                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4308-18T3

WILLIAM BONSALL and
SHERI BONSALL, his wife,

          Plaintiffs-Appellants,

v.

NEW JERSEY TRANSIT,

          Defendant-Respondent,

and

STATE OF NEW JERSEY,
NEW JERSEY DEPARTMENT
OF TRANSPORTATION,
COUNTY OF SOMERSET,
TOWNSHIP OF BERNARDS,
BOROUGH OF BERNARDSVILLE,
and BASKING RIDGE,

     Defendants.1
_______________________________

                   Submitted June 1, 2020 – Decided July 28, 2020

1
   The record provided does not disclose why these defendants, besides the
Borough of Bernardsville, are either no longer in the case or are not parties to
the order being appealed.
            Before Judges Sumners and Geiger.

            On appeal from the Superior Court of New Jersey, Law
            Division, Civil Part, Somerset County, Docket No. L-
            0573-17.

            Hector I. Rodriguez, attorney for appellant.

            Hohn & Scheuerle, LLC, attorneys for respondent New
            Jersey Transit (Marie Sambor Reilly and John A. Thiry,
            on the brief).

PER CURIAM

      In this New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3,

negligence lawsuit arising from William Bonsall's bike riding accident while

crossing railroad tracks owned and maintained by New Jersey Transit (NJT), he

and his wife Sheri Bonsall appeal from Law Division orders dismissing their

complaint   on   NJT's    summary    judgment    motion    and   denying   their

reconsideration motion.    They contend the motion judge erred in granting

summary judgment because: (1) the allegation the accident was caused by a

dangerous condition is a jury question; (2) the dangerous condition which

caused the accident took considerable time to form, therefore putting NJT on

actual or constructive notice of the dangerous condition, for which it acted

palpably unreasonable in not repairing it; and (3) Sheri should be permitted to



                                                                       A-4308-18T3
                                       2
pursue her per quod claim despite the fact she separated from William about a

year after the accident and they have remained estranged. 2

      Even looking at the Bonsalls' assertion in the light most favorable to them

– the accident was caused by the dangerous condition of a deteriorated public

road – there is no showing NJT had actual or constructive notice of the

dangerous condition; therefore, summary judgment dismissal was proper and we

affirm. Thus, it is unnecessary to address the dismissal of Sheri's per quod

claim. Yet, for the sake of completeness, had we concluded William should be

permitted to present his claims to a jury, Sheri should have as well.

                                        I.

      On May 10, 2017, the Bonsalls filed a three-count complaint alleging a

negligently maintained area of road intersected by railroad tracks caused

William to fall and suffer injuries while he was riding a bicycle. Sheri claimed

she suffered loss of consortium as a result of William's injuries. Named as

defendants were the State of New Jersey, NJT, New Jersey Department of

Transportation, County of Somerset, Township of Bernards, the Borough of

Bernardsville and Basking Ridge.


2
   As plaintiffs share a surname, we refer to them by their first names for
convenience and with no disrespect intended.


                                                                         A-4308-18T3
                                        3
      Following discovery, NJT moved for summary judgment against the

Bonsalls on January 21, 2019.       Bernardsville thereafter cross-moved for

summary judgment against NJT and the Bonsalls.

      The motion record disclosed the following undisputed facts, which are

considered in the light most favorable to the Bonsalls, the parties opposing

summary judgment. See Angland v. Mountain Creek Resort, Inc., 213 N.J. 573,

577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).

      A. The Accident

      On May 17, 2015, William and his friend Michael Kreuger departed from

William's home in Gillette for a bicycle ride under clear and calm weather with

dry roads. They were riding on Whitenack Road, where they had ridden half a

dozen times before, which is intersected by railroad tracks for NJT's Gladstone

Line. Whitenack Road leading up to the railroad tracks is maintained by the

Township of Bernards, with the railroad tracks owned and maintained by NJT,

and the section of road following the intersection is maintained by the Borough

of Bernardsville.

      According to Kreuger's deposition testimony, he was riding about twenty

miles per hour approximately thirty yards behind William when he observed

William's bicycle wobble and fall while crossing the railroad tracks. Both


                                                                         A-4308-18T3
                                       4
bicyclists said they would normally apply their brakes at the Gladstone railroad

line intersection, Kreuger stating "because it's a steep hill that flattens out at the

railroad grade. So, you're reaching maximum velocity just before you get to the

tracks." Kreuger testified, "[William] was in full control of his bicycle until he

crossed the tracks . . . ."

      Looking at photos of the accident scene, taken the day after the accident,

Kreuger identified the exact location where William began to lose control of his

bicycle and where he fell. Kreuger recalled "that due to the combination of the

erosion of the macadam around the [railroad] tracks, and the fact that the track

itself is raised up somewhat from grade, . . . when [William] hit it with his front

wheel, that front wheel went out from under him."

      In his deposition testimony, William stated he was knocked unconscious

and has no recollection of the accident. However, regarding his perspective of

what caused him to fall, William recalled:

             At some point last year, there was a -- I'm sure that I
             had gone over with . . . Kreuger. Now in April of this
             year, my previous attorney's firm said that if I couldn't
             identify the specific pothole, they were no longer
             representing me. And then I had a conversation with
             . . . Kreuger where we looked at all the pictures
             presented, different angles, different parts of the road,
             apparently, on the date that this was taken, and were
             able to determine -- well, based on what he had shared
             with me, based on what he had witnessed, that this is

                                                                              A-4308-18T3
                                          5
             the state of disrepair that caused the accident, not the
             pothole, that is on the easterly side of the tracks.

Looking at a photo3 at his deposition, William pointed to an area stating, "the

pothole immediately west of the tracks was the damaged part of the road that

caused the accident."

       In support of William's liability assertions against NJT, his expert Andrew

Ramisch conducted a professional engineering analysis of the condition of the

roadway surface in the area where William lost control of his bicycle. Ramisch's

report states:

             The photographs . . . taken . . . the day following the
             incident . . . show a defect in the surface of the roadway
             . . . of sufficient size to throw a bicycle out of control
             by the operator. . . . The [NJT] officials responsible for
             the maintenance of Whiten[a]ck Road at the [NJT]
             railroad track should have had actual or constructive
             knowledge that the unreasonably dangerous condition
             of the roadway surface presented bicyclists with a
             hazard capable of causing harm.

       Ramisch further opined:

              "At the time of [William's] accident, there was an
               irregularity in the roadway surface at the crossing
               [where he reportedly fell]."

              "The deteriorated asphalt surface created a
               dangerous condition of public property that caused


3
    Marked for identification purposes as BNS-3.
                                                                          A-4308-18T3
                                         6
                [William] to lose control of his bicycle and to fall .
                . . ."

             "Had [NJT] promptly repaired Whiten[a]ck Road
              before the date of this incident, the chances of
              [William] being injured would have been reduced
              virtually to nil."

      William also retained cycling expert Lester Leatham, who authored a

report stating bicyclists are legally entitled to go as fast as they are comfortable

riding, up to the speed limit, and since there was no posted speed limit sign on

the road, the speed limit was fifty miles per hour. Leatham's report further

details signage on the road stating photos taken after the accident show an

"advisory sign indicating, 'BUMP' . . . , supplemented by an advisory speed

plaque . . . indicat[ing] a speed of [ten miles per hour]." Leatham maintained

advisory signs "are not regulatory signs and do not indicate speed limit

established by ordinance. The speed posted on an advisory plaque is a speed

recommendation, used when it may not be obvious to a driver that a safe speed

is below the speed limit." After reviewing bicycling best practices and behavior,

Leatham opined William was riding safely and reasonably and the poor

condition of the tracks was the major contributor to his accident.




                                                                            A-4308-18T3
                                         7
      B. Railroad Track Maintenance

      NJT Hoboken Line Engineer David Lobyocz was deposed regarding

maintenance of the railroad crossing. Lobyocz testified exhibits of pictures of

the crossing depicted the condition of the asphalt surrounding the rails as

"basically mostly intact[,]" with "some small gaps" and "[a] small amount of

erosion." However, Lobyocz stated he could not tell how long the condition had

existed, what caused it, or whether NJT was notified about it. He believed the

condition could be the result of weather, traffic, or other causes.

      Regarding NJT's inspection procedures, Loboycz stated "[o]ur track is

inspected once a week by track inspectors. . . . It's not a specific inspection for

a crossing. . . . [T]hey'll inspect the entire line from Point A to Point B, and the

crossing would be included as every other crossing would be included."

Loboyocz indicated after a rail is inspected an inspection form is filled out

whether any repairs are warranted, and those reports are retained for two years

pursuant to Federal Railroad Administration regulation.

      When asked whether NJT should have an inspection report for the

Whitenack crossing at the time of the incident, Loboyocz indicated he did not

believe a report was available. He stated he inquired about the records to a track

supervisor who told him they were not retained.           During the deposition,


                                                                            A-4308-18T3
                                         8
Loboyocz was given a logbook which referenced an incident involving a train

at the crossing. He stated the first logged incident at the crossing is dated July

1, 2013, around twenty-two months before William's accident, and the date of

the next logged incident was September 29, 2015, more than four months after

William's accident.

      Loboyocz indicated the primary purpose of the inspections are to maintain

the safe passage of trains, but that "everything would be taken into consideration

as far as if it was deemed unsafe" including pedestrians, cyclists and cars. When

addressing defects in the asphalt at rail crossings, he stated NJT waits for a

phone call, "either a complaint from customer service or sometimes the state

Department of Transportation would say, 'you should patch this crossing,' and

we would have the guys go out with some cold patch and fill in any hole that

was . . . a problem."

      C. The Bonsall's Marital Relationship

      William and Sheri were married and living together at the time of the

accident, but they separated a year and four months afterwards in September

2016. After their former marital home was sold, Sheri moved to Florida in April

2017. She later returned New Jersey in May or June of 2018 but continues to

live separately from William.


                                                                          A-4308-18T3
                                        9
                                       II.

      On March 6, 2019, the motion judge issued orders granting NJT and

Bernardsville 4 summary judgment and dismissing the Bonsalls' complaint in its

entirety with prejudice. The order was accompanied by a sixty-page written

opinion.

      In the opinion, the judge explained that given NJT's status as a public

entity, Muhammad v. N.J. Transit, 176 N.J. 185, 188 (2003), NJT was not liable

for Williams' bike accident under N.J.S.A. 59:4-2. The statute provides:

            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

4
  The order granting summary judgment to Bernardsville is not being appealed;
thus, it is not discussed in this opinion.
                                                                         A-4308-18T3
                                       10
            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.

            [Ibid.]

      Citing Vincitore v. Sports & Exposition Auth., 169 N.J. 119, 125 (2001),

the judge determined the Bonsalls did not establish a prima facie case of

dangerous condition liability under N.J.S.A. 59:4-2 by proving the following

five elements:

            1. . . .The existence of a physical defect which creates
            a substantial risk of injury to all persons when the
            property is used with due care in a foreseeable manner.
            N.J.S.A. 59:4-2; N.J.S.A. 59:4-1(a).

            2. . . . Notice that the alleged defect existed is not
            sufficient; plaintiff must prove that the public entity
            had:

            (a) notice of its dangerous character; and

            (b) actual or constructive notice of the dangerous
            condition in sufficient time prior to the inquiry to
            protect against the dangerous condition; or any
            employee of the public entity acting within the scope of
            his/her employment either created the dangerous
            condition, or by his/her inaction, allowed the dangerous
            condition to be created. N.J.S.A. 59:4-2; N.J.S.A. 59:4-
            1(b); N.J.S.A. 59:4-3.

            3. . . . The defect proximately caused plaintiff's injury.
            N.J.S.A. 59:4-2.



                                                                         A-4308-18T3
                                       11
             4. . . . The kind of injury plaintiff sustained was a
             reasonably foreseeable risk of the condition. N.J.S.A.
             59:4-2.

             5. . . . [T]he action or inaction of the public entity in
             respect to its effort to protect the condition of the
             property was palpably unreasonable. That standard has
             been described to be conduct that is outrageous,
             arbitrary or obviously without reasonable basis.

      Regarding the first, third, and fourth elements, the judge found the

Bonsalls failed to produce evidence "with any reasonable certainty and

specificity" of a dangerous condition which caused William's fall and injury.

The judge reasoned Krueger's identification of the alleged "defect was

speculative, at best," given it was three years after the accident and he was riding

some thirty yards behind William. The judge did not discuss the Bonsall's

experts' reports and noted William himself "could not identify the spot" on the

railroad tracks that caused his fall.

      Regarding the second element, the judge found the Bonsalls presented no

competent evidence which would enable a jury to find NJT had actual or

constructive notice of the alleged defect. As to actual notice, the judge pointed

out there was no evidence anyone employed or supervised by NJT saw or was

aware of any alleged defect at the crossing, and there was no inference of actual

notice based on NJT's weekly inspections. Regarding constructive notice, the


                                                                            A-4308-18T3
                                        12
court found nothing in the record indicated the length of time the alleged

condition existed before William's accident, thus there could be no inference of

constructive notice that NJT "should have or must have seen the dangerous

condition because [it] made regular and periodic inspections." In support, the

judge cited to Polzo v. Cty. of Essex, 196 N.J 569, 581 (2008), where our

Supreme Court held the "mere existence of an alleged dangerous condition is

not constructive notice of it."

      The judge also found the Bonsalls failed to prove NJT's conduct was

palpably unreasonable as required by the fifth element. Citing Coyne v. N.J.

Dep't of Transp., 182 N.J. 481, 493 (2005), the judge noted generally the

plaintiff has the burden to prove palpable unreasonableness as an element to

establish dangerous condition liability under N.J.S.A. 59:4-1 to -3, whereas the

defendant has the burden to prove an exception to discretionary immunity under

N.J.S.A. 59:2-3(d). As NJT had not raised discretionary immunity, the judge

found the onus was on the Bonsalls to prove palpable unreasonableness. The

judge determined because the Bonsalls could not indicate, without speculation,

the exact defect which caused the accident, or how long it had existed, they were

unable to demonstrate NJT failed to exercise due care and its conduct was

palpably unreasonable in not detecting and correcting the dangerous condition.


                                                                         A-4308-18T3
                                      13
      The Bonsalls filed a motion for reconsideration which the judge denied in

an April 26, 2019 order, setting forth his reasons in a written decision. For the

most part, the judge cited a substantial amount of his summary judgment

decision. The judge rejected the Bonsalls argument the summary judgment

order invaded the jury's province by incorrectly deciding there was not a

dangerous condition on the railroad tracks in contravention of Kreuger's

deposition testimony and the expert opinion of Leatham. The judge reiterated

his ruling the Bonsalls failed to prove a dangerous condition caused William's

accident by reiterating Krueger's account – the lone eyewitness given William

could not recall how he fell – was insufficient given that during his deposition

he twice speculated the deteriorating pavement was the dangerous condition

which caused the accident.      The judge noted the Bonsalls' experts never

conducted their own inspections to determine the cause of the accident nor did

they reconcile their opinions with Kreuger's testimony or take into consideration

the speed William was travelling at the time of the accident.

      Regarding actual or constructive notice of a dangerous condition, the

judge rejected the Bonsalls' contention he failed to consider NJT's weekly

inspections and the obvious erosion around the railroads tracks as evidenced by

photos of the accident area which could allow a jury to infer notice on NJT. The


                                                                         A-4308-18T3
                                      14
judge held the contention was speculative because the proofs could not confirm

when and how long the alleged dangerous condition existed, therefore the

Bonsalls' could not satisfy their burden of proving a prima facie case of

dangerous condition liability.

      Finally, the judge pointed out the Bonsalls did not address his ruling that

they did not prove NJT's failure to correct the alleged dangerous condition was

palpably unreasonable, therefore his decision should not be reconsidered as

incorrect.

      This appeal ensued.

                                      III.

      We review a ruling on a summary judgment motion de novo, applying the

same standard governing the trial court. Conley v. Guerrero, 228 N.J. 339, 346

(2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of

Pittsburgh, 224 N.J. 189, 199 (2016)). Thus, we consider, as the motion judge

did, "whether 'the competent evidential materials presented, when viewed in the

light most favorable to the non-moving party, are sufficient to permit a rational

factfinder to resolve the alleged disputed issue in favor of the non-moving

party.'" Holmes v. Jersey City Police Dep't, 449 N.J. Super. 600, 602-03 (App.

Div. 2017) (citation omitted) (quoting Brill v. Guardian Life Ins. Co. of Am.,


                                                                         A-4308-18T3
                                      15
142 N.J. 520, 540 (1995)). "If there is no genuine issue of material fact, we

must then 'decide whether the trial court correctly interpreted the law.'"

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.

325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J.

Super. 486, 494 (App. Div. 2007)). We review issues of law de novo and accord

no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213

N.J. 463, 478 (2013).

      The Bonsalls contend summary judgment was not proper because there

were genuine issues of material fact regarding the existence of a dangerous

condition of deteriorated asphalt around NJT's railroad, which under N.J.S.A.

59:4-2 made NJT liable for William's accident. They also contend summary

judgment was not proper because, in accordance with N.J.S.A. 59:4-2 and

N.J.S.A. 59:4-3, they established the dangerous condition of deteriorated asphalt

around NJT's railroad was the proximate cause of William's accident, and NJT

had notice of the defect but its failure to properly maintain the crossing and

eliminate the defect was palpably unreasonable.

      The fundamental principles embodied in the TCA include the notion that

governmental immunity is the rule unless the Act itself creates an exception.

Kepler v. Taylor Mills Developers, Inc., 357 N.J. Super. 446, 453 (App. Div.


                                                                         A-4308-18T3
                                      16
2003). As we have also said, in enacting the TCA "[t]he Legislature had rejected

the concept of a statute that imposed liability with specific exceptions . . . .

[Instead], public entities are immune from liability unless they are declared to

be liable by enactment." Macaluso v. Knowles, 341 N.J. Super. 112, 117 (App.

Div. 2001) (second and third alterations in original). Of necessity, a public

entity must retain the power and discretion to determine how to allocate scant

resources. Suarez v. Dosky, 171 N.J. Super. 1, 9 (App. Div. 1979).

      N.J.S.A. 59:4-2 states a public entity is liable if a plaintiff establishes: (1)

"public property was in a dangerous condition at the time of the injury;" (2) "the

injury was proximately caused by the dangerous condition;" (3) "the dangerous

condition created a reasonably foreseeable risk of the kind of injury which was

incurred;" and (4) "a negligent or wrongful act or omission of [a public]

employee . . . created the dangerous condition;" or "a public entity had actual or

constructive notice of the dangerous condition . . . ."      Additionally, a public

entity is not liable for a dangerous condition of its property if "the action the

entity took to protect against the condition or the failure to take such action was

not palpably unreasonable." Ibid. The claimant has the burden to prove the

public entity's action or inaction was palpably unreasonable. Coyne, 182 N.J.

at 493.


                                                                              A-4308-18T3
                                        17
      A. Existence of Dangerous Condition

      The TCA defines "dangerous condition" as "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." N.J.S.A.

59:4-1(a). Our jurisprudence regarding whether a condition of public property

is in a dangerous condition does not illuminate, as a matter of law, whether the

condition plaintiffs complain of meets the standard. Therefore, "the critical

question . . . is whether a reasonable factfinder could have concluded that

plaintiff demonstrated that the property was in a 'dangerous condition.'"

Vincitore, 169 N.J. at 124.

      Based "under [our] indulgent summary-judgment standard of review,"

Polzo, 209 N.J. at 75, in which the record must be viewed in the light most

favorable to the Bonsalls, we disagree with the motion judge that they did not

establish sufficient proof the dangerous condition of deteriorated asphalt

surrounding the railroad tracks caused William's accident.        Although the

Bonsall's evidence, primarily based on Krueger's recollection of the accident, is

open to credibility attack, for summary judgment purposes we must accept it

instead of discounting it as the judge appeared to do.




                                                                         A-4308-18T3
                                      18
      Kreuger testified William wobbled on his bicycle and fell immediately

after crossing the railroad tracks. Kreuger was able to identify the exact location

of William's fall and defects in the road which he logically concluded caused

William's accident. The Bonsalls' expert witnesses also opined the defect was

"of sufficient size to throw a bicycle out of control" and "the poor condition of

the tracks was the major contributor to the crash." Further, NJT's Engineer,

Lobyocz, testified to seeing "some small gaps" and "[a] small amount of

erosion" around the railroad tracks. He further indicated that while the primary

purpose of the railroad inspections is to maintain the safe passage of trains,

"everything would be taken into consideration as far as if it was deemed unsafe"

including pedestrians, cyclists and cars.

      We disagree with the judge that the Bonsalls did not establish sufficient

proof the dangerous condition of deteriorated asphalt surrounding the railroad

tracks caused William's accident. The judge's determination that Kreuger's

testimony was only speculative based on his seemingly inconsistent deposition

statements regarding the exact defect which caused William's accident is a

credibility determination to be made by a finder of fact and not a legal

determination made by a judge on a summary judgment motion. Accepting the

facts in the light most favorable to the Bonsalls, they have demonstrated William


                                                                           A-4308-18T3
                                       19
was riding his bicycle with due care on a public roadway where it was

foreseeable he would be riding when he encountered a dangerous condition

which caused his accident and injuries. Therefore, the Bonsalls have shown a

reasonable jury could find a dangerous condition existed under the TCA.

      We would also agree if the Bonsalls established a dangerous condition

existed at the time of William's accident, a jury could similarly conclude the

dangerous condition was the proximate cause of his accident and created a

reasonably foreseeable risk of the kind of injuries he sustained. See Daniel v.

N.J. Dep't of Transp., 239 N.J. Super. 563, 595 (App. Div. 1990) (quoting

Polyard v. Terry, 160 N.J. Super. 497, 511 (App. Div. 1978)) ("Proximate cause

is 'any cause which in the natural and continuous sequence, unbroken by an

efficient intervening cause, produces the result complained of and without which

the result would not have occurred.'").

      There is no evidence in the record there was any superseding factor which

led to William losing control of his bicycle. Likewise, as the Bonsalls provided

evidence that William was riding his bicycle with due care, it would also be a

question for a jury whether the complained of dangerous condition created a

reasonably foreseeable risk he would crash and become injured.




                                                                        A-4308-18T3
                                      20
      B. Notice of Dangerous Condition

      Turning to the requirement the Bonsalls had to prove notice of the

dangerous condition to sustain liability against NJT, we agree with the judge

they fell short in doing so. Therefore, dismissal of their complaint was proper.5

There is little doubt there was no proof NJT had actual notice of the dangerous

condition which caused William's accident. Thus, the Bonsalls stress NJT had

constructive notice of the dangerous condition.

      Constructive notice of a dangerous condition by a public entity under

N.J.S.A. 59:4-2 occurs "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 condit ion

and its dangerous character." N.J.S.A. 59:4-3(b).

      There are various ways a plaintiff can demonstrate constructive notice.

The appearance of the dangerous condition can show constructive notice. See,

e.g., Chatman v. Hall, 128 N.J. 394, 418 (1992) (finding the size of a pothole



5
  While a plaintiff can alternatively establish a cause of action under N.J.S.A.
59:4-2 by showing an employee of a public entity created the condition
complained of, N.J.S.A. 59:4-2(a), the Bonsalls do not argue this theory, which
has otherwise been precluded under the factual scenario presented. See Polzo,
209 N.J. at 66 (finding public entities do not create a dangerous condition under
N.J.S.A. 59:4-2(a) by inadequately inspecting its property).
                                                                         A-4308-18T3
                                      21
can indicate it existed long enough that a public entity may have had

constructive notice of its existence); Lodato v. Evesham Twp., 388 N.J. Super.

501, 505-04, 512 (App. Div. 2006) (holding whether the defendant township had

constructive notice was a question for a jury when the pedestrian plaintiff

tripped and fell due to a defect on a sidewalk which had been in existence for at

least eighteen years); Milacci v. Mato Realty Co., Inc., 217 N.J. Super. 297, 302-

03 (App. Div. 1987) (finding a large accumulation of dirt and sand on the floor

of an office can indicate a public entity may have had constructive notice of its

existence). Additionally, prior accidents at the same location of the dangerous

condition can create an issue of fact as to constructive notice. Wymbs v. Twp.

of Wayne, 163 N.J. 523, 536 (2000). Nonetheless, our Supreme Court has

determined, as a matter of public policy, injured bicycle riders seeking relief

under the TCA face a higher standard to prove a defendant had notice of a

defective condition on a public roadway lacking bicycle lanes. See Polzo, 209

N.J. at 71-72.

      For the reasons substantially stated by the judge in his written opinion, we

reject the Bonsalls' contention that NJT had constructive notice of the dangerous

condition that caused William's accident. We add the following.




                                                                          A-4308-18T3
                                       22
      Like in Polzo, and unlike in Chatham, Lodato, Milacci, and Monaco, the

Bonsalls have not presented any evidence the area in question was primarily

intended for bicycle riding. To the contrary, Lobyocz testified the primary

purpose of the rail inspections are to maintain the safe passage of trains,

although "everything would be taken into consideration as far as if it was

deemed unsafe" including pedestrians, cyclists and cars. Similar to the plaintiff

in Polzo, the Bonsalls have not presented any recognized or established standard

for determining when a road condition at a railroad crossing presents a

dangerous condition when used for its generally intended purpose. They offered

no evidence the shoulder of the road where the accident took place was

designated as a bicycle lane. Even though William and Kreuger testified to

riding their bicycles over the tracks several times prior to the accident, they

reported no prior accidents, and there was no evidence any other person had

complained of the road condition prior to the accident. Because the defect was

at a public railroad crossing whose primary purpose is to allow the passage of

trains and motor vehicles, constructive notice cannot be inferred when William

was riding a bicycle without proof the dangerous condition could have also

caused injury to those travelling by car or rail. Furthermore, no competent




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                                      23
evidence was presented indicating the length of time that erosion around the

railroad track existed.

      C. Palpably Unreasonable Conduct in Eliminating Dangerous Condition

      Given our conclusion NJT did not have actual or constructive notice of

the dangerous condition which caused William's accident, the agency's failure

to repair it cannot be viewed as palpably unreasonable under the TCA. 6 "The

mere '[e]xistence of an alleged dangerous condition is not constructive notice of

it.'" Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013)

(alteration in original) (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42

(Law Div. 1990)). It therefore follows, absent actual or constructive notice, the

public entity cannot have acted in a palpably unreasonable manner. See Maslo

v. City of Jersey City, 346 N.J. Super. 346, 350-51 (App. Div. 2002).

      Yet, even if we conclude there was actual or constructive notice of the

dangerous condition, the Bonsalls have not presented any facts showing NJT's

conduct was palpably unreasonable. Apart from proof of notice, to establish



6
  The Bonsalls failed to prove either the dangerous condition was caused by an
act or omission of an NJT employee or NJT had actual or constructive notice of
the dangerous condition. Polzo, 209 N.J. at 66-67 (a public entity's inadequate
inspection of property does not affirmatively create a dangerous condition which
would allow a cause of action under N.J.S.A. 59:4-2 upon finding the entity
lacked actual or constructive notice).
                                                                         A-4308-18T3
                                      24
liability against a public entity under N.J.S.A. 59:4-2, a claimant must establish

a prima facie case that the action or inaction of the public entity was "palpably

unreasonable."    Coyne, 182 N.J. at 493; Maslo, 346 N.J. Super. at 349.

Similarly, N.J.S.A. 59:2-3(d) provides,

            A public entity is not liable for the exercise of
            discretion when, in the face of competing demands, it
            determines whether and how to utilize or apply existing
            resources, including those allocated for equipment,
            facilities and personnel unless a court concludes that
            the determination of the public entity was palpably
            unreasonable.

      "[The] subsection incorporates the thesis that once resources have been

provided a public entity may be liable for its determination of priorities in the

application of such resources if that determination is palpably unreasonable."

Margolis & Novack, Claims Against Public Entities, 1972 Task Force Comment

on N.J.S.A. 59:2-3(d) (2020). "Broadly speaking [N.J.S.A.] 59:2-3 provides that

there shall be no liability for the decision-making process of public entities."

Margolis & Novack, cmt. 1 on N.J.S.A. 59:2-3.

      Palpable   unreasonableness     implies    "'behavior   that   is   patently

unacceptable under any given circumstance.'"      Polzo 209 N.J. at 75 (citing

Muhammad, 176 N.J. 185, 195–96). "When a public entity acts in a palpably

unreasonable manner, it should be 'obvious that no prudent person would approve


                                                                          A-4308-18T3
                                       25
of its course of action or inaction.'" Id. at 76 (citing Muhammad, 176 N.J. 185,

195–96). Said another way, palpably unreasonable conduct "implies a more

obvious and manifest breach of duty" than negligence, "and imposes a more

onerous burden on the plaintiff." Williams v. Town of Phillipsburg, 171 N.J.

Super. 278, 286 (App. Div. 1979).

       Whether the public entity's behavior was palpably unreasonable is

generally a question of fact for the jury.      See Vincitore, 169 N.J. at 130.

However, a determination of palpable unreasonableness, "like any other fact

question before a jury, is subject to the court's assessment whether it can

reasonably be made under the circumstances presented." Maslo, 346 N.J. Super.

at 351 (quoting Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452

(App. Div. 1993)). Accordingly, "the question of palpable unreasonableness may

be decided by the court as a matter of law in appropriate cases." Id. at 350 (citing

Garrison v. Twp. of Middletown, 154 N.J. 282, 311 (1998)).

       The record in this case convinces us, as a matter of law, NJT's actions

pertaining to the failure to repair the erosion around the railroad track was not

palpably unreasonable. There is no dispute NJT's inspection of its railroads

tracks was a discretionary activity.      Given the limited resources of public

entities, it is not within our power to impose a more comprehensive pothole


                                                                            A-4308-18T3
                                        26
inspection and repair program on NJT. See Polzo, 209 N.J. at 69. As noted,

there was no reported concern of asphalt deterioration around the railroad tracks

where William's accident occurred.      There was no proof NJT's inspection

program was unreasonable. Under these circumstances, no rational factfinder

could find it was palpably unreasonable for NJT not to have repaired the asphalt

deterioration which caused William's unfortunate injury.

                                      IV.

      Given our conclusion it was proper to dismiss the Bonsalls' complaint on

summary judgment because they failed to show NJT had actual or constructive

notice of the dangerous condition which caused William's accident and failed to

show NJT was palpably unreasonable in failing to repair it, it is not necessary

to address the summary judgment dismissal of Sheri's loss of consortium claim

as it is derivative of William's liability contention against NJT.7 See Weir v.

Mkt. Transition Facility of N.J., 318 N.J. Super. 436, 444 (App. Div. 1999)

(citing Tichenor v. Santillo, 218 N.J. Super. 165, 173 (App. Div. 1987)) (holding

a derivative claim can rise no higher than the personal injury claim of the other

spouse). However, for the sake of completeness, had we reversed the motion


7
  The motion judge's written decision did not specifically address Sheri's claim.
We presume it was because his ruling the Bonsalls failed to establish liability
against NJT effectively precluded her claim.
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                                      27
judge's ruling by reinstating William's claim against NJT, the same would have

applied to Sheri's claim despite their continued separation beginning a little

more than a year after the accident.

         The Bonsalls allege William's severe injuries from the accident took a toll

on Sheri's quality of life, and unfortunately strained their marriage.        Thus,

accepting these allegations as true for the purpose of determining summary

judgment does not preclude Sheri's per quod claim. The Bonsalls' separation

does not, as NJT contends, bar her claim. In fact, depending on the proofs, a

factfinder could have awarded her damages due to the impact of William's

accident on their marriage. Yet, because we conclude the Bonsalls cannot

establish labiality against NJT under the TCA, Sheri cannot pursue her claim at

trial.

         Affirmed.




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