriorated, and assert that the condition had persisted without remedy for a number of years. Moreover, in their brief opposing summary judgment, plaintiffs noted that defendants had failed to answer interrogatories propounded in April 1996, and also had indicated that the Borough of Leonia did not possess any documents responsive to plaintiffs’ demand for records of complaints about sidewalks, streets and curbing within 1000 feet of plaintiffs’ residence for the preceding two years. Plaintiffs emphasized their desire to take the depositions of Borough officials in order to explore the question of actual or constructive notice, specifically making reference to the Borough’s acknowledgment during the argument of the motion for summary judgment that *454 the DPW was aware of a complaint made by a neighbor of plaintiff concerning defective curbing abutting his residence.
This record demonstrates that the Law Division judge who granted defendants’ motion for summary judgment focused almost entirely on the immunity question and not on the issue of actual or constructive notice. Based on the incomplete state of the record before this Court, I am convinced that we are not sufficiently informed to resolve the notice issue as a matter of law, an issue that was not addressed specifically either by the Appellate Division or the Law Division. This Court should not rush to sustain the grant of summary judgment on a record that contains a strong suggestion of the need for further discovery and case management, especially where the legal issue deemed decisive by the Court is one that the lower courts never saw fit to address. Accordingly, I would remand the matter to the Law Division for further proceedings and permit that court to determine whether further discovery on the question of actual or constructive notice would be appropriate.
For reversal and remandment■ — Chief Justice PORITZ and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI,
STEIN and COLEMAN — 7.
Opposed — None.