Could you imagine government employees making repeated repairs to a continuously recurring sinkhole, but not putting up signs or cones around it to warn innocent third parties of danger? Well, the answer might be “Of course I can!” But this story of negligence should still be filed under the “Impressive” category. The injured plaintiff, Constance Childs-Abdullah and her husband (collectively “Abdullah”) filed suit against the City of Somers Point (“Somers Point”) alleging negligence after Constance suffered a fractured left foot and spinal injuries when she stepped into a sinkhole in the parking lot of the municipal complex in Childs-Abdullah v. City of Somers Point, Superior Court of New Jersey, Appellate Division, Docket No.: A-4255-11T1. The trial court reviewed the brief in support of summary judgment filed by Somers Point and determined the complainant was unable to present sufficient evidence to defeat summary judgment. Abdullah appealed the ruling and the appellate court reversed in their favor. Plaintiffs argued Somers Point was on notice of the sinkhole and the following actions taken by the employees were “palpably unreasonable.”

Summary judgment rulings by a trial court are reviewed de novo and in the light most favorable to the nonmoving party (in this case, the plaintiff). The facts presented to the court advanced that around 9:00 in the evening, plaintiffs were leaving the municipal building.

Mr. Abdullah opened the held the car door open for his wife. As she was about to enter the vehicle, she stepped into a depression in the pavement. She became unbalanced as the sinkhole caused her loose her balance. She reached out for the top of her vehicle while her husband grabbed hold of her. Through the course of this incident, Constance sustained her injuries. The depression was “equal in diameter to the length of a passenger car [and] was the same color asphalt as the surrounding pavement.”

Crucial to the reversal of the summary judgment was the testimony provided by one of the public works employees, Guy Martin, (“Martin”). Martin was the supervisor of the City’s public works department and described the indentation as a “sinkhole.” He testified that sometime prior to the personal injury, the deputy city clerk informed him there was a sinkhole in the parking lot. Martin stated that “A couple of our guys went down there [in response], saw it was a sinkhole, cut the sinkhole out, filled it with some dirt and then with some crushed concrete and tamped it down and then put asphalt on top of it again and repaired it.” Subsequently, according to Martin’s testimony, the sinkhole re-emerged, which was reported by the deputy clerk. The court opinion explains “Each time public works staff repaired the sinkhole, the same repair method was utilized.” This exchange occurred with Martin:

Q. So based on past experiences you were hoping that even though the problem had recurred, that you were hopeful that a second time it wouldn’t happen again, right?

A. Correct.

Martin continued to elaborate that the sinkhole appeared in either days or weeks worth of time and depended on factors such as the weather and “how many tires hit it.”

For Somers Point to be held liable for a negligence action arising from the condition of its premises, the public entity such as a city must have had “actual” or “constructive” notice of the dangerous condition, and the public entity must have acted in a “palpably unreasonable manner.” The defense argued plaintiffs did not present enough evidence for a jury to determine Somers Point had actual or constructive notice of the sinkhole and acted in a palpably unreasonable manner. The reviewing court disagreed and found a rational fact-finder (like a juror) could find this was the case, and that the plaintiff needs to have a trial on the matter.

The Superior Court held the “[c]ity indisputably had actual notice. [T]he [c]ity also had constructive notice that, even after the [c]ity repaired the pavement depression in the parking lot, it remained a dangerous condition because it was susceptible to subsidence again at any time.” The court elaborated explaining that the dangerous condition was not the re-emerged depression, but the instability of the repair and the risk of a re-emerged depression. “A jury could conclude that Martin was aware of that risk from the moment the repair was complete.” A juror could find that it was palpably unreasonable for Somers Point not to place any kind of sign such as cones around the sinkhole until it was properly repaired.

Interestingly, the Supreme Court of New Jersey granted Somers Point petition for certification in October of 2013. However, a stipulation of dismissal was filed by the parties in July of 2014.