# Norris v. Borough of Leonia

> Supreme Court of New Jersey · July 26, 1999 · 160 N.J. 427

URL: https://www.frixlaw.com/law-library/cases/9693217

## Case

- **Full name:** Angela Norris and George Norris, Plaintiffs-Respondents, v. Borough of Leonia, Defendant-Appellant, and John Doe (Said Name Being Fictitious and Unknown), John Roe (Said Name Being Fictitious and Unknown), Roe Doe (Said Name Being Fictitious and Unknown), Defendants
- **Court:** Supreme Court of New Jersey
- **Decided:** July 26, 1999
- **Citations:** 160 N.J. 427; 734 A.2d 762; 1999 N.J. LEXIS 843
- **Precedential status:** Published
- **Opinion:** Concurrence by Stein
- **Judges:** Handler, O'Hern
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9693217

## How later opinions describe it (automated extraction)

- 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 ..…

## Opinion text

*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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9693217. Public record. Not legal advice.