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Under The Tort Claims Act, Conduct That Is Objectively Indicative Of A Decedent’s Lack Of Due Care Will Preclude A Finding Of Any Actionable Dangerous Condition (And Any Liability Against A Defendant)

November 25, 2019

ROBERT B. SPAWN reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division.


In a recent New Jersey case, a Decedent was struck and killed by a motor vehicle on a four-lane roadway at approximately 9:30 p.m. on January 29, 2013. The driver of the motor vehicle explained that he did not see Decedent attempting to cross the street because she was wearing dark clothing.  Decedent had also apparently elected to enter the roadway at a point not designated for crossing, despite the existence of crosswalks located near where she was hit.


In her complaint and summary judgment motion papers, Plaintiff (the administratrix of Decedent’s estate) asserted that the road was a dangerous condition that proximately caused Decedent’s injuries, and that, as a result, Plaintiff was entitled to a judgment against the Township and the County under the Tort Claims Act (“TCA”).  However, the trial court disagreed and granted summary judgment to the Township and the County, explaining that Decedent “chose to take the risk in entering the road, presumably could see cars coming, and thus failed to exercise due care in crossing the road.”  The judge also found that Plaintiff had provided no evidence that the road was unsafe for pedestrians who used it in a normal and foreseeable manner by crossing at designated crosswalks.  And, to make matters worse for Plaintiff, the judge further held that Decedent’s use of the road (i.e., her decision not to use the designated crosswalk at night) was so objectively unreasonable that the condition itself (i.e., the road) could not have possibly caused the incident.


On appeal, Plaintiff contended that Decedent’s failure to use a crosswalk did not automatically absolve the Township and the County for their creation of a dangerous condition.  Plaintiff also pointed to the fact that the sidewalk on the eastern side of the road abruptly ended near the point of impact, and argued that it was reasonably foreseeable that a person would enter the road upon the termination of the sidewalk.


The Appellate Division was quick to dismiss Plaintiff’s arguments, and first noted that Plaintiff never claimed that the “dangerous condition” was the termination of the sidewalk—as opposed to the road itself—prior to losing on summary judgment.  Indeed, Plaintiff’s expert reports had focused on various sight obstructions and inadequate street lighting along the roadway as aspects of the alleged “dangerous condition,” and did not go into any measure of detail on how the sidewalk caused the accident.  Additionally, the Appellate Division explained that, absent a defect to the road itself, liability could not attach to Defendants under the TCA.  Thus, Plaintiff’s arguments regarding the streetlights, the sight obstructions, and the sidewalk were all made in vain, as they offered no insight into the physical condition of the road.


Moreover, the Appellate Division, in further accordance with the trial court, held that Plaintiff could not recover for Decedent’s injuries because the driver was using the road as intended at the time of the accident, and it was undisputed that Decedent’s conduct was “objectively unreasonable.”  To be sure, Decedent was walking across a four-lane roadway at night while wearing dark clothing at a point in the road not designated for crossing, and, practically speaking, the Appellate Division believed that this plainly evident lack of due care was far too much for Plaintiff to overcome.  Accordingly, the Appellate Division upheld the trial court’s decision, and Plaintiff’s case was dismissed.


Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.