GIANI PETTY VS. CITY OF NEWARK (L-1180-18, 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NOT FOR PUBLICATION WITHOUT THE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-4126-19

GIANI PETTY,

Plaintiff-Appellant/
Cross-Respondent,

v.

CITY OF NEWARK,

Defendant-Respondent/
Cross-Appellant.
__________________________

Argued September 29, 2021 – Decided December 20, 2021

Before Judges Whipple, Geiger, and Susswein.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-1180-18.

Martin F. Kronberg argued the cause for
appellant/cross-respondent (Martin F. Kronberg, PC,
attorneys; Martin F. Kronberg, on the briefs).

Kenyatta K. Stewart, Corporation Counsel, argued the
cause for respondent/cross-appellant (Kenyatta K.
Stewart, attorney; Wilson D. Antoine and Azeem M.
Chaudry, Assistant Corporation Counsels, on the
briefs).
PER CURIAM

Plaintiff Giani Petty (plaintiff) appeals from the June 5, 2020 Law

Division order granting summary judgment and dismissing her personal injury

complaint against defendant City of Newark (City). Plaintiff's suit arose from

the broken ankle she sustained after stepping into a pothole on a residential

street. The trial court ruled that plaintiff failed to meet all the requisite elements

of a public entity tort claim under the Tort Claims Act (TCA or Act), N.J.S.A.

59:1-1 to 12-3. Specifically, the trial court relied on the immunity feature

codified in N.J.S.A. 59:2-3(d), which affords discretion to municipalities to

allocate limited resources—in this instance, the resources available to identify

and repair potholes. The trial court concluded that the discovery record, viewed

in the light most favorable to plaintiff, did not demonstrate that the City's failure

to repair the pothole she stepped in was palpably unreasonable.

After carefully reviewing the record in light of the arguments of the parties

and the governing legal principles, we affirm. The record supports the trial

court's determination that the City's decision to repair potholes within limits of

its budgetary allocation for street maintenance was not palpably unreasonable.

Because the allocation-of-resources immunity provision within TCA provides

an independent and sufficient basis upon which to grant summary judgment and

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dismiss plaintiff's complaint, we need not consider the issues raised in the City's

cross appeal.

I.

We need only briefly summarize the facts and procedural history that are

pertinent to the issues we address on appeal. On June 14, 2017, around 9:00

a.m., plaintiff tripped and "hung" her foot over a pothole near her residence on

Boyd Street. She was walking to her car, which was parked on the street.

Plaintiff fractured her ankle as a result of the fall. She subsequently underwent

surgery to place a screw and band in her ankle.

Plaintiff filed a verified complaint on February 16, 2018. 1 In the course

of ensuing discovery, the City presented evidence that the Mayor and Council

approved the annual budget that allocates resources for street maintenance. The

discovery record also includes a deposition of Dexter Cobbs, the Supervisor of

street repairs, which explains the process by which the City identifies potholes

and prioritizes repair efforts using available resources. That evidence shows

that the City's asphalt crew and supervisor exercise their discretion by

1
Because we need not decide the issues raised in the City's cross-appeal, we
omit a discussion of facts concerning the City's contention that plaintiff failed
to comply with the notice-of-claim requirements under N.J.S.A. 59:8-4 and
N.J.S.A. 59:8-6.
A-4126-19
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submitting daily pothole repair reports that detail their plan each day to identify

and fix potholes.

On May 1, 2020, after the parties had completed discovery, the City

moved for summary judgment. On June 5, the trial court heard oral argument

after which it granted summary judgment in the City's favor and dismissed

plaintiff's complaint.

Plaintiff raises the following contentions for our consideration:

POINT I

AS A RATIONAL FACT-FINDER MAY
DETERMINE THAT THE ACTION THE
DEFENDANT CITY OF NEWARK TOOK TO
PROTECT AGAINST THE POTHOLE AT ISSUE[—
]OR ITS FAILURE TO TAKE SUCH ACTION[—
]WAS PALPABLY UNREASONABLE, SUMMARY
JUDGMENT WAS INAPPROPRIATE.

POINT II
DEFENDANT CITY OF NEWARK HAD BOTH
ACTUAL AND CONSTRUCTIVE NOTICE OF THE
CONDITION OF THE POTHOLE AT ISSUE AND
THUS SUMMARY JUDGMENT ON BEHALF OF
THE DEFENDANT IS INAPPROPRIATE.

POINT III

AS A RATIONAL FACT-FINDER MAY
DETERMINE THAT THE POTHOLE AT ISSUE IS A
DANGEROUS CONDITION, SUMMARY
JUDGMENT IS INAPPROPRIATE.

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 The City raises the following points in response to plaintiff's arguments

and in support of its cross-appeal:

POINT I
THE MOTION JUDGE PROPERLY DISMISSED
PLAINTIFF'S COMPLAINT BECAUSE THE CITY IS
IMMUNE UNDER N.J.S.A. 59:2-3 AND N.J.S.A.
59:4-6.

POINT II
PLAINTIFF FAILED TO COMPLY WITH THE
NOTICE PROVISIONS OF THE TCA [TORT
CLAIMS ACT].

POINT III
PLAINTIFF CANNOT STATE A CLAIM UNDER
N.J.S.A. 59:4-2.

A. Plaintiff cannot establish that the condition that
allegedly caused her injury was dangerous.

B. The City had no notice of and did not cause the street
condition of which plaintiff complains.

POINT IV

PLAINTIFF'S DAMAGES ARE BARRED BY THE
TCA.

II.

We begin our analysis by acknowledging the well-settled legal principles

governing this appeal. We review the trial court's grant or denial of a motion

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for summary judgment de novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567,

582 (2021) (citations omitted); Christian Mission John 3:16 v. Passaic City, 243

N.J. 175, 184 (2020) (citation omitted); Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citation omitted).

When reviewing a grant of summary judgment, an appellate court applies the

same standard as the motion judge and considers "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 v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995); see Rozenblit v. Lyles, 245 N.J. 105,

121 (2021); Christian Mission, 243 N.J. at 184; Friedman v. Martinez, 242 N.J.

449, 472 (2020); Shields v. Ramslee Motors, 240 N.J. 479, 487 (2020); Globe

Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016).

We next discuss the TCA. As the Supreme Court noted in Polzo v. Cnty.

of Essex, 209 N.J. 51 (2012):

the Legislature confined the scope of a public entity's
liability for negligence to the prescriptions in the TCA.
A public entity is only liable for an injury arising "out
of an act or omission of the public entity or a public
employee or any other person" as provided by the TCA.
In other words, a public entity is "immune from tort
liability unless there is a specific statutory provision"

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 that makes it answerable for a negligent act or
omission.

[Id. at 65 (citations omitted).]

The TCA provides in pertinent part:

a) A public entity is not liable for an injury resulting
from the exercise of judgment or discretion vested in
the entity;

b) A public entity is not liable for legislative or judicial
action or inaction, or administrative action or inaction
of a legislative or judicial nature;

c) A public entity is not liable for the exercise of
discretion in determining whether to seek or whether to
provide the resources necessary for the purchase of
equipment, the construction or maintenance of
facilities, the hiring of personnel and, in general, the
provision of adequate governmental services; [and]

d) 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
omissions of its employees in carrying out their
ministerial functions.

[N.J.S.A. 59:2-3.]

The City asserts that it is entitled to immunity under all four subsections

of N.J.S.A. 59:2-3. We focus on subsection (d)—which we refer to as the

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allocation-of-resources immunity provision—because that is the theory the trial

court relied on to dismiss plaintiff's complaint. The contours and application of

this statutory provision were carefully explained in Polzo—a case that

specifically addressed the nature and scope of a public entity's liability with

respect to the repair of potholes and depressions. The portions of the Court's

opinion concerning the allocation-of-resources immunity feature inform our

analysis of the matter before us.

In Polzo, the trial court granted summary judgment in favor of the

defendant County and dismissed plaintiff's wrongful-death and survival-action

lawsuit, finding that (1) "the County did not have actual or constructive notice

of a dangerous condition of the roadway's shoulder and, alternatively," (2) "that

the County did not act in 'a palpably unreasonable' manner by failing to repair

the depression." Id. at 56. We reversed, "concluding that a jury could determine

that the County had affirmatively caused a dangerous condition of property by

not having in place a proactive program to inspect its roadway for the type of

defect that was presumably responsible for the fatal accident in that case." Ibid.

The Supreme Court reinstated the trial court's grant of summary judgment. Ibid.

The Court noted that the County had inspected the subject roadway and filled in

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potholes just five weeks before the decedent cyclist lost control of her bicycle. 2

Ibid. The Court ultimately held that "[e]ven when viewed in the light most

favorable to plaintiff, we cannot conclude that the County was on constructive

notice of a 'dangerous condition' on the shoulder of its roadway that 'created a

reasonably foreseeable risk' of death." Ibid. Importantly for purposes of the

issue before us in the present matter, the Court in Polzo also held that it could

not conclude that "the County's failure to correct this depression before the

tragic accident was 'palpably unreasonable.'" Ibid. The Court explained,

It is fair to say that in view of the County's considerable
responsibility for road maintenance in a world of
limited public resources, the depression here, barely
one-and-one-inches in depth [and two feet in diameter]
on the roadway's shoulder, might not have been deemed
a high priority, even if the County were on notice of its
presence.

All in all, even when the issue is viewed favorably to
plaintiff, we cannot conclude that the County acted in a
palpably unreasonable manner by failing to "protect
against" the depression before the tragic accident in this
case.

2
We note that plaintiff attempts to distinguish Polzo because the Court in that
case addressed a bicycle accident caused by a pothole that the county failed to
notice, whereas in the present case, plaintiff argues that "at least twelve police
vehicles intentionally [drove] around the pothole." That distinction, however,
has no bearing on the application of the allocation-of-resource theory of
immunity codified in N.J.S.A. 59-2-3(d).

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 [Id. at 77–78.]

The Court further instructed that the term "palpably unreasonable implies

behavior that is patently unacceptable under any circumstance." Id. at 75 (citing

Muhammad v. N.J. Transit, 176 N.J. 185, 195–96 (2003)). "When a public

entity acts in a palpably unreasonable manner, it should be 'obvious that no

prudent person would approve of its course of action or inaction.'" Id. at 76

(quoting Muhammad, 176 N.J. at 195–96). The Court stressed that "[t]he duty

to refrain from palpably unreasonable conduct differs in degree from the

ordinary duty of care that is owed under the negligence standard." Ibid.

The Court added,

This Court does not have the authority or expertise to
dictate to public entities the ideal form of road
inspection program, particularly given the limited
resources available to them. See N.J.S.A. 59:1-2
(declaring that government's "power to act for the
public good is almost without limit and therefore
government should not have the duty to do everything
that might be done").

[Id. at 69].

Applying these foundational principles to the matter before us, we agree

with the trial court. Plaintiff has failed to show that the City was palpably

unreasonable in the manner in which it exercised its discretion to allocate the

limited resources that were available to remediate potholes. As the trial court

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recognized, the City offered evidence that the City's mayor and council approved

the annual budget, laying out the resources allocated to road maintenance. The

City also produced evidence that the City asphalt crew and its supervisor

submitted pothole repair work reports in which they detailed their intention s to

fix dozens of potholes each day. That evidence demonstrates how the City

exercises its discretion in choosing which potholes to fix on a given day from

the large universe of potholes that form on City streets. Nothing in the record

supports plaintiff's contention that the City's exercise of discretion was palpably

unreasonable for failing to fix the particular pothole she regrettably stepped in.

We add that the record does not show, for example, that the City received

complaints regarding that specific pothole. Id. at 76–77 (discussing Garrison v.

Twp. of Middleton, 154 N.J. 282 (1998). Accordingly, while the City's efforts

to prioritize the remediation of potholes were certainly not perfect—viewed

through the lens of hindsight—those efforts were not so "palpably unreasonable"

as to defeat its entitlement to tort claims immunity under N.J.S.A. 59:2-3(d).

As we have already noted, because we affirm the trial court's ruling that

the City enjoyed immunity under N.J.S.A. 59:2-3(d), we need not address the

issues raised in the City's cross-appeal.

Affirmed.

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