The New Jersey Supreme Court will soon decide whether a county or municipality can be held liable for not fixing potholes – even if the county and/or municipality were unaware of the existence of the pothole.   In a case argued on September 26, 2011, the Supreme Court was called upon to decide whether the County of Essex should be held liable for the death of a bicyclist who died of head injuries suffered on an Essex County road.

 Liability for injury or death due to a hazardous road condition has to date been conditioned on the county or municipality having constructive notice of the potential hazard – a requirement for meeting the Tort Claims Act threshold. Yet, the Appellate Division in Polzo v. County of Essex reversed the Trial Court’s finding of no liability upon a new and potentially viable alternative theory of liability: that the county had no road hazard inspection program in place.

If the Supreme Court sides with the Appellate Division in Palzo, municipalities will have to consider implementing detection systems to spot potential road hazards before an individual is injured in order to escape potential liability.