MICHELLE LITTLE VS. CITY OF ATLANTIC CITY (L-0723-18, ATLANTIC COUNTY AND STATEWIDE), A-2466-20

On April 9, 2016, plaintiff Michelle Little fell into a pothole while crossing Pacific Avenue in Atlantic City about 7–10 feet from the nearest crosswalk; she did not use the crosswalk and did not see the pothole before falling.
The pothole ran along the concrete gutter, estimated ~5 inches deep, 4–6 inches wide, and 3–4 feet long; the location was a busy commercial district near casinos, hotels, restaurants, and a hospital.
Plaintiff was assisted by an off-duty police officer, transported to the hospital, and later diagnosed with a fractured nose and fractured left cheekbone.
Plaintiff sued the City for negligence under the New Jersey Tort Claims Act alleging the pothole was a dangerous condition; the City moved for summary judgment arguing plaintiff did not use the property with due care as a matter of law.
The trial judge denied summary judgment, concluding a reasonable jury could find plaintiff used the property with due care and that the pothole posed a dangerous condition when the property was used in a foreseeable manner.
The Appellate Division affirmed de novo, holding the question of due care and foreseeability should be left to the jury given the size/location of the defect and the commercial, heavily trafficked setting.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the pothole created a "dangerous condition" under the TCA when the property is used with due care	Little argued the pothole was sufficiently large and located such that it posed a substantial risk in foreseeable pedestrian use	City conceded the defect but argued any injury resulted from plaintiff's improper crossing, not a dangerous condition when used with due care	Held the pothole was a dangerous condition; size and location raised a triable issue for a jury
Whether Little’s crossing outside the crosswalk precludes a finding she used the property with due care as a matter of law	Little argued crossing 7–10 feet from the crosswalk in a commercial urban area can be a foreseeable, community-acceptable practice and does not automatically bar due care	City argued crossing outside the crosswalk violated N.J.S.A. 39:4-33 and was objectively unreasonable, entitling the City to summary judgment	Held crossing outside the crosswalk did not, as a matter of law, preclude due care; reasonableness from a community perspective is for the jury

Garrison v. Twp. of Middletown, 154 N.J. 282 (1998) (TCA requires plaintiff used public property with due care; an activity may be so unreasonable it bars liability)
Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119 (2001) (articulates three-part due-care analysis under Garrison: foreseeability, objective reasonableness, and plaintiff-specific conduct)
Polzo v. Cnty. of Essex, 209 N.J. 51 (2012) (discusses dangerous-condition analysis under the TCA)
Conley v. Guerrero, 228 N.J. 339 (2017) (standard of review for summary judgment; de novo review)
Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995) (summary judgment inferences drawn for non-moving party)
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189 (2016) (summary judgment standard and Rule 4:46-2)
Whaley v. Cnty. of Hudson, 146 N.J. Super. 76 (Law Div. 1976) (potholes recognized as dangerous conditions under the TCA)