Monday, February 14, 2011

Beware of Title 59

The very harsh winter of 2011 has created many hazardous conditions in Plainfield and in other municipalities across the state of New Jersey. Conditions that, if left unattended, could result in property damage that could leave unsuspecting or uninformed citizens holding the bag. Under Title 59 of the New Jersey Constitution, municipalities are granted immunity from liability if certain conditions are not met by a plaintiff, i.e., plaintiff must prove that a municipality had actual or constructive notice of the dangerous condition. Beware of Title 59; I am quoting sections of that statute for the benefit of all Plainfielders:

59:4-1. Definitions
As used in this chapter:

"Dangerous condition" means a condition of property 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.

b. "Protect against" includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.

c. "Public property" means real or personal property owned or controlled by the public entity, but does not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.

59:4-2. Liability generally
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

59:4-3. Actual notice; constructive notice
a. A public entity shall be deemed to have actual notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.

b. A public entity shall be deemed to have constructive notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

I encourage my constituents to inform the City of any hazardous condition in the public right of way, such as pot holes, that they are aware of. By so doing, you will be protecting your interest and that of others in the event of property damage arising from said hazardous conditions.

In the meantime, drive safely and avoid road hazards.




Anonymous said...

Please translate all this into English for us. What does it mean for homeowners?

Adrian Mapp said...

Dear Anon 8:28 AM:
Title 59 provides certain immunities to a municipality which in essence hold the line on costs to homeowners who might otherwise have to cover a municipality’s insurance deductible if those immunities did not exist. However, it also allows for tort claims against a municipality if “a public entity had actual or constructive notice of the dangerous condition.” This post alerts you to municipal protections under Title 59 while at the same time letting you know what you need to do to preserve your rights in the event you need to file a claim against a municipality for damage resulting from a hazardous condition. This is not Plainfield specific; this covers all of New Jersey. My advice to you, is when in doubt, seek legal advice.