Pot Hole Victim said:
while traveling down a county road i went through a very large pothole. the police officer that took information from me suggested i contact the county to be reimbursed for any expenses "because the county allowed the road to be in such poor contidion." after spending over $800 to pay for damages to our vehicle i sent copies of all bills paid to the county of camden. when my claim finally reached their insurance company the insurance company responded to me stating that accorting to the tort claims act n.j.s.a. title 59 there must be indisputable proof that the state/municipality or it's employees acted in a manner that could be considered "palpably unreasonable". they said that they did not have actual or contructive notice of the pothole in question until after my accident. they declined any voluntary payments. this was a very large pothole and i'm sure it did not "grow over night". can you give me any information on title 59? is there anything else i can do to be reimbursed by the county without going through my insurance? is it necessary for me to take them to small claims court?
My response:
You are correct. The pothole didn't "grow overnight". The adjuster for the Governmental Entity is not telling you the whole story (gee, surprise, surprise). This is because it's not in the best interests of the entity to use taxpayer dollars to pay for private debts, and is attempting to use "statutoty immunity" as a defense. A public entity is liable if the injury occurred on property that it owned or controlled.
This is because, not only is the "immunity" lawful, but because you're trying to represent yourself and the Entity is not taking you seriously. What the Entity adjuster is arguing is "actual notice" and using that as a sledghammer against you. What he is not telling you is there is also "constructive notice" (and take special notice of the "or" in the following):
(i) the condition must have been created by a negligent or wrongful act or omission of an employee within the scope of his or her public employment, or
(ii) the entity must have had "actual or constructive notice" of the condition sufficiently before the injury to have taken measures to protect against the risk involved (either by repairing the condition, providing safeguards against the risks, or warning of the potential harm).
Constructive Notice is that reasonable length of time that the pothole had been in existence, and that the Entity should, and could have known, upon reasonable inspection of its property, would have discovered that the pothole was in existence; e.g., 2 or 3 days prior to your incident, depending upon how well traveled the roadway.
This is why your statement, "didn't grow overnight" is important, and a valid argument.
Unfortunately, this is not a case that the average attorney would take. Therefore, I can only foresee that you'll have to sue the Entity in Small Claims court.
Good luck to you.
IAAL
[Edited by I AM ALWAYS LIABLE on 02-23-2001 at 05:44 PM]
