DIANA ACEVEDO VS. CITY OF MILLVILLE (L-0404-18, CUMBERLAND COUNTY AND STATEWIDE), A-0988-20

On June 8, 2018, Acevedo parked on South High Street in Millville and walked in the street (rather than the adjacent sidewalk) toward the municipal building; she stepped into a roadway "depression" and was injured.
Photographs and engineering inspection showed the depression measured approximately 0.5" to 1.2" deep, about 5.6 ft wide and 1.9 ft long; it was a pavement patch over an old 2014 water repair.
The City’s engineer opined the patch met NJDOT tolerances for a temporary pavement repair for vehicular traffic; the patch contained debris suggesting it had existed for months.
Acevedo sued under the New Jersey Tort Claims Act (N.J.S.A. 59:1-1 et seq.), alleging negligent maintenance and that the depression was a "dangerous condition" under N.J.S.A. 59:4-1(a) and 59:4-2.
The Law Division granted summary judgment for the City, concluding the depression was not a dangerous condition as a matter of law because the roadway was intended for vehicles (sidewalks were available) and the defect fell within permissible DOT tolerances.
The Appellate Division affirmed, holding no reasonable jury could find the defect created a substantial risk of injury when the street was used with due care and that Acevedo did not use the roadway with due care.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the depression in the roadway constituted a "dangerous condition" under N.J.S.A. 59:4-1(a) (element of N.J.S.A. 59:4-2)	Acevedo: the depression posed a substantial risk of injury to pedestrians and thus was a dangerous condition.	City: the roadway is intended for vehicles; the defect was minor, within NJDOT tolerances, and not dangerous for intended vehicular use.	Held for City: defect not a dangerous condition as matter of law because it did not create a substantial risk when the property was used in its reasonably foreseeable (vehicular) manner.
Whether Acevedo used the property "with due care" and whether pedestrian use of the traffic lane was reasonably foreseeable	Acevedo: argued pedestrians commonly used the roadway to reach the municipal building and the City should have anticipated that use.	City: sidewalks were available; pedestrian use of the lane was unlawful and not the objectively reasonable use the public generally would make.	Held for City: Acevedo did not use the roadway with due care; pedestrian use of the vehicular lane was not a reasonably foreseeable, objectively reasonable use, so TCA dangerous-condition liability fails.

Garrison v. Township of Middletown, 154 N.J. 282 (1998) (defines "used with due care" and sets two-part analysis for dangerous-condition claims)
Polzo v. County of Essex, 209 N.J. 51 (2012) (places burden on plaintiff to prove each element of N.J.S.A. 59:4-2 and notes not every roadway defect is actionable)
Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119 (2001) (court may decide dangerous-condition issue as matter of law where reasonable minds could not differ)
Polyard v. Terry, 160 N.J. Super. 497 (App. Div. 1978) (roadway defects actionable only if they create substantial risk when property is used reasonably)
Kahrar v. Borough of Wallington, 171 N.J. 3 (2002) (TCA presumes public-entity immunity absent specific statutory liability)