SUSAN SCHEPS AND STEPHEN SCHEPS VS. TOWNSHIP OF DELRAN (L-1942-16, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-0142-18T3

SUSAN SCHEPS and
STEPHEN SCHEPS,
husband and wife,

Plaintiffs-Appellants,

v.

TOWNSHIP OF DELRAN

Defendant-Respondent.
_____________________________

Submitted August 13, 2019 – Decided August 23, 2019

Before Judges Sumners and Moynihan.

On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Docket No. L-1942-16.

Petrillo & Goldberg, PC, attorneys for appellant
(Jeffrey M. Thiel, on the brief).

Raymond, Coleman, Heinold, LLP, attorneys for
respondent (Douglas L. Heinold and Stephen E.
Raymond, on the brief).

PER CURIAM
 In this New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3,

negligence lawsuit involving a trip and fall due to a pothole, plaintiffs Susan

Scheps and Stephen Scheps 1 appeal from a Law Division order granting

summary judgment to defendant Township of Delran (the Township) dismissing

their complaint. Plaintiff contends that the evidence she submitted to the motion

judge was sufficient to withstand summary judgment under the TCA. In

particular, she argues the pothole was a dangerous condition that the Township

had constructive notice of, but failed to repair because of its palpably

unreasonable conduct. Having considered the parties' arguments in light of the

record and applicable legal standards, we affirm.

I

In considering the motion judge's order granting summary judgment, we

detail the undisputed facts presented and consider them in the light most

favorable to plaintiff, the party opposing summary judgment. See Angland v.

Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian

Life Ins. Co., 142 N.J. 520, 523 (1995)).

1
Stephen Scheps, who filed a per quod claim, also appeals. Given that his claim
is wholly derivative of his wife's, we therefore use the singular "plaintiff"
throughout the balance of this opinion.
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 On November 22, 2014, plaintiff and her husband went to visit their long-

time friends, who lived on Fox Chase Drive in Delran. When they arrived

around 8:00 p.m., her husband parked their car in front of their friend's home

within a few feet of the curb. Upon leaving around 11:00 p.m., plaintiff was

walking to the vehicle when she stepped into a pothole in the street and fell on

her left shoulder. Eleven days later, she had surgery to mend a left shoulder

fracture.

Over a month after the incident, on January 5, 2015, Jerry DeSanto,

Supervisor of the Township's Department of Public Works, conducted an

inspection of the street where plaintiff fell. When shown at his deposition a

photograph he took of the pothole in question on February 6, DeSanto responded

that it was the type of hole that normally should have been filled in by the

Township. He noted that it would have taken only ten or fifteen minutes and

"five bucks" to repair. He also said that he was not sure whether it would be

correct to call the "hole" a pothole when it looked more like "some alligatoring

. . . of the asphalt,"2 or "a deteriorating street."

2
DeSanto explained that "alligatoring" is "when an old road starts to break
down, . . . it looks like an alligator's back where it just cracks and starts to
crumble."
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 DeSanto also explained that potholes never end as "they [are] popping

back up" due to cold weather, especially in the winter. Although he said that no

single pothole should remain unfixed for over a year once it has appeared, it was

unclear whether the pothole in question was fixed and then re-appeared. Three

or four times a year, public works employees repair potholes that they find as

they circulate the Township, according to DeSanto.

Five months after the accident, on April 20, plaintiff's liability expert,

Charles J. Penza, inspected the location where plaintiff tripped and fell. His

report revealed that there was a "pothole" two inches below the street's surface,

which began at thirty-six inches from the curb and extended forty-five inches

from the curb. The pothole had a "broken and erratic asphalt edge result[ing] in

an irregular and hazardous foot-landing surface." Penza also maintained that

the pothole violated both the American Society of Testing Materials (ASTM)

and New Jersey Department of Transportation's (NJDOT) roadway standards,

which require roadways to remain flush and even with adjacent surfaces.

Additionally, Penza indicated that near the area of plaintiff's fall was a

streetlamp with less than one foot-candle of illumination – a minimum amount

of light at floor level required by most building codes – making it likely that

plaintiff was unable to see the pothole. This supported plaintiff's deposition

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testimony that she could not see what had caused her to fall. Penza also noted

that there was no street sign prohibiting curbside parking. In sum, he opined

within a reasonable degree of engineering probability that the kind of hole in

question evolved over more than forty years.

The Township's records revealed that in the three years prior to the

incident, twenty-two complaints of potholes on Fox Chase Drive were made.

There were four complaints in 2012, five in 2013, and thirteen in 2014. In 2013,

a woman broke her ankle on a pothole. In September 2014, another resident

complained that the street was "breaking up" in front of her house due to

potholes in the area. Prior to plaintiff's incident, no one, including plaintiff's

friends, notified the Township of the pothole in question.

The Township made pothole repairs in 2014, including on Fox Chase

Drive, but not to the particular hole in question. In addition, although Fox Chase

Drive was on the Township's pothole repair list, there was no guarantee that the

street would be repaired immediately, since, under the Township's Road

Rehabilitation Program, specified roadways are ranked from most in need of

repair to least, based on multiple factors by several agencies of the Township

and selected by the Township Council. The factors considered are road usage,

costs, availability of municipal funds and grant money, and public safety needs.

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 In her complaint, plaintiff alleged that she fell due to the Township's

negligence in creating dangerous conditions on a public roadway that were

allowed to exist, and failing to inspect the roadway and warn her of the danger.

At the conclusion of discovery, the Township filed a motion for summary

judgment based upon immunities under the TCA. The Township argued that

plaintiff failed to prove that: (1) the pothole was a dangerous condition, N.J.S.A.

59:4-2; (2) the Township had actual or constructive notice of the dangerous

condition, N.J.S.A. 59:4-4; and (3) the Township's conduct was not palpably

unreasonable in failing to repair the pothole, N.J.S.A. 59:2-3(d).

On August 7, 2018, at the conclusion of argument, the motion judge

entered an order and rendered her oral decision granting summary judgment.

The judge determined that it was up to the jury to determine whether the pothole

was a dangerous condition. The issue of whether the pothole was a dangerous

condition, according to the judge, did not preclude summary judgment. The

judge found there was no genuine dispute that the Township did not have actual

notice of the pothole; no one had reported it to the Township prior to plaintiff's

accident. The judge also found that the Township did not have constructive

notice because receiving many complaints about potholes in the same street and

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repairing them "[did not] create constructive notice of this particular condition

of the road."

Moreover, relying on Polzo v. County of Essex (Polzo II), 209 N.J. 51

(2012), the judge determined there were several reasons why the actions of the

Township in failing to repair the pothole were not palpably unreasonable. First,

she reasoned the fact that Fox Chase Drive was on the repair list did not make

the Township's failure to address the pothole in question palpably unreasonable

because a public entity is not responsible for ensuring the safety of roadways for

pedestrians' use, and "the municipal budget [did] not allow for every road to be

repaired each year." The judge noted this was due to policy considerations that

expanding public entities' liability would impose undue burden on them with

limited resources, and that courts "do[] not have the authority or expertise to

dictate to public entities the ideal form of road inspection program."

Second, the judge maintained that the failure to repair the pothole and

violation of certain construction codes alone was not sufficient to make the

Township's conduct palpably unreasonable because plaintiff's claims involve

maintenance of roadway, not its construction. Third, the judge determined that

DeSanto's testimony that the Township would have repaired the pothole if it had

knowledge of the condition, did not make the Township's actions in not fixing

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the pothole palpably unreasonable because it was not aware of the pothole.

Fourth, the judge pointed out that a pedestrian must be prepared to encounter

and watch out for obstructions in a roadway. Fifth, the judge explained that

Penza's opinion that the pothole was a dangerous condition was "really limited"

because his April inspection of the accident site occurred five months following

the November accident and after the winter season had taken its toll on the

roadway.

This appeal followed.

II

Plaintiff argues the motion judge erred in granting summary judgment.

She contends the pothole that caused her to trip and fall constituted a dangerous

condition under the TCA. For support, she points to Penza's expert opinion that

the defect violated many national and state safety codes.

Plaintiff moreover asserts that there was a genuine issue of material fact

as to whether the Township had constructive notice of the pothole in question

based upon the twenty-two complaints to the Township about potholes,

including thirteen reports in the year of the accident. Lodato v. Evesham Twp.,

388 N.J. Super. 501, 512 (App. Div. 2006) (holding there was constructive

notice where other individuals in the immediate vicinity had removed trees

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causing a similar condition to a sidewalk in which plaintiff sustained injury after

tripping over sidewalk raised by a tree root); see also Roman v. City of

Plainfield, 388 N.J. Super 527, 532, 539 (App. Div. 2006), (ruling the fact that

there had been numerous occasions where trees were uplifted due to the similar

problem supports the existence of constructive notice of the defect) . Plaintiff

also asserts that the Township's knowledge of prior poor conditions on Fox

Chase Drive – a woman sustained a broken ankle injury after stepping into a

pothole in 2013 and a resident's complaint two months before her accident that

the street was breaking up in front of her house due to potholes – provides proof

that the Township had constructive notice. Further, plaintiff argues the Google

Street View taken fourteen months before her accident shows the pothole, and

Penza's analysis that the hole would have developed over forty years, support

the existence of the Township's constructive notice.

Finally, plaintiff argues there is a genuine dispute of material fact as to

whether the Township's failure to repair the subject pothole was palpably

unreasonable because it would cost only "five bucks" to fill. She also asserts

that the prior complaints about potholes on Fox Chase Drive, the two prior

incidents concerning potholes and DeSanto's testimony that the hole should have

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been filled, support the conclusion that the Township's failure was palpably

unreasonable.

We review a ruling on a summary judgment motion de novo, applying the

same standard governing the trial court. Conley v. Guerrero, 228 N.J. 339, 346

(2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of

Pittsburgh, 224 N.J. 189, 199 (2016)). Thus, we consider, as the motion judge

did, "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.'" Holmes v. Jersey City Police Dep't, 449 N.J. Super. 600, 602-03 (App.

Div. 2017) (citation omitted). If there is no genuine issue of material fact, we

must then "decide whether the trial court correctly interpreted the law."

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.

325, 333 (App. Div. 2013) (quoting Brill, 142 N.J. at 540). We review issues of

law de novo and accord no deference to the trial judge's legal conclusions.

Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Applying these standards and the provisions of the TCA discussed below,

we affirm substantially for the reasons stated by the motion judge in her cogent

oral decision that plaintiff failed to establish the Township had actual or

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constructive notice of the pothole that allegedly caused her fall. We add the

following comments.

"Potholes and depressions are a common feature of our roadways.

However, 'not every defect in a highway, even if caused by negligent

maintenance, is actionable.'" Polzo II, 209 N.J. at 64 (quoting Polyard v. Terry,

160 N.J. Super. 497, 508 (App. Div. 1978)). In order to recover for an injury

caused by such defects, a plaintiff must prove all of the criteria of the TCA. See

id. at 66.

Under the TCA, "immunity from tort liability is the general rule [for a

public entity] and liability is the exception." Polzo v. Cty. of Essex (Polzo I),

196 N.J. 569, 578 (2008) (citations omitted). It states in relevant part that a

public entity may be held liable for an injury sustained that was proximately

caused by a dangerous condition on a public property. N.J.S.A. 59:4-2.

Liability will be found if "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." N.J.S.A.

59:4-2(b). "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).

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 "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).]

"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 inspection program' by the [public

entity] . . . would have discovered the condition." Polzo II, 209 N.J. at 68.

Here, plaintiff did not "show, even under the indulgent summary-

judgment standard of review, that the . . . [pothole] '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.'" Id. at 75 (quoting N.J.S.A. 59:4-

3(b)). Plaintiff's reliance on Penza's inspection five months after the accident,

a history of complaints to the Township, and its history of pothole repairs

pertaining only to the surrounding area established neither actual nor

constructive notice of the pothole that caused plaintiff's accident. Plaintiff has

presented no competent evidence as to the length of time that pothole existed.

Penza's opinion that the pothole "evolved over forty years" is not a testament to

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when the depression manifested itself to such a condition that it was a dangerous

condition and that the Township knew or should have known the pothole needed

to be repaired.

Nothing in the summary judgment record suggests that any complaints or

accidents concerning the pothole in front of plaintiff's friend's home were ever

reported to the Township. Consequently, we are convinced that no reasonable

jury could have concluded that the Township had actual or constructive notice

of the pothole in a sufficient time prior to plaintiff's injury to have taken

measures to protect against it.

Given our conclusion that the Township did not have actual or

constructive notice of the pothole that caused plaintiff's accident, the Township's

failure to repair it cannot be viewed as palpably unreasonable under the TCA.

"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)). It therefore follows that absent actual or

constructive notice, the public entity cannot have acted in a palpably

unreasonable manner. See Maslo v. City of Jersey City, 346 N.J. Super. 346,

350-51 (App. Div. 2002).

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 Yet, even if we conclude that there was actual or constructive notice of

the pothole, plaintiff has not presented any facts that show the Township's

conduct was palpably unreasonable. Apart from proof of notice, to establish

liability against a public entity under N.J.S.A. 59:4-2, a plaintiff must establish

a prima facie case that the action or inaction of the public entity was "palpably

unreasonable." Coyne v. Dep't of Transp., 182 N.J. 481, 493 (2005); Maslo, 346

N.J. Super. at 349. Similarly, 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.

"[The] subsection incorporates the thesis that once resources have been

provided a public entity may be liable for its determination of priorities in the

application of such resources if that determination is palpably unreasonable."

Margolis & Novack, Claims Against Public Entities, 1972 Task Force Comment

on N.J.S.A. 59:2-3(d). "Broadly speaking [N.J.S.A.] 59:2-3 provides that there

shall be no liability for the decision-making process of public entities." Id. at

cmt. 1 on N.J.S.A. 59:2-3.

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

unacceptable under any given circumstance." Muhammad v. N.J. Transit, 176

N.J. 185, 195 (2003) (citations omitted); 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."). Whether the 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

circumstances presented." Maslo, 346 N.J. Super. at 351 (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)).

The record in this case convinces us that as a matter of law the Township's

actions pertaining to the failure to repair the pothole was not palpably

unreasonable. There is no dispute that the Township's inspection of its public

streets was a discretionary activity. Given the limited resources of

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municipalities, it is not within our power to impose a more comprehensive

pothole inspection and repair program on the Township. See Polzo II, 209 N.J.

at 69.

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

There was no reported problem of a pothole in front of plaintiff's friends' home.

The program the Township had in place was not unreasonable. Under these

circumstances, no rational factfinder could find that it was palpably

unreasonable for the Township not to have repaired the pothole that caused

plaintiff's unfortunate injury.

Affirmed.

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