NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0892-24
GALINA BENIMOVICH,
Plaintiff-Appellant,
v.
BOROUGH OF MONTVALE and TOWNSHIP OF RIVER VALE,
Defendants-Respondents. ____________________________
Argued November 10, 2025 – Decided January 7, 2026
Before Judges Sabatino and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7974-21.
Kris A. Krause argued the cause for appellant (Fredson Statmore Bitterman, LLC, attorneys; Kris A. Krause, on the briefs).
Mary C. McDonnell argued the cause for respondents (Pfund McDonnell, PC, attorneys; Mary C. McDonnell, of counsel and on the brief; David T. Pfund, of counsel; David Guzik, on the brief).
PER CURIAM The case arises from plaintiff Galina Benimovich's claim that she tripped
and fell as a result of a pothole located in the roadway of her daughter's
residential neighborhood, causing her to sustain injuries. Plaintiff appeals from
an order entered on November 22, 2024 granting summary judgment in favor of
defendants Borough of Montvale and Township of River Vale (collectively
"defendants") and dismissing her personal injury complaint on the grounds she
did not satisfy the requirements of the Tort Claims Act ("TCA"), N.J.S.A. 59:4-
2 to -10. Plaintiff argues the court erred in granting summary judgment because
several factual disputes remain, including whether the pothole in the roadway
constituted a dangerous condition, particularly given the absence of a sidewalk,
and whether defendants had actual or constructive notice of the condition with
sufficient specificity and failed to make timely repairs to the pothole. We
affirm.
I.
The relevant facts are not substantially in dispute. In May 2021, plaintiff
tripped and fell in the roadway of a residential street in the Borough of Montvale
while walking with her daughter. The area where plaintiff fell lacks public
A-0892-24 2 sidewalks and borders property owned by her daughter, Helen Merritt.1
According to plaintiff, she tripped on a depression in the roadway and fell in
such a way that she suffered a right wrist fracture and right shoulder tear,
requiring surgical repair.2
At the time of plaintiff's fall, defendants were operating under a Shared
Services Agreement, under which the Borough of Montvale dissolved its
Department of Public Works ("DPW") and the Township of River Vale's DPW
assumed responsibility for street repair and maintenance throughout the
Borough of Montvale.3 The Shared Services Agreement and its 2019 addendum
("the Agreement") required asphalt pothole repairs within the Borough of
Montvale to be completed "[p]er the street maintenance schedule," and "[a]s
reported by residents or commuters."
1 Plaintiff identified the street as Hickory Hill. According to plaintiff, none of the streets surrounding Hickory Hill have sidewalks and pedestrians are forced to use the roadway, and are thus, foreseeable users of the streets. 2 The terms "pothole" and "depression" are used interchangeably in the parties' briefs. 3 The Agreement appointed the Township of River Vale as the lead agency responsible for ensuring that DPW services were provided to both municipalities. A-0892-24 3 Soon after her fall, plaintiff retained engineer Scott D. Moore, P.E. to
perform an inspection of the area where she fell. Moore authored a report in
which he noted the depression in the roadway measured approximately thirty-
four inches in length and thirteen inches in width, and up to one and one-half
inches in depth. He concluded:
had the subject area been adequately inspected, repaired, monitored, and maintained reasonably safe and in compliance with cited documentation, the subject depression in the roadway caused by the presence of the pothole would have been corrected and [plaintiff] would not have been caused to trip and fall and sustain injuries.
Further the horrendous condition of the roadway and multiple repaired and unrepaired potholes show a clear knowledge and systemic patently unreasonable failure to make permanent and timely repairs.
After serving a tort claims notice, plaintiff sued defendants, alleging
negligent failure to maintain the roadway in a safe condition and sought damages
for her injuries.4 Plaintiff invoked the TCA, alleging defendants' poor
4 The TCA notice is not in the record before us but neither party disputes timely service under N.J.S.A. 59:8-8.
A-0892-24 4 maintenance of the roadway created a dangerous condition that was a proximate
cause of her fall and resulting injuries. 5
Under the Shared Services Agreement, Superintendent Richard
Campanelli was responsible for roadway inspection and maintenance in both
municipalities. According to Campanelli and the Agreement, pothole repairs
were performed as needed based on a combination of routine sweeper
inspections, reports by residents, and employee observations. Defendants'
records show multiple pothole complaints and repairs on Hickory Hill between
2014 and 2020, and again in 2022. However, there were no similar complaints,
documents, or reports pertaining to a depression or roadway defect in 2021
around the time of plaintiff's fall.
A lengthy period of discovery ensued, with the parties conducting
depositions of plaintiff and Campanelli. In his deposition, Campanelli noted
that the DPW prioritized addressing larger, more serious potholes—typically
hazards three to four inches deep—while shallower depressions were not
deemed a priority for immediate repair and were sometimes categorized as "wish
list" items rather than emergencies. For a defect to be considered an
5 Neither party disputes that the pothole was the proximate cause of plaintiff's injury. A-0892-24 5 "emergency" requiring urgent attention, Campanelli testified it would have to
be "[o]ne that would take out a tire. One that would take [out] a bicycle. One
that would cause harm to the public. Not something an inch deep." When asked
what standard, if any, was used to identify hazards to pedestrians specifically on
streets without sidewalks, Campanelli testified, "I can't really answer that
question." As to what constitutes a pothole, Campanelli clarified, "[t]hey are
typically three or four inches deep and it's the size of a pot . . . which can take
out a tire or a bicycle or be considered a tripping hazard."
Moore, plaintiff's engineering expert, stated in his report that he inspected
the scene and opined that any vertical elevation change exceeding one-quarter
of an inch presents a tripping hazard for pedestrians, and that the subject
depression far exceeded this threshold. Moore further identified evidence of
pavement distress in the same location, dating back to at least 2018, and found
the depression to be "a clear warning sign that the roadway's asphalt had
completely failed."
In the years preceding the incident, annual pothole spreadsheets prepared
by Campanelli documented several reports and repairs to potholes along Hickory
Hill between 2014 and 2020. However, no report was produced for 2018, and
Campanelli admitted he could not account for the missing year or
A-0892-24 6 inconsistencies in recordkeeping. Testimony further established that DPW's
Advisory Committee, specified in the Agreement to ensure quality and
oversight, had not met in recent years as required.
Defendants moved for summary judgment, arguing plaintiff was unable to
establish the pothole at issue constituted a dangerous condition, as required by
the TCA. After the discovery end date, plaintiff filed an affidavit from her
daughter, along with her opposition to defendants' motion. The affidavit stated
she had lived on Hickory Hill since 2012 and had observed the depression in the
roadway for years before the incident, and made multiple complaints to
defendants about the condition of the roadway.
Following oral arguments on the motion, the court delivered an oral
decision granting summary judgment in defendants' favor. The court found
plaintiff fell and was injured, which was not disputed by defendants; and the
depression in the roadway exists, although it decided it is a "mere imperfection"
and does not constitute a dangerous condition. The court explained the TCA's
requirements and concluded that "in a light most favorable to the nonmoving
party, . . . [b]ased on the [c]ourt's review of the record here, . . . no reasonable
. . . jury could find that . . . each of the criteria of the T[CA] have been or could
be proven at the time of trial." Plaintiff failed to establish: (1) the depression
A-0892-24 7 constituted a "dangerous condition" as defined by the TCA, (2) defendants had
actual or constructive notice of the specific defect in sufficient time to remedy
it, and (3) defendants' failure to remediate the depression was "palpably
unreasonable" in light of resource constraints, competing priorities, and the
nature and location of the roadway depression. The court found plaintiff's proofs
fell short on the issue of defendants' notice of this particular pothole, and
plaintiff's daughter's affidavit was "at odds with the testimony of plaintiff"
regarding whether this pothole had been reported to the municipality. This
appeal followed.
II.
We review the disposition of a summary judgment motion de novo,
applying the same standard used by the motion judge. Townsend v. Pierre, 221
N.J. 36, 59 (2015). Like the motion judge, we view "the competent evidential
materials presented . . . in the light most favorable to the non-moving party, [and
determine whether they] are sufficient to permit a rational factfinder to resolve
the alleged disputed issue in favor of the non-moving party." Town of Kearny
v. Brandt, 214 N.J. 76, 91 (2013) (quoting Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995)); see also R. 4:46-2(c).
A-0892-24 8 If "the evidence 'is so one-sided that one party must prevail as a matter of
law,'" courts will "not hesitate to grant summary judgment." Brill, 142 N.J. at
540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). When
the moving party has carried its burden, the party opposing summary judgment
"must do more than simply show that there is some metaphysical doubt as to the
material facts. . . . Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'"
Alfano v. Schaud, 429 N.J. Super. 469, 474-75 (App. Div. 2013).
As for the TCA, we are mindful "[t]he Legislature passed the TCA after
[our Supreme] Court abolished the common law doctrine of sovereign
immunity." Stewart v. N.J. Tpk. Auth., 249 N.J. 642, 655 (2022) (citing
Vincitore ex rel. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 124
(2001)). "In doing so, the Legislature provided that public entities could be held
liable for negligence 'within the limitations of [the TCA].'" Ibid. (alteration in
original) (quoting N.J.S.A. 59:1-2). "[T]he 'guiding principle' of the [TCA] is
'that immunity from tort liability is the general rule and liability is the
exception.'" D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 134 (2013)
(quoting Coyne v. DOT, 182 N.J. 481, 488 (2005)) (additional quotations
omitted).
A-0892-24 9 Under the TCA, a public entity may be liable for a personal injury caused
by the "dangerous condition" of its public property. N.J.S.A. 59:4 -2. "The
applicable standards for dangerous condition liability under the TCA are well
established. To recover for an injury under the general liability section of the
TCA, N.J.S.A. 59:4-2, a plaintiff must prove several elements." Estate of Massi
v. Barr, 479 N.J. Super. 144, 156 (App. Div. 2024). The statute prescribes:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that [(1)] the property was in dangerous condition at the time of the injury, [(2)] that the injury was proximately caused by the dangerous condition, [(3)] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [(4)] that either:
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 [N.J.S.A.] 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.]
A-0892-24 10 To plead a prima facie case under the TCA, plaintiff must show: (1) the
area of Hickory Hill where she fell was in a "dangerous condition" at the time
of her fall; (2) the injury was proximately caused by the dangerous condition;
(3) the dangerous condition created a reasonably foreseeable risk of the kind of
injury which was incurred; and (4) either that a wrongful act or omission of a
defendant employee, acting within the scope of employment, created the
dangerous condition, or that defendants had actual or constructive notice of the
dangerous condition and sufficient time prior to the injury to protect against it.
N.J.S.A. 59:4-2. Additionally, plaintiff must show that the defendants' action
or inaction regarding the allegedly dangerous condition was "palpably
unreasonable." Ibid.
Plaintiff begins by challenging the court's grant of summary judgment,
arguing defendants do not meet the applicable standard under Rule 4:46-2 and
the competent evidence and affidavits presented were sufficient to meet the
foreseeable risk requirement of the TCA. In other words, plaintiff contends she
produced sufficient evidence to satisfy each element required for liability under
the TCA.
On the issue of foreseeability, plaintiff avers that because there are no
sidewalks in the area and she was forced to walk in the roadway, she was a
A-0892-24 11 foreseeable user of the roadway. She argues the court's reliance on our Supreme
Court's holding in Polzo v. Cnty. of Essex, 209 N.J. 51 (2012), "in reaching its
determination that [she] was not a foreseeable user of Hickory Hill" constitutes
error. Plaintiff avers that unlike the bicyclist who was struck and killed while
riding on the shoulder of the roadway in Polzo, she had no choice [but] to use
the roadway as there were no sidewalks or shoulders on Hickory Hill. She
maintains "[t]his is an entirely different set of facts than those that formed the
basis of the Polzo opinion, and the [t]rial [c]ourt erred in relying on Polzo over
the more analogous [Atalese v. Long Beach Tp., 365 N.J. Super. 1 (App. Div.
2003)] case when determining whether [p]laintiff walking as a pedestrian was a
foreseeable use of the Hickory Hill roadway."
Plaintiff further maintains the "[c]ourt erred when it relied upon cases with
distinguishable fact patterns, and ignored the uncontested expert opinion of [her]
engineer," that the pothole in question constituted a dangerous condition.
Relying on the Court's holding in Atalese, where we found a three-fourths inch
depression in a roadway sufficient to constitute a dangerous condition, plaintiff
asserts the fact that the potholes on Hickory Hill were reoccurring, as evidenced
by the municipal records, is sufficient to establish defendants had constructive
notice of the dangerous condition in the roadway. Plaintiff further contends
A-0892-24 12 defendants engaged in palpably unreasonable conduct insofar as they "enacted
a system whereby only one person would keep records of . . . complaints and
that same person would be the final say as to whether any complaints were
addressed or ignored," and the lack of any "standard to evaluate or prioritize
[defendant's] response to complaints of tripping hazards."
We first address the question whether plaintiff established the depression
or pothole on the roadway that caused her injury constitutes a dangerous
condition under the TCA. The TCA defines a "dangerous condition" of property
as a condition 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. 59:4-1(a). A "substantial risk" is "one that is not minor,
trivial or insignificant." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (quoting
Polyard v. Terry, 160 N.J. Super. 497, 509 (App. Div. 1978)). If it can be shown
that public property is safe unless foreseeable users fail to exercise due care,
then there is no dangerous condition for purposes of the TCA. Garrison v. Twp.
of Middletown, 154 N.J. 282, 290 (1998). Moreover, where the "physical
characteristics" of the property would "reasonably notify prospective users that
their proposed activity will be hazardous, then the plaintiff's engagement in that
A-0892-24 13 activity is not an exercise of due care under N.J.S.A. 59:4-1 and -2." Estate of
Massi, 479 N.J. Super. at 158.
Proof of notice of a dangerous condition present on public property is also
an essential element for premises liability under the TCA. Actual notice is
proven if the public entity 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). Alternatively, constructive notice is satisfied if the plaintiff shows
"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); see also
Chatman v. Hall, 128 N.J. 394, 418 (1992). "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) (quoting Sims v. City of
Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)).
Beyond these requirements, dangerous condition liability under the TCA
obligates a plaintiff to prove that the public entity's failure to protect against the
danger was "palpably unreasonable." N.J.S.A. 59:4-2. The Supreme Court has
explained "the term implies behavior that is patently unacceptable under any
given circumstance." Kolitch, 100 N.J. at 493. "[I]t must be manifest and
A-0892-24 14 obvious that no prudent person would approve of [the public entity's] course of
action or inaction." Ibid. (quoting Polyard, 148 N.J. Super. at 216); see also
Gonzalez by Gonzalez v. City of Jersey City, 247 N.J. 551, 576 (2021). The
burden of proving a public entity defendant acted in a palpably unreasonable
manner is on the plaintiff. Coyne v. State Dep't of Transp., 182 N.J. 481, 493
(2005).
Based on our de novo review and applying the well-settled legal principles
enunciated above, we discern no error in the motion court's grant of summary
judgment in defendants' favor. The court based its decision on plaintiff's failure
to establish the putative pothole constituted a dangerous condition, as defined
by the TCA, and the lack of credible evidence that defendants had actual or
constructive notice of the pothole that caused her injury and failed to remediate
any alleged danger posed by its location.
Plaintiff offers the following arguments in support of her position. First,
she posits that a "dangerous condition" is established because of the depth of the
depression in her case exceeded the depression deemed to constitute a
"dangerous condition" in Atalese. More particularly, she argues "there was no
dispute . . . that the depression that [caused her] to fall measured approximately
34" in length, 13" in width, and up to 1 1/2" in depth," whereas in Atalese, we
A-0892-24 15 found a roadway depression of 3/4" deep constituted a dangerous condition for
a pedestrian." Additionally, she argues that defendants' process for handling
pothole complaints is indicative of defendants' inadequate maintenance and
inspections. With regard to Campanelli's testimony, she maintains he had no
standard as to whether or not a pothole was a danger for a pedestrian walkin g,
especially on residential streets without sidewalks when pedestrian use is
foreseeable.
The court found plaintiff's argument surrounding Campanelli's process for
handling pothole complaints insufficient to satisfy the TCA's actual or
constructive notice requirements. Although plaintiff submitted municipal
records showing repeated reports and repairs of potholes in the area, including
on Hickory Hill, the court concluded those records did not establish that the
specific pothole where plaintiff fell had been reported to the municipality.
We are satisfied that the evidence of the existence of an alleged dangerous
condition elsewhere or on prior dates is not sufficient constructive notice of the
condition that caused plaintiff's injury. See Arroyo, 433 N.J. Super. at 243.
Moreover, the municipal pothole records and affidavit offered by plaintiff did
not establish when the pothole formed, how long it had been in the roadway, or
if or when it had been reported to defendants. At most, plaintiff's proofs
A-0892-24 16 suggested general notice of recurring potholes on the roadway in the area where
plaintiff fell. Such proofs are therefore insufficient to establish defendants had
notice of the specific dangerous condition where plaintiff fell as required by the
TCA.
We further discern plaintiff could not establish that a pothole, even one
with a "height as much as a 1 1/2 inches" in depth as her expert concluded
constitutes a dangerous condition as a matter of law—as "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.
59:4-1(a). To be considered a "substantial risk of injury," a condition of
property cannot be minor, trivial, or insignificant. Stewart, 249 N.J. at 656
(citing Kolitch, 100 N.J. at 493).
Here, even though some pedestrian use of Hickory Hill was foreseeable
given that the roadway bordered plaintiff's daughter's home, the roadway
nevertheless remains a street principally constructed for vehicular traffic and
any defect in the property cannot be viewed in a vacuum and must be considered
together with the anticipated use of the property to determine whether the
condition creates a substantial risk of injury. See Atalese, 365 N.J. Super. at 5.
Moreover, the TCA, however, does not mandate public entities retrofit or
A-0892-24 17 redesign roadways to accommodate pedestrian travel merely because sidewalks
are absent. See Polzo, 209 N.J. at 71 (recognizing that certain roadways are
primarily designed for vehicular traffic only, even where pedestrian use of a
roadway without sidewalks may be foreseeable). Further, foreseeability of
pedestrian use alone does not establish liability where the condition alleged is
inherent in the nature of the roadway itself. See id. at 71-73. And, because
roadways are reasonably expected to contain potholes, the presence of potholes
on the roadway does not create an inherently dangerous condition. Polzo, 209
N.J. at 66-67.
On the issue of notice of the alleged dangerous condition, plaintiff asserts
notice is evident from the years of complaints about potholes in the roadway as
depicted in municipal records. Plaintiff also argues that defendant's conduct was
palpably unreasonable in light of their failure to implement a pedestrian-safety
system on streets known for chronic hazards, coupled with the DPW
Superintendent's own acknowledgment of its discretion in evaluating repair
priorities. In plaintiff's deposition testimony, she stated that she was walking
on the roadway with her daughter in the afternoon, around 2:00 or 3:00 PM,
when she stepped into a pothole injuring herself. Plaintiff maintains that the
roadway was known to have potholes by virtue of several prior reports to
A-0892-24 18 defendants. Although defendants do not dispute that there were a number of
potholes in the roadway around where plaintiff fell—both in the past and
present—the question before us is whether plaintiff pleaded a genuine issue of
material fact that defendants had prior actual or constructive notice of the
pothole that caused her injury.
On this issue, the court found "no proof of actual notice here of th[e]
particular depression or pothole" and plaintiff's proof fell short of the type of
proofs required to defeat summary judgment: "that would establish that, in fact,
[the Borough of Montvale] had notice of this particular pothole, and either
ignored [it] . . . or remedied it in the past." Addressing the statements made by
plaintiff's daughter in her affidavit that she had notified the municipality
numerous times about the depression or pothole in the roadway, the court noted
the lack of proofs of any such report around the time of plaintiff's fall.
Constructive notice may be found where a defect is "so obvious 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). Here, plaintiff points to years
of chronic pothole complaints and the pattern of incomplete recordkeeping as
evidence the municipality should have known about persistent hazards on the
A-0892-24 19 street. Defendants counter that neither the general knowledge of problems nor
past repairs are sufficient to establish notice of this particular depression.
The court, however, found the evidence of notice lacking, both because
the only direct allegation—the Merritt affidavit—was introduced following the
conclusion of discovery in plaintiff's response to defendants' summary judgment
motion, and also because municipal records did not substantiate that notice was
provided about this specific depression.
The court concluded "plaintiff has not met the burden with respect to the
issue of constructive notice based on the lack of
competent evidence that [defendants] were put on notice or knew that there was a depression on which the plaintiff fell . . . Or that there was a sufficient amount of time for the municipality in an exercise of due care to discover the condition, and its dangerous character, . . . the criteria that is required to be shown in N.J.S.A. 59:4-3(b).
Like the motion court, we are unpersuaded by plaintiff's argument
defendants had actual notice or constructive notice of the pothole based on prior
complaints contained in the Borough records. We reach this determination
based on our review of the record, which lacks proof of plaintiff's claim that the
pothole that caused her injury had been the subject of any prior complaints.
Relatedly, plaintiff cannot show how long the pothole was in existence on the
A-0892-24 20 roadway, or that defendants failed to repair the roadway in a reasonable
timeframe, resulting in her injury. And, as highlighted by defendants, no
pothole complaints matching the subject depression were found in DPW records
for the relevant period. See Garrison, 154 N.J. 282 at 311 (finding where there
is no evidence of prior injuries or complaints involving a particular declivity,
"[n]o evidence exists in this record that would allow reasonable jurors to
conclude that [a municipality's] inaction . . . was patently unacceptable in a way
so manifest and obvious that no prudent person would approve of its inaction. ").
Moreover, our Court previously recognized the maintenance burden on
public entities, while underscoring that a plaintiff on the roadway must use due
care when confronting a visible hazardous potholed surface in Estate of Massi,
479 N.J. at 172. Estate of Massi involved a roadway bicyclist who swerved to
avoid a truck, instead hitting a pothole and injuring himself. There, our Court
held "due care" under the TCA "requires analysis of the 'objectively reasonable'
conduct of those who use the property." Id. at 157 (quoting Garrison, 154 N.J.
at 291). In other words, to find the use of due care is to question "whether the
property poses a danger to the general public when used in the normal,
foreseeable [and objectively reasonable] manner." Ibid. (quoting Vincitore, 169
N.J. at 126).
A-0892-24 21 Here, we conclude that plaintiff failed to present competent evidence that
would permit a rational factfinder to determine whether defendants had actual
or constructive notice of the specific depression that caused her fall, or that
defendants' failure to make repairs was itself palpably unreasonable. Plaintiff
fails to demonstrate that this particular defect was reported to defendants and
that they had sufficient time to take corrective action.
Additionally, even though Campanelli admitted that certain road
maintenance records from around the time of plaintiff's fall were missing, it is
plaintiff's burden to establish the elements of her claim. N.J.S.A. 59:4-2. We
further note the Merritt affidavit stated only that "[f]or years prior to [plaintiff's]
fall, [(the affiant)] personally complained of the pothole that caused [plaintiff]
to fall and requested that the Pascack Valley Department of Public Works repair
it." Notably, the affidavit, introduced after the close of discovery, contained
only conclusory statements of notice and lacked corroboration or supporting
details about reports made to the municipality regarding the defect, including
clear evidence of the date or length of time the pothole existed. Thus, the motion
court properly found plaintiff’s belated affidavit insufficient to establish actual
or constructive notice of the alleged dangerous condition in the roadway.
A-0892-24 22 Lastly, we note that even if plaintiff established that the pothole in the
roadway constituted a dangerous condition, a reasonable jury still could not find
that the failure to repair it was "palpably unreasonable." N.J.S.A. 59:4-2 ("[the
statute] shall be construed to impose liability upon a public entity for a
dangerous condition of its public property if the action . . . was not palpably
unreasonable."). To be palpably unreasonable, defendant's inaction must be so
lacking in justification as to be "patently unacceptable under any circumstances"
and so "manifest and obvious that no prudent person would approve." Kolitch,
100 N.J. at 493.
Plaintiff maintains defendants' failure to implement a robust system for
repairing roadway defects on Hickory Hill, especially given the extensive
history of potholes and lack of sidewalks for pedestrian safety, constitutes
palpably unreasonable conduct. The court, however, disagreed, citing Polzo's
warning against judicial micromanagement of municipal inspection and repair
programs, and noting the lack of any established standard requiring more
rigorous inspection or different prioritization. See 206 N.J. at 75-76.
Defendants are unquestionably responsible for maintaining the more than
8 miles of roadway spanning the Borough of Montvale and Township of River
Vale pursuant to the Shared Services Agreement. However, plaintiff cannot
A-0892-24 23 establish that defendants' failure to repair the roadway was "palpably
unreasonable;" because she cannot show on this record defendants' actions were
so lacking in justification and patently unacceptable under any circumstances.
Kolitch, 100 N.J. at 493. We reach this conclusion notwithstanding plaintiff's
argument the roadway in question was plagued by reoccurring depressions and
potholes. Even so, municipal records confirm defendants had previously
completed pothole repairs to the roadway in the Hickory Hill area between 2014
and 2022. Absent evidence of egregious neglect or disregard of obvious,
reported hazards, courts are generally hesitant to find municipal actions palpably
unreasonable. Polzo, 209 N.J. at 76. Moreover, in a world of limited public
resources, it is well settled that municipalities may prioritize more urgent
roadway hazards. Id. at 77-78. Thus, we cannot conclude that defendants acted
in a palpably unreasonable manner by failing to protect plaintiff against the
specific pothole that caused her injury.
In sum, based on our de novo review, defendants are entitled to summary
judgment as a matter of law under the TCA as plaintiff failed to establish the
requisite elements of her claim. Specifically, plaintiff did not present evidence
that the roadway constituted a dangerous condition under N.J.S.A. 59:4-1,
demonstrate that defendants had actual or constructive notice of the specific
A-0892-24 24 defect, or show how defendants' conduct in failing to remedy it was palpably
unreasonable under N.J.S.A. 59:4-2.
Affirmed.
A-0892-24 25