SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3603-22 

HELEN CIGARROA, 

 Plaintiff-Appellant, 

v.

TOWN OF HARRISON, 

COUNTY OF HUDSON, 

20 GREEN STREET ASSOCIATES, 

LLC, SHAFTO HOLDING, LLC, 

and GARCES, GRABLER, & 

LEBROCQ, PC, 

 Defendants-Respondents. 

_______________________________

Argued April 9, 2024 – Decided April 18, 2024 

Before Judges Enright and Augostini. 

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-0905-19. 

Daniel Robert Druckman argued the cause for appellant 

(Druckman and Hernandez P.C., attorneys; Jonathan S. 

Druckman, of counsel and on the briefs; Randi Susan

Greenberg, on the briefs).

NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Christopher Kennedy Harriott argued the cause for 

respondent Town of Harrison (Florio Kenny Raval, 

LLP, attorneys; Edward Joseph Florio, of counsel; 

Christopher Kennedy Harriott, on the brief). 

PER CURIAM 

Plaintiff Helen Cigarroa appeals from an August 27, 2021 order granting 

summary judgment in favor of defendant Town of Harrison (Harrison), and 

dismissing her complaint with prejudice. We affirm, substantially for the 

reasons set forth in Judge Christine M. Vanek's thoughtful and comprehensive 

oral opinion. 

 We summarize the facts from the motion record. On April 1, 2017, 

plaintiff fell in a municipal parking lot located across the street from her home 

in Harrison. The fall occurred after plaintiff returned from a drive with her 

daughter in her daughter's car. Plaintiff's daughter parked the car in the 

municipal parking lot. As plaintiff exited the car and walked towards the rear 

of the vehicle, she stepped into a pothole and fell. The right side of her body 

struck the ground, causing her to sustain a fractured right foot.1 

1

 Plaintiff's injuries were exacerbated by a subsequent fall at a different location 

in July 2017. 
3 A-3603-22

The municipal lot where plaintiff fell is cleaned on Tuesdays and Fridays 

by street sweepers employed by Harrison's Department of Public Works (DPW). 

Harrison relies on reports from citizens and its DPW employees to alert the town 

to any location needing a pothole repair. Although Harrison does not have 

employees specifically dedicated to locating potholes, the town documents any 

reports of potholes it receives and the pothole repairs it makes. Prior to 

plaintiff's April 2017 fall, Harrison had no record the pothole that caused 

plaintiff's fall existed or needed repair. 

In March 2019, plaintiff filed a complaint against Harrison and the County 

of Hudson, seeking damages for the injuries she sustained during the April 2017 

fall.2 Her claims against Hudson County were dismissed without prejudice in

October 2019. 

In July 2021, Harrison filed a motion for summary judgment. On August 

30, 2021, Judge Vanek heard argument on the motion and granted it the same 

day. In her cogent oral opinion, the judge noted plaintiff retained an 

"engineering expert, Charles J. Witczak[,] . . . [who] visited and inspected the 

2

 In her complaint, plaintiff also identified defendants 20 Green Street 

Associates, LLC, Shafto Holding LLC, and Garces, Grabler, & LeBrocq PC as 

liable for injuries she sustained in her July 2017 fall. These defendants are not 

involved in this appeal. 
4 A-3603-22

site where [p]laintiff fell," and that Witczak opined "defendant failed to protect 

the safety of pedestrians utilizing the [lot] in question by not correcting the 

hazardous condition created by the uneven and excessively sloped surface 

present at the site." 

Judge Vanek also found the lot where plaintiff fell was maintained by 

Harrison. The judge observed that "[t]he Superintendent of Public Works for 

Harrison testified that the parking lot where . . . plaintiff fell [wa]s swept every 

Tuesday and Friday by a street sweeper vehicle." Further, the judge found "[t]he 

existence of a pothole in the . . . lot was not reported prior to April 1[], 2017" 

and that Witczak "d[id] not set forth any opinion as to how long [ago] the alleged 

condition that [he] discovered at the time of [his] site inspection on June 17, 

2017[] was created[,] [n]or [opine it] would be readily observable on 

inspection." 

Next, Judge Vanek explained: 

to impose liability on a public entity, [a] plaintiff must 

establish the existence of a dangerous condition on the 

public entity's property, pursuant to N.J.S.A. 59:4-2, 

that the condition proximately caused the injury and 

created a reasonably foreseeable risk of the kind of 

injury which was incurred[, a]nd that the dangerous

condition was caused by a negligent employee[,] or the 

entity knew about the condition and . . . the entity's 

conduct was palpably unreasonable. 
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 The judge found plaintiff's "expert report[] detail[ed] . . . the size of the 

alleged pothole in the parking lot," which was "sufficient to establish a genuine 

issue of material fact as to whether the pothole created a dangerous condition." 

But she also stated, "that d[id not] end the [court's] inquiry" because plaintiff 

still had to "establish . . . a genuine issue of material fact with regard to actual 

or constructive notice" to prevail on her claim against Harrison under the Tort 

Claims Act (TCA or Act), N.J.S.A. 59:1-1 to 12-3. 

Next, the judge found it was "undisputed . . . Harrison had no actual notice 

of the pothole in question prior to . . . plaintiff's accident." Regarding whether 

Harrison had constructive notice of the pothole at issue, the judge found 

"[p]laintiff . . . failed to establish a genuine issue of material fact as to whether 

the alleged pothole existed for such a length of time that it should have been 

discovered as a dangerous condition through the exercise of reasonable 

diligen[ce] on the part of [d]efendants." Further, the judge concluded plaintiff 

failed to "ma[ke] any observations about the [pothole] condition prior to April 

1[], 2017," despite living across the street from the lot where she fell, "nor d[id 

p]laintiff know what caused the pothole, how long it existed prior to April 1[], 

2017, or whether anyone else had ever fallen in the pothole." After finding 

plaintiff's expert also failed to "provide[] any evidence as to the length of time 
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that the subject pothole existed," the judge stated, "the court cannot find . . . 

there is a factual issue as to whether . . . plaintiff established that the condition 

existed for such a time that the public entity[,] in d[ue] care[,] should have 

discovered the condition and its dangerous character." 

Finally, the judge found "the record d[id] not contain evidence to permit 

a rational factfinder to conclude that . . . [Harrison]'s conduct was palpably 

unreasonable." She reasoned that "the existence of the pothole was not reported 

prior to April 1[], 2017," and there was no "evidence that the pothole existed for 

such a length of time unreported that it created a dangerous condition." 

Accordingly, she granted Harrison's motion for summary judgment and entered 

a conforming order that day.3 

On appeal, plaintiff contends Judge Vanek mistakenly "drew all 

inferences against . . . plaintiff rather than the reverse." Plaintiff also argues 

that because she "presented sufficient evidence to create a jury question as to 

defendant's constructive notice of the condition that caused her to fall," 

"summary judgment in favor of defendant should be reversed." These 

arguments fail. 

3

 Although the summary judgment order states it was entered "for the reasons 

set forth on the record on August 30, 2021," the order was inadvertently dated 

August 27, 2021. 
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"We review a grant of summary judgment de novo, applying the same 

standard as the trial court." Norman Int'l, Inc. v. Admiral Ins. Co., 251 N.J. 538, 

549 (2022) (quoting Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 511 

(2019)). Thus, we consider "whether the competent evidential materials 

presented, when viewed in the light most favorable to the non-moving party in 

consideration of the applicable evidentiary standard, are sufficient to permit a 

rational factfinder to resolve the alleged disputed issue in favor of the nonmoving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). 

Summary judgment must be granted "if the pleadings, depositions, 

answers to interrogatories and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any material fact challenged and 

that the moving party is entitled to a judgment or order as a matter of law." R.

4:46-2(c). "If there is no genuine issue of material fact, we must then 'decide 

whether the trial court correctly interpreted the law.'" DepoLink Ct. Reporting 

& Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) 

(quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 

2007)). We accord no special deference to the trial court's conclusions on issues 

of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citing Zabilowicz v. 

Kelsey, 200 N.J. 507, 512-13 (2009)). 
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The TCA limits the liability of public entities in New Jersey, permitting 

aggrieved parties to bring tort actions against such entities only within strictly 

defined parameters. O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 344-45 (2019). 

"The Act's 'guiding principle' is 'that immunity from tort liability is the general 

rule and liability is the exception.'" Id. at 345 (quoting D.D. v. Univ. of Med. 

and Dentistry of N.J., 213 N.J. 130, 134 (2013)). 

A public entity's liability for an injury occurring on its property is 

circumscribed by N.J.S.A. 59:4-2, which provides: 

A public entity is liable for injury caused by a condition 

of its property if the plaintiff establishes that the 

property was in dangerous condition at the time of the 

injury, that the injury was proximately caused by the 

dangerous condition, that the dangerous condition 

created a reasonably foreseeable risk of the kind of 

injury which was incurred, and that either: 

a. a negligent or wrongful act or omission of an 

employee of the public entity within the scope of 

[their] employment created the dangerous 

condition; or 

b. a public entity had actual or constructive 

notice of the dangerous condition under section 

59:4-3 a sufficient time prior to the injury to have 

taken measures to protect against the dangerous 

condition. 

Nothing in this section shall be construed to impose 

liability upon a public entity for a dangerous condition 

of its public property if the action the entity took to 
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protect against the condition or the failure to take such 

action was not palpably unreasonable. 

Stated more plainly, a plaintiff bringing an action under the TCA must 

prove: (1) "the [public] property was in a dangerous condition"; (2) "the 

dangerous condition created a foreseeable risk of, and actually caused, injury to 

plaintiff"; (3) the public entity "knew of the dangerous condition"; and (4) the 

public entity's action "to protect against the dangerous condition was palpably 

unreasonable." Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003). Palpably 

unreasonable behavior is behavior "patently unacceptable under any given 

circumstance." Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) 

(quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)). For behavior to be 

"palpably unreasonable," "it must be manifest and obvious that no prudent 

person would approve of [the] course of action or inaction." Ibid. (quoting 

Kolitch, 100 N.J. at 493). 

Pursuant to N.J.S.A. 59:4-3: 

a. A public entity shall be deemed to have actual notice 

of a dangerous condition . . . if it had actual knowledge 

of the existence of the condition and knew[,] or should 

have known[,] of its dangerous character. 

b. A public entity shall be deemed to have 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 
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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(a) and (b).] 

"The mere '[e]xistence of an alleged dangerous condition is not 

constructive notice of it.'" Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 

243 (App. Div. 2013) (alteration in original) (quoting Sims v. City of Newark, 

244 N.J. Super. 32, 42 (Law Div. 1990)). "Whether a public entity is on actual 

or constructive notice of a dangerous condition is measured by the standards set 

forth in N.J.S.A. 59:4-3(a) and (b), not by whether 'a routine inspection program' 

by the [public entity] . . . would have discovered the condition." Polzo v. Cnty. 

of Essex (Polzo II), 209 N.J. 51, 68 (2012). 

Here, plaintiff provided no proof Harrison had actual notice of the pothole 

condition where she fell. Therefore, the issue before us—as it was before the 

trial court—is whether Harrison had constructive notice of the pothole prior to 

plaintiff's April 2017 fall. Consistent with the standards we have enunciated, 

absent proof Harrison had constructive notice of the pothole that allegedly 

caused plaintiff's fall, she cannot prevail on her TCA claim. 

Plaintiff argues she presented sufficient evidence to show "an issue of 

material fact as to constructive notice . . . of the condition that caused [her] fall," 
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because "[t]he sheer size of th[e] pothole, together with the condition of the 

striping and the surrounding area, [wa]s sufficient to justify an inference of 

constructive notice" to defendant. Additionally, she contends her expert did not 

need to opine on how long the pothole existed before her fall because "[o]ne 

need only look at any of the photographs [of the pothole] to realize that a 

condition of this magnitude took time to form." We are not persuaded. 

As Judge Vanek correctly noted, without proof Harrison had actual notice 

of the pothole condition, it was incumbent upon plaintiff to show Harrison had 

constructive notice of this "dangerous condition" by demonstrating "the 

condition . . . 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). We agree with the 

judge that plaintiff's proofs were lacking as to the length of time the pothole 

existed. Therefore, we have no reason to disturb the judge's finding that there 

were no genuine issues of material fact precluding her from concluding, as a 

matter of law, Harrison lacked constructive notice of the pothole prior to 

plaintiff's accident. Accordingly, Harrison was entitled to summary judgment 

and dismissal of plaintiff's complaint with prejudice. 

Affirmed.