SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2064-18T3

MARIE N. JEAN LOUIS 

DERAVIL, Individually, 

and as Administratrix of the 

ESTATE OF AMELIA CIUS,

Plaintiff-Appellant,

v.

RAPHAEL J. PANTALEONE, 

JENNIFER E. BLANDA,

TOWNSHIP OF HAMILTON,

COUNTY OF MERCER, STATE

OF NEW JERSEY, and PSE&G,

Defendants-Respondents.

______________________________

Argued October 17, 2019 – Decided November 1, 2019

Before Judges Mayer and Enright. 

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Docket No. L-0075-15.

Robin Kay Lord argued the cause for appellant (Robin 

Kay Lord, LLC, and Bidlingmaier & Bidlingmaier, PC

attorneys; Robin Kay Lord, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
2

A-2064-18T3

Alan Joseph Baratz argued the cause for respondent 

Township of Hamilton (Weiner Law Group LLP,

attorneys; Barry Avram Stieber, on the brief).

John K. Maloney, Assistant Mercer County Counsel, 

argued the cause for respondent County of Mercer (Paul 

R. Adezio, Mercer County Counsel, attorney; John K. 

Maloney, on the brief).

PER CURIAM

Plaintiff Marie Jean Louis Deravil, as administratrix of the Estate of 

Amelia Cius (decedent), appeals from April 27, 2018 orders granting summary 

judgment to defendants Township of Hamilton (Township) and County of 

Mercer (County) and a June 8, 2018 order denying her motion for 

reconsideration.1 We affirm. 

The facts are as follows. On January 29, 2013, at 9:30 p.m., decedent was 

struck by a car on Whitehorse-Mercerville Road. The driver of the car told the 

responding officer it was dark, but the conditions were clear that evening. The 

driver explained he did not see decedent attempting to cross the street because 

she was wearing dark clothing. According to the complaint, "decedent . . . 

attempted to cross Whitehorse-Mercerville Road, at or near its intersection with 

 

1 On appeal, plaintiff failed to brief denial of her motion for reconsideration. 

An issue not briefed on appeal is deemed waived. See Woodlands Cmty. Ass'n 

v. Mitchell, 450 N.J. Super. 310, 318-319 (App. Div. 2017).
3

A-2064-18T3

Justice Samuel A. Alito Jr. Way . . . ." Despite the existence of crosswalks at 

intersections located near where decedent was hit by an oncoming car, she 

elected to enter the roadway at a point not designated for crossing. 

The area where decedent was fatally struck lacked functioning street 

lights. According to plaintiff, trees and utility poles obstructed the view of the 

road for both pedestrians and drivers. 

 At the point of impact, the sidewalk on the eastern side of WhitehorseMercerville Road abruptly terminated. The terrain after the sidewalk ended was 

uneven and sloped. Plaintiff's counsel speculated that decedent entered the 

roadway because the sidewalk ended. However, plaintiff's complaint and 

counterstatement of undisputed facts in opposition to defendants' motions for 

summary judgment allege decedent was attempting to cross WhitehorseMercerville Road when she was stuck by an oncoming car and the road presented

a dangerous condition. Because plaintiff alleged the road was a dangerous 

condition, she argued the Township and County were liable for decedent's death

under the Tort Claims Act (TCA or Act), N.J.S.A. 59:1-1 to 12.3.

After discovery, the Township and the County moved for summary 

judgment, arguing they were not liable for the death under the TCA. The 

Township argued it did not own or control the road to impose liability on it under 
4

A-2064-18T3

the TCA. The County argued the road was not a dangerous condition and 

therefore it was also not liable.2 Both argued decedent failed to exercise due 

care in crossing the road. 

In granting summary judgment to the Township and the County, the judge 

found the road was not a dangerous condition under the TCA. The judge also 

determined the Township did not own, control, or maintain the roadway or 

streetlights and therefore could not be liable for any dangerous condition of the 

road. The judge further concluded summary judgment was appropriate because 

decedent "chose to take this risk," "presumably could see cars coming," and thus

failed to exercise due care in crossing the road. 

The judge, relying on Vincitore ex rel. Vincitore v. N.J. Sports & 

Exposition Auth., 169 N.J. 119 (2001), determined the purpose of the road was 

to facilitate vehicular travel and plaintiff presented no evidence suggesting the 

road was unsafe for that purpose. In addition, the judge explained plaintiff 

provided no evidence the road was unsafe for pedestrians who used it in a normal 

and foreseeable manner by crossing at designated crosswalks. Further, the judge 

held decedent's "use of the road was so objectively unreasonable that the 

 

2

 The County admitted responsibility for the road in accordance with a 1979 

agreement with the Township. However, PSE&G was responsible for the street 

lighting and light poles.
5

A-2064-18T3

condition itself cannot be said to have caused the injury." The judge considered 

decedent's failure to use the designated crosswalks to conclude decedent's 

conduct was unreasonable. 

On appeal, plaintiff argues the judge erred in determining decedent's 

conduct was objectively unreasonable as a result of her failure to use due care 

by crossing the road at the designated crosswalks. Plaintiff contends the failure 

to cross in a crosswalk "does not eliminate liability of the public entity for 

creating a dangerous condition." 

Plaintiff further argues the abrupt termination of the sidewalk "could 

reasonably be interpreted as a signal to the pedestrian that it is unsafe to travel 

further and that she must cross the street to continue her path forward." Plaintiff 

claims a person crossing the street where the sidewalk ended should have been 

reasonably foreseeable to defendants. 

Prior to the judge granting summary judgment, plaintiff never claimed the 

dangerous condition was the termination of the sidewalk. Before the entry of 

summary judgment for defendants, plaintiff argued the road and the sight 

obstructions along the road, including lack of adequate street lighting, trees, and 

light poles, created a dangerous condition imposing liability on the public 

entities for decedent's death. Even plaintiff's expert reports focused on the road 
6

A-2064-18T3

and various sight obstructions along the roadway as the alleged dangerous 

condition. 

Our review of the grant of summary judgment is de novo, employing the 

same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017) 

(citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 

199 (2016)). Under that standard, summary judgment will be granted if, viewing 

the evidence in the light most favorable to the non-moving party, "there is no 

genuine issue of material fact and 'the moving party is entitled to a judgment or 

order as a matter of law.'" Ibid. (quoting Templo, 224 N.J. at 199); accord R.

4:46-2(c). We owe no deference to the motion judge's conclusions on issues of 

law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 

(1995). 

To hold a public entity liable for a dangerous condition of public property, 

a plaintiff must satisfy the requirements of N.J.S.A. 59:4-2. 

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 . . . .

[N.J.S.A. 59:4-2.]
7

A-2064-18T3

 Under the TCA, a "[d]angerous condition" "means 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." 

N.J.S.A. 59:4-1(a). Whether property is a "dangerous condition" is often, but 

not always, a determination to be made by a jury. Vincitore, 169 N.J. at 123-

24. "[L]ike any other fact question before a jury, [that determination] is subject 

to the court's assessment whether it can reasonably be made under the evidence 

presented." Id. at 124 (quoting Black v. Borough of Atl. Highlands, 263 N.J. 

Super. 445, 452 (App. Div. 1993)).

In Vincitore, the Supreme Court set forth the test under the TCA for 

determining if a property presents a "dangerous condition":

The first consideration is whether the property poses a 

danger to the general public when used in the normal, 

foreseeable manner. The second is whether the nature 

of the plaintiff's activity is "so objectively 

unreasonable" that the condition of the property cannot 

reasonably be said to have caused the injury. The 

answers to those two questions determine whether a 

plaintiff's claim satisfies the Act's "due care" 

requirement. The third involves review of the manner 

in which the specific plaintiff engaged in the specific 

activity. That conduct is relevant only to proximate 

causation, N.J.S.A. 59:4-2, and comparative fault, 

N.J.S.A. 59:9-4.

[Vincitore, 169 N.J. at 126 (quoting Garrison v. Twp. 

of Middletown, 154 N.J. 282, 292 (1998)).]
8

A-2064-18T3

Plaintiff claimed the road was a dangerous condition in accordance with 

the TCA. However, plaintiff presented no evidence that the road itself was 

dangerous. The termination of the sidewalk, inadequate street lighting, or the 

location of trees and utility poles were not physical characteristics attendant to 

the road. In determining whether a dangerous condition of public property exists 

under the TCA, the court examines the "physical condition of the property itself 

and not to the activities on the property." Wymbs v. Twp. of Wayne, 163 N.J. 

523, 532 (2000) (quoting Levin v. Cty. of Salem, 133 N.J. 35, 44 (1993)). Thus, 

absent a defect to the road, no liability under the TCA attaches to the Township 

or the County. 

In reviewing the evidence, no jury could conclude that the road was a 

dangerous condition in accordance with the TCA. The driver was using the road 

as intended at the time of the accident. Further, decedent's use of the road 

was so objectively unreasonable that the condition itself could not have caused 

the injury. Decedent was walking across a four lane roadway, at night, while 

wearing dark clothing. Decedent's conduct was indicative of a lack of due care, 

precluding a finding of any actionable dangerous condition to impose liability 

on the Township or the County. 
9

A-2064-18T3

Having reviewed the record, the judge correctly concluded that plaintiff 

failed to satisfy the first two prongs of Vincitore, warranting summary judgment 

in favor of the public entities. 

Affirmed.