A Rose by Any Other Name: When Dangerous Conditions Are Only Dangerous if They Have Been Before

By: Matthew Szymczack, Esq.

The New Jersey Appellate Division again recently upheld the immunities in favor of municipalities and public entities, and displayed the high burden a plaintiff faces when alleging a dangerous condition on public lands.  The case of Bunero v. City of Jersey City, 2015 N.J. Super. Unpub. LEXIS 2784 (App.Div. Dec. 3, 2015), LEXIS 430, is instructive in that it displays the great strength of the immunities granted in favor of public defendants, even in factual circumstances that may seem adverse, under the New Jersey Tort Claims Act (N.J.S.A. 59:1-1, et al.)

In granting summary judgment, the trial court determined that the plaintiff had not sustained his burden in proving that the City’s actions were palpably unreasonable.  The plaintiff was struck from behind while riding his motorcycle on Communipaw Avenue in Jersey City, New Jersey, on July 4, 2010.  Upon impact, plaintiff’s motorcycle was caused to ride up a nearby curb, and the plaintiff’s right leg struck the “nozzle cap” of a fire hydrant which was on the sidewalk.  As a result, the plaintiff sustained an open compound fracture of the right leg.

Plaintiff generally alleged that the City had allowed a dangerous condition to exist on its property, in that the fire hydrant was placed too close to the curb, and thus too close to the roadway.  The edge of the hydrant’s nozzle cap was measured to be just one and one-half inches from the curb line of Communipaw Avenue.  This condition allegedly posed a danger to motorists in Jersey City.  Surprisingly, this allegation found a multitude of support, even from the City itself.

Based upon property records and testimony from a professional engineer employed by the City, it was determined that the subject hydrant had been at that location and position on the sidewalk since sometime before 1939.  Plaintiff’s expert presented extensive testimony regarding applicable standards.  Apparently, in 1938, the American Water Works Association recommended that “no portion” of a hydrant should be placed “less than six inches or more than twelve inches” from the gutter face.  Even if the subject hydrant was measured from its outlets, and not the nozzle cap, it was still just four and one-half inches from the curb.  In 1970, this standard was updated, and recommended that a set-back of two feet from the curb line to the hydrant was appropriate.  This is apparently the current standard, as well.  The City, when installing new hydrants, mandated that they be at least eighteen inches from the curb, and more specifically, there be two feet of space between the curb face and the center-line of any newly relocated fire hydrant.    

The hydrant had remained in its position for over seventy years by the time of plaintiff’s accident, and it apparently was not in compliance with applicable codes and standards for the duration of that time.  Nonetheless, when discussing the City’s summary judgment motion, the trial court concluded that the hydrant did not constitute a dangerous condition, and that the hydrant did not represent a reasonably foreseeable risk of the injury sustained by plaintiff.  Summary judgment was awarded in the City’s favor.

On appeal, the Appellate Division of New Jersey upheld the trial court’s conclusion, and affirmed the summary judgment award.  However, it disagreed with the trial court on some key aspects.  The Appellate Division held that the evidence presented by plaintiff was sufficient to raise an issue of fact as to whether the hydrant constituted a dangerous condition, and that a jury could also conclude that the injury sustained by plaintiff was foreseeable.

Despite this, the Appellate Division ultimately agreed with the trial court in ruling that the City’s actions could not be found to be “palpably unreasonable.”  In support of this ruling, the evidence relied upon included testimony from the City’s engineer that as a result of the location of the water pipes, the nearest property line, and other impediments, the City “probably could not have” installed the hydrant further from the roadway.  It further noted that the plaintiff failed to produce any evidence that the subject hydrant was the cause of any prior incident or injury. 

But perhaps the most interesting portion of this case is where the Appellate Division expounded upon its ruling.  In citing Polzo v. Cty of Essex, 209 N.J. 51 (2012), the Appellate Division noted that where a public entity fails to repair a dangerous condition, even in instances where there was not even an inspection program in place, this conduct was protected under the Tort Claims Act.  In Polzo, a bicyclist fell over a depression in a county road.  The Supreme Court found that where there was no inspection program in place, it could not be held that the County had actual or constructive notice of the subject condition.  The Court also commented on the responsibilities with which public entities are tasked, noting that they are often charged with “considerable responsibility for road maintenance in a world of limited public resources.”

The Bunero Court applied these principles to its facts, noting that Jersey City has thousands of fire hydrants on its properties, and that it is unclear exactly how many of those hydrants may be in violation of the applicable standards.  Therefore, even though the City has “considerable responsibility” for maintenance of its properties, the “limited public resources” it is generally granted certainly hinder those efforts.     

This matter is instructive in that it should serve as yet another reminder of state legislatures’ protection of public entities, and the often broad immunities granted in their favor.  Further, if a dangerous condition is alleged, it could easily be argued in response that notice of the specific dangerous condition is required, as well as knowledge that the alleged dangerous condition was the cause of an incident or injury in the past.  Should this notion be widely applied and create a new standard, the defense of public entities would benefit substantially.