Dangerous roads and intersections are a menace to cyclists in New Jersey.  Think about it; have you ever encountered streets which intersect at odd angles creating poor sightlines?  Cars parked on the sides of narrow streets, leaving you nowhere to go but into the travel lane?  Narrow or absent shoulders?  What about overgrown trees and shrubs which obscure traffic signals or sightlines at an intersection?  Sound familiar?  These conditions are a common source of complaint by my fellow riders; however I have found that people who do not ride bicycles on our streets are frequently unsympathetic to our plight.  And, as a lawyer and cyclists’ advocate, I find these same people are too quick to blame the cyclist when conditions such as these give rise to accidents and injury.  In actuality however, collisions between cars and cyclists at intersections with impaired sightlines are usually caused by motorists who are speeding or otherwise inattentive, or the adjacent property owners’ failure to maintain the foliage bordering the roadway –  but what about the Township?  To what extent can they be liable for accidents at dangerous intersections?  That issue was addressed by the New Jersey Appellate Division in Lessa v. Township of Pemberton, a recent unpublished decision issued on June 19, 2013, and unfortunately the decision serves to confirm that the government is generally not a viable defendant in claims arising from intersection accidents.


Lessa v. Township of Pemberton arose from a collision between a car and an 11 year old cyclist at an uncontrolled residential intersection in Pemberton Twp.  A property located on the corner had allowed its bushes to grow to a height which blocked sightlines at the intersection; a dangerous condition which contributed to the ultimate crash.  The collision caused the child to suffer very severe injuries, including multiple fractures and a degloving injury.  Claims for the child’s injuries were brought against the driver of the car, the owners of the property upon which the bushes were situated, and the Township of Pemberton.  All claims were ultimately settled except for those against the Township.


Governmental entities in New Jersey, such as the Township of Pemberton, are given broad immunity from suit by a statute known as the Tort Claims Act (“TCA”).  In order to sue the government for negligence, the facts of the case must fit within a specific exception to immunity provided by the statute.   The plaintiff in the Lessa case argued that the Pemberton Township should be liable under the terms of N.J.S.A. 59:4-2, which provides liability for dangerous conditions of property owned or controlled by the government.  The bushes involved were not on government land, but rather were located on private property.  However, the plaintiff argued that the Township had exerted sufficient “control” over the property in question through a municipal ordinance which required homeowners to keep their hedges trimmed and free of overgrowth; an ordinance it had apparently failed to enforce before the collision.  The plaintiff further argued that the Township had also exerted “control” over the property by actually trimming the hedges in question, as evidenced by the fact that employees of its Public Works Dept. trimmed them after the crash.   The Appellate Division disagreed, and ruled that the government must have “possessory control” over the property in question in order for liability to extend to non-owned property.  As such, neither the fact that the government may have exercised regulatory control by passing an ordinance, nor the fact that its employees had entered the property at some point to trim the bushes, were enough to support liability.


The plaintiff also presented an alternative argument, based on a provision in the TCA set forth at N.J.S.A. 59:4-4, which makes government entities liable for failing to provide “emergency signals, signs, markings or other devices if . . . necessary to warn or a dangerous condition which endangered the safe movement of traffic and which would not be reasonable apparent to . . . [or] anticipated by a person exercising due care.”  The plaintiff contended that the impaired sightlines caused by the hedges and the absence of traffic controls combined to produced an “emergent condition” which required governmental action, and that the Township was negligent in failing to take timely action to install proper traffic controls.  The Appellate Court again disagreed and found the facts of the case insufficient to support this claim.


Quoting from an earlier decision in Robinson v. City of Jersey City, 284 N.J. Super. 596, 600 (App. Div. 1995), the court stated that a plaintiff must show that the “dangerous condition ‘was so extraordinary that it would not be reasonably apparent or anticipated by a careful motorist’” in order to prevail on this theory.  The Justices felt that the overgrown shrubs which founded the alleged dangerous condition were “not extraordinary condition, but rather [are] a commonplace [condition] in driving experience . . . [which] would be readily apparent to a motorist exercising a reasonable degree of care”, and thus there was no basis to hold the Township of Pemberton accountable in this case.