Tort Claims Act Bars Bicyclist’s Injury Claim Due to Small Depression in Shoulder of Road

Polzo v. County of Essex, 209 N.J. 151 (2012).  Plaintiff’s wife was riding with other bicyclists on the shoulder of an Essex County road.  She rode over a 1-1/4″ depression (a dip in the road with no break in the road’s surface, unlike a pothole) in the shoulder, lost control, fell, and sustained a head injury from which she later died despite having worn a helmet.  Plaintiff sued Essex County, which sought summary judgment.  The Law Division granted the County’s motion, but the Appellate Division reversed.  The Supreme Court granted certification and, in a unanimous opinion by Justice Albin, reversed and reinstated the summary judgment for the County.

The opinion is a good tutorial about some important aspects of the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3.   Under N.J.S.A. 59:4-2, a public entity is liable for a “dangerous condition” if the public entity created it or if the entity “had actual or constructive notice” of it within “a sufficient time” before the incident.  Even then, liability can attach only if the public entity’s failure to protect against the dangerous condition was “palpably unreasonable.”  A “dangerous condition” is one that “creates 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.”  N.J.S.A. 59:4-1.

Justice Albin found that plaintiff had struck out in every respect.  The County did not “create” a dangerous condition by having failed to discover it.  The County did, after all, have a program for inspecting roads, and pursuant to that program had very recently inspected and filled potholes on the very road at issue.  The TCA did not require a more rigorous inspection program.  Besides, as Justice Albin observed, plaintiff’s own expert stated that a natural force, “underground erosion,” not the County, had created the depression.

Nor did the County have notice of the depression on the shoulder.  The shoulder is not designed for traffic use, but for emergency pullover or parking.  Bicyclists, like motorists, are supposed to ride on the roadway, not the shoulder.  Plaintiff offered no evidence that the shoulder of the road in question was designated a bike lane or routinely used as one.  No accidents were reported there, and there was no basis to conclude that the County should otherwise  have noticed the depression.

Finally, even if the County had been on notice, it did not act “palpably unreasonably” in failing to protect plaintiff’s decedent from the depression.  Justice Albin observed that the County is responsible for maintaining many miles of roads.  Since there were no prior complaints about the depression, and the area at issue, the shoulder, was not designed for travel, the County “might reasonably give lesser priority to the shoulder.”  That was not a “palpably unreasonable” allocation of County resources.

It may come as a surprise to bicyclists that they are at greater risk in riding on the shoulder than in riding on the far right of the roadway itself.  But that is one lesson, though not the only one, of this decision.