Case of the Day – Tuesday, February 20, 2018

A DEFENDANT MUST BE FOUND

About a decade ago or so, my daughter Leslie – fresh out of college – was spending a year in Vladivostok, Russia, on a Fulbright Fellowship. Along with learning to play the balalaika and sampling dozens of varieties of vodka, she learned that your average Russian is a lot like your average American.

One evening, she and a friend were crossing the street at an intersection when a young Russian couple, in a hurry to pick up their son from daycare, were sitting impatiently behind a driver turning left. The light changed, the left-turner turned, and – just like just about every driver in the world, the young Russian husband burst through the light, now red. Unfortunately, he collided with my daughter, who went up on the hood of the car, and then slid to the ground. At some point in Leslie’s unplanned flight, her leg was broken.

The driver and his wife were distraught at what their negligence had caused, and they bundled my daughter into the back seat of the car and drove her to an emergency unit. The next day, Leslie’s Russian friends visited her in the hospital, and during all of the talk about the accident, someone asked Leslie whether she had filed a police report. My daughter already knew from the State Department that she would have come back to the United States for treatment, American confidence in Russian medicine not being that high. So Leslie told her Russian friends it was just an accident, and there would be no point filing a report with the Primorsky Krai Directorate for Internal Affairs (we know them as Управления МВД России по Приморскому краю).

Leslie’s Russian friends were appalled. “But, but… ” one of them sputtered, “he must be punished!”

They’re just like us. When there is a terrible accident, any good plaintiff’s lawyer knows that you tell the jury the story with just the right amount of drama and pathos, and pretty soon, the jurors are looking around the courtroom for someone to blame. After all, there was injury and suffering and pain. Someone must pay!

But’s not the way real life is. You can ask Cassandre and Rachele, who the young daughters of Joel Baudouin. Joel was driving his mother and the girls down New Jersey’s Garden State Parkway late one dark and stormy night, when an 80-foot tall hickory tree fell on his car. Joel and his mother perished. The girls were injured.

The girl’s mother sued on their behalf, naming a thundering herd of defendants, including the New Jersey Turnpike Authority, a public entity established in 2003 to operate the Garden State Parkway. Mom alleged the Turnpike Authority negligently failed to “properly maintain, remove, inspect, secure or otherwise properly care for the rotting, falling, dead and decaying trees adjacent to the roadway in the area of the accident.”

Everyone agreed the Turnpike Authority lacked actual notice the hickory tree was rotten (as it surely was). The only issue was whether the Authority had constructive notice of the tree’s deteriorated condition, and that turned on whether the Authority’s “drive by” inspection program was reasonable. And this is where governmental units, vulnerable to lawsuits only to the extent permitted by state tort claims act, need only show they have used their discretion in a reasonable way. Here, no matter how much Mom’s tree experts argued that a 360-degree walk-around was the only acceptable was to inspect a tree (and such an inspection would have discovered the dangerous hickory tree), the court agreed that the extent of the inspection task and the resources available to the Authority required that the Turnpike Authority be held to a lesser standard.

We are often adjured not to let the perfect become the enemy of the good. Under state tort claim statutes, that rarely happens.

Baudouin v. New Jersey Turnpike Authority, Case No. A-3903-13T2 (Super.Ct. N.J., Mar 1, 2017) 2017 N.J. Super. Unpub. LEXIS 1085, 2017 WL 1548708. Just after midnight on Christmas, 2008, Joel Baudouin was driving southbound on the Garden State Parkway. His mother sat next to him, while his two daughters sat in the backseat. A hickory tree, measuring eighty feet high and twenty-one inches wide, fell across the three southbound lanes of the Parkway and crushed the front passenger compartment of the car. Joel and his mother were killed. The children, who were initially trapped inside the backseat, were injured.

The kids’ mother filed a civil suit against a number of public entities and one private contractor. Finally, only the Turnpike Authority remained. The plaintiffs argued the Turnpike Authority negligently failed to “properly maintain, remove, inspect, secure or otherwise properly care for the rotting, falling, dead and decaying trees adjacent to the roadway in the area of the accident.”

The trial court granted summary judgment to the Turnpike Authority, holding the plaintiffs failed to produce evidence showing the Turnpike Authority had “actual or constructive notice” of the tree’s deteriorated condition.

Mom and the girls appealed.

Held: The Turnpike Authority was not liable. At the time of the accident, the Authority was responsible for inspecting the 172-mile long Parkway, which was tree-lined over much of its length both northbound and southbound and in the median and had more than 300 tree-lined shoulder miles to inspect. In order to accomplish this, the Authority employed what it called the Hazard Tree Inspection Program, which “consists of making periodic ‘windshield inspections’ of the trees that can impact the roadway,” according to the Authority’s witness. The Authority’s inspectors inspected Parkway trees while seated in the front passenger-seat of a car that drove at approximately ten to fifteen miles per hour along the shoulder of the Parkway. If something was spotted that indicated a potential serious problem with a tree, the driver was would stop the vehicle so that the tree could be inspected further. At that point, a determination would be made as to what, if anything, had to be done with the tree and at what priority based on the seriousness of the problem.

Of the 554 trees listed in the January 2007 Hazard Tree Inventory, only five trees were identified in the vicinity of where the accident occurred. Three trees were identified as high priority and two were marked as immediate priority.

Mom’s experts examined the fallen tree, and concluded it was rotten to the core. Both said the decay was only visible from the side of the tree away from the road, and they said a walk-around with a 360-degree close visual inspection of individual trees was the only method sanctioned by the industry. They did not address the Authority’s contention an individualized walk-around inspection was not applicable to a six-lane 172-mile long road with 300 miles of shoulder space.

These guys might walk 500 miles, but the Turnpike Authority’s inspectors were riding…

The Superior Court noted that the Legislature intended the New Jersey Tort Claims Act “to serve as ‘a comprehensive scheme that seeks to provide compensation to tort victims without unduly interfering with governmental functions and without imposing an excessive burden on taxpayers.'” The purpose of the TCA is to shield public entities from liability, subject only to the TCA’s specific liability provisions. Thus, the Superior Court ruled, when a court is required to balance the liability and immunity provisions of the TCA, “immunity is the rule and liability the exception.”

The TCA defines a 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.” The Superior Court said, “80-foot tall trees are not inherently dangerous. The Garden State Parkway is a three-lane wide highway, running 172 miles north and south, with 300 miles of shoulder. The eighty-foot tall hickory tree that fell at milepost 151.5 on December 25, 2008, is one of thousands, if not millions, of similar trees abutting or near both sides of the Parkway. Neither this record nor the Parkway’s history suggests that this tragedy occurs frequently.”

Given the length of the Parkway and the number of trees involved, the Court held, “it is patently unreasonable to expect the Turnpike Authority to conduct [walk-around] inspections. Therefore, as a matter of law, we conclude that, at the time of the accident, neither the Parkway nor the trees situated nearby constituted a dangerous condition under N.J.S.A. 59:4-1(a) because they were used with due care in a manner in which it is reasonably foreseeable that they would be used.”

Under the New Jersey TCA, a public entity has constructive notice of a dangerous condition “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.” N.J.S.A 59:4-3(b).  The mere existence of an alleged dangerous condition is not constructive notice of it.

– Tom Root

TNLBGray140407

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