Summary judgment granted dismissed death case affirmed on appeal
Deravil on behalf of Amilia Cius v. Hamilton Township, Mercer County, State of New Jersey and Pantaleone
Submitted by New Jersey Civil Lawyer, Jeffrey Hark.
November 1, 2019 New Jersey Appellate Division (Not for publication without approval by the appellate division)
The sole question in this case was whether a specific road was a dangerous condition which proximately caused the death to the plaintiff. The facts are very brief and not in dispute. The plaintiff entered the roadway from a sidewalk, which was not at an intersection location/identified cross walk. The plaintiff was also wearing dark clothes when she was struck by a vehicle at a point not designated for Crossing. For anybody not familiar with the area this is virtually in front of the Hamilton Township Police Department/ municipal court.
The township and county moved for summary judgment arguing that they were not liable under the New Jersey Tort Claims Act (TCA) because they did not owner control the roadway. In addition the county argued the road was not dangerous under the TCA as well. The trial judge determined the town did not own control or maintain the roadway, and the county did not maintain any dangerous condition on the roadway in violation of the TCA. The judge also concluded summary judgment was appropriate dismissing the government defendant because the decedent chose to take a risk crossing at a non-crosswalk area and failed to exercise due care Wearing dark clothes and crossing at a four Lane location.
The threshold question was the application of the seminal New Jersey Supreme Court decision of Vincintori v. NJ Sports Expo Authority, 169 N.J. 119 (2001).
With this case and the New Jersey TCA Section 59:4-2, the trial court ruled a public entity is liable for injury caused by condition on that public property if plaintiff establishes the property was in dangerous condition at the time of the injury, that injury proximately caused the dangerous condition, that dangerous condition created a reasonable risk of the kind of injury which was incurred.
The TCA defined a dangerous condition as one which creates a substantial risk of injury when the property is used with due care in a manner which is reasonably foreseeable that it will be used. A question of whether a “dangerous condition “exist is usually a jury question. However, At a motion for summary judgment the trial court is asked to make the assessment as to whether it can be reasonably determined under the evidence that the dangerous condition exists at all in order to get that question in the front of the jury at all.
The trial court reviewed the question of fact concerning dangerous condition and its existence coupled with due care under the supreme court decision identified above. In this case the trial court ruled the plaintiff provided no evidence that the road itself was dangerous, the sidewalk had inappropriate lighting, the location of trees and utility poles were not in the appropriate location, as well as the fact that this plaintiff did not use due care when she cross the street at a location other than the crosswalk. The dismissal was affirmed on appeal.
Cases against the municipality and or county which owns the road are very difficult and expert sensitive cases. Questions concerning the plaintiffs contributory negligence and do care also are clearly evidentiary issues which come into play; as this case reveals.
Jeffrey S. Hark, Esq.
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