This Tort Claims Act case arises from a now-deceased plaintiff's bicycle accident on a two-lane public road that straddled two municipalities. The accident occurred on a stretch of the road that was chronically pitted with potholes, apparently due to drainage and freezing problems. According to the deposition testimony of a local public safety director, potholes at that location had to be patched and re-patched "hundreds" of times in the five years before the accident. Several citizens periodically reported the road's poor condition before the accident. The road had no full-sized shoulders or designated bike lanes.
Plaintiff swerved his bicycle to avoid a passing truck, and lost control and fell when his tires hit the potholes. Plaintiff's engineering expert opines that incorrect methods had been used to patch the road. The expert further has opined that the persisting uneven surfaces were dangerous, not only for bicycles but also for motorcycles.
This opinion clarifies and extends the principles of Polzo v. County of Essex, 196 N.J. 569 (2008) ("Polzo I") and Polzo v. County of Essex, 209 N.J. 51 (2012) ("Polzo II"), concerning roadway surface conditions that endanger the safety of bicyclists on public roads. In a fact pattern involving a bicycle accident on a road's potholed shoulder, the Court held in Polzo II that the public entity defendant had no duty to maintain the shoulder to an extent safe for bicyclists. Id. at 70-75. The Court distinguished that no-duty-to-bicyclists situation from a roadway condition that also happens to be unsafe for motorized vehicles. Ibid.
This court applies the rationale of Polzo II here to this bicycle accident that occurred in a vehicular lane, and to a record with an unrebutted expert opinion that the road surface was unsafe for both motorcycles and bicycles. The court concludes a public entity that is palpably unreasonable in failing to correct such a known dangerous road condition may be liable to a bicyclist who is injured because of that danger. In doing so, the court recognizes that a plaintiff operating a two-wheeled vehicle must use due care when confronting a visibly hazardous potholed surface. These principles are consistent with New Jersey Department of Transportation regulations concerning the safety of roadway surfaces.
Viewing this record in a light most favorable to plaintiff, the court vacates summary judgment in favor of the two municipal defendants that maintained and patched the road. In the unpublished portion of this opinion, the court addresses other discrete matters.