SUSAN BARANOWSKI, Plaintiff-Appellant, v. CITY OF NEWARK, Defendant-Respondent.
DOCKET NO. A-2262-23
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Submitted November 6, 2024 - Decided March 11, 2025
Before Judges Bishop-Thompson and Augustini.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0181-22.
This opinion shall not “constitute precedent or be binding upоn 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.
Christopher J. Culleton (Swartz Culleton, PC) and Anton Robert Tupa (Swartz Culleton, PC), attоrneys for appellant.
Brooks & Berne, PLLC, attorneys for respondent (Candace R. Johnson and Vanesa L. Ridore, on the brief).
PER CURIAM
I.
We glean the facts from the summary judgment record, viewing the facts in the light most favorable to рlaintiff as the non-moving party. Statewide Ins. Fund v. Star Ins. Co., 253 N.J. 119, 125 (2023). In September 2020, plaintiff walked across Peerless Place near Frelinghuysen Avenue in Newark towards her parked car. At her deposition, plaintiff testified she lоoked “ahead to her car” and stepped in a pothole in the middle of the street, tripped and fell, and injured her ankle. However, plaintiff was unable to identify the location of the pothole depicted in Google Earth photographs of the street or where she was walking.
According to plaintiff, Peerless Place is a “busy” street with “a lot of garbage trucks” and a “half-way house” with “trucks that come in and out of [the house].” She described the street as “an uneven surface with rocks usually on it because . . . it gets broken up easily.” Plaintiff, however, did not makе a complaint with Newark regarding the condition of the street to this incident.
A couple days later, plaintiff sought medical treatment from an urgent care facility and was diagnosed with a non-displaced ankle fracture. She then treated
At his deposition, Newark‘s Project Coordinator of Construction Dexter Cobbs explained that in 2020 there was only one pothole crew consisting of five employees.1 He further explained the pothole crew is responsible for pothole repairs across all 265 miles of roads in Newark. The crew focuses on residential areas and high-traffic tractor-trаiler streets when repairing the streets. According to Cobbs, Peerless Place is the type of street that would be visited more than once per year because of the “very heavy truсk use” and “heavy incidents of potholes.”
Cobbs testified Newark maintains a database of all pothole repairs completed in Newark. He explained that details of the potholes repaired are entered into this database after the crew completes their work for the day. The crew is notified of potholes through emails, telephone cаlls, and the 4-3-1-1 system.2 Cobbs received notice about the pothole from Newark‘s Law Department after plaintiff filed a tort claim notice. He then reviewed the
Plaintiff filed a complaint against Newark pursuant to the Torts Claim Act (TCA),
Following the close of discovery, Newark moved for summary judgment, arguing plaintiff failed to establish liability under the TCA. Plaintiff opposed the motion, contending she established Peerless Place constituted a dangerous condition and therefore established negligence.
After hearing the parties’ arguments, in an oral opinion rendered on March 1, 2024, the trial court granted Newark‘s motion and dismissed plaintiff‘s complaint. The court reasoned plaintiff had not met her burden because there was no evidencе in the record that Newark had constructive notice of the pothole nor how long the pothole had been on Peerless Place prior to plaintiff‘s fall. The court also determined the Google Earth photographs relied on by plaintiff were not authenticated. This appeal followed.
II.
Plaintiff argues there was sufficient evidence in the record to find constructive notice and unreasonable conduct on the part of Newark. In making that argument, plaintiff relies on (1) her “own recollection” of the “rough and
The TCA “indisputably governs causes of action in tort against governmental agencies within New Jersey.” Gomes v. Cnty. of Monmouth, 444 N.J. Super. 479, 487 (App. Div. 2016); see also
When asserting a claim for injuries under the TCA, plaintiff has the burden of satisfying each element of a cause of action under
The term “dangerous condition” is defined as a “condition of property that creatеs 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.”
“Whether a property is in a ‘dangerous condition’ is generally a question for the finder of fact.” Vincitore ex rel. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 123 (2001) (citation omitted). Nonetheless, that determination is subject to the court‘s preliminary assessment of whether a reasonable factfinder could conclude from the evidence presented by plaintiff that the property was in a dangerous condition. Id. at 124.
Under the TCA, a рublic entity is liable for potholes or a depression in a roadway only when the public entity is on actual or constructive notice of a
We are not persuaded by plaintiff‘s argument that Newark had constructive notice of the dangerous condition of the pothole. There is no competent evidence in the record that the pothole on Peerless Place existed for years. It is undisputed that Newark was unaware of the street conditiоn because no complaints were made by telephone, emails, or the 4-3-1-1 system from 2017 to 2020.
We reject plaintiff‘s argument that Google Earth photographs are historical and “akin” to a newspaper or periodical. There is no competent testimony on the record regarding the reliability of Google Earth images, how or when the images were captured, and if the images were altered. See
The record is similarly devoid of any competent evidence that Newark acted in a palpably unreasonable manner. As noted above, Newark was not aware of the potholе until plaintiff‘s incident. There is also no evidence in the record that Newark failed to take action to protect pedestrians from tripping in the pothole while walking in the middle of thе street or was “palpably unreasonable.”
Having reviewed the record de novo and in the light most favorable to plaintiff, we hold there was no reversible error. We, therefore, conclude plaintiff‘s complaint was properly dismissed with prejudice.
Affirmed.
M.C. Hanley
Clerk of the Appellate Division