Essex County Not Liable in Cyclist Death

NJ State Supreme Court Hughes Complex (Wikipedia)

Update 3:15 p.m.: The following is an email from Laura Torchio, president of Bike&Walk Montclair: We mourn the tragic death of this bicyclist and all the cyclists, pedestrians, drivers, and passengers killed on our roads and highways.  This is why we support funding for street design that is complete and safe for all users.  We understand that in addition to infrastructure, education and enforcement are key elements in safe and courteous roadways. Complete Streets policies, like the one Montclair has adopted, can help guide decisions related to design, operation and maintenance of public roadways so that all users, regardless of age, ability or destination, are accommodated safely in any context.

Essex County is not liable for the death of a bicyclist who died of head injuries suffered on Parsonage Hill Road in Millburn in 2001, the New Jersey Supreme Court ruled last week.

Mathi Kahn-Polzo, a 45-year-old West Orange resident, was riding on the county-owned road with four friends when she rode into a pothole and fell off her bike.  Kahn-Polzo, who was wearing a helmet at the time of the accident, died 26 days later without regaining consciousness.  

According to a story in NJ.com, the court dismissed a complaint by Kahn-Polzo’s husband, Donald Polzo, who filed suit against the county in 2002.  In their unanimous decision, issued Wednesday, the justices concurred with the original trial court’s ruling that Polzo’s attorneys and experts failed to conclusively demonstrate the county knew about the 1 1/2-inch-deep, 2-foot-wide depression or that the county’s failure to repair it amounted to liability.

The New Jersey State League of Municipalities, which had filed an amicus brief in the case, praised the court’s ruling in a letter posted on its website: “it cannot be concluded that the County was on constructive notice of a ‘dangerous condition’ on the shoulder of its roadway that ‘created a reasonably foreseeable risk’ of death, or that the failure to correct the depression before the accident was ‘palpably unreasonable’.”

The letter continued: “In the past several years, we have seen legislation and court decisions that attempt to wear away the protections provided by the Tort Claims Act.  We are pleased that the Supreme Court bucked this trend.”

Local competitive cyclist Herb Jimenez commented on the ruling in a letter to Baristanet:

What a sad and terrible situation. Our team knows Parsonage Hill Road very well. PHR is no more than two mile long starting at the top of Old Short Hills Road, stretching all the way down to Passaic Ave heading towards Chatham. PHR can definitely be sketchy where we often have to bunny hop pot holes.
Here’s the grim reality of a road cyclist, most bike wrecks do not involve cars – most are solo wipeouts from bad road conditions. Yes, pavement defects and other road-surface hazards are often the culprits. For example, potholes or cracks that would not endanger a motor vehicle could definitely catch a cyclist’s thin tires. Expansion cracks in the road present the same hazard. I personally saw a rider hurt himself when he crashed after his wheel snagged under a crack on the pavement. Cyclists can also fall on raised stormsewer gratings with openings that run parallel to a cyclist’s path – those are especially notorious for grabbing riders’ wheels.
When these types of solo crashes take place, it may appear to the average person that the crash was nobody’s fault or perhaps the cyclist’s, and so the injured rider might be blamed for poor bike handling skills and simply told to “suck it up.” But in some situations where the road has been neglected by the town or county I believe it is not the rider’s fault – and someone else may be held responsible. The question becomes… Is a road hazard the result of negligence? I can honestly tell you, the answer (is)yes more often than not. Especially when we ride the same roads year after year and continue to see the same potholes and cracks. If the government agency charged with maintaining a road neglects that responsibility and a crash results, the agency SHOULD be held liable for the cyclist’s injuries, that’s my opinion, and I’m sure the opinion of many other avid and competitive cyclists. Of course, as with any crash, negligence must be proved, and in a case involving a governmental entity, certain conditions must exist. One condition is that the agency must have had notice of a problem. But like I said, we’ve been riding the same roads and seeing the same cracks and potholes for years. This poor woman’s family should get some sort of recompense from the town or county.
Do you think the Supreme Court made the right decision, or should Essex County have been deemed responsible for the circumstances that led to Kahn-Polzo’s death?  Should municipalities be held accountable for keeping county-owned roads safe for cyclists?

 

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11 COMMENTS

  1. Report all potholes early and often–give the authorities “constructive notice” of “dangerous conditions” that create “reasonably foreseeable risks” so that any failure to correct them before an accident is “palpably [sic] unreasonable.”

  2. As a cyclist that logs hundreds of miles per year both on and off road, I agree with the decision in this case. While Ms. Kahn-Polzo’s accident and subsequent death are tragic, riding a bicycle is not without it’s inherent dangers from both vehicular traffic and road hazards. Unfortunately cracked pavement and potholes come with the territory. The bottom line is, as a cyclist you’ve got to maintain a reasonable speed for the given conditions, and most importantly, look where you’re going. A two foot wide 1.5 inch deep “pothole” is only going to cause you to crash if you didn’t see it coming.

  3. I understand deadeye’s argument.
    But where does the tax money go in Millburn?

    Millburn Township (Essex)
    Total Levy = $151,427,061.20
    County Taxes = 25%
    School Taxes = 50%
    Municipal Taxes = 25%
    Average Tax Bill = $19,988.60

    I think they can find a few dollars to keep the roads in better condition. And what if it was a child who tragically died in the same situation? Would we look at it a bit different? Just a question.

  4. If this occurred on private property, ignorance could not be an excuse. I think we pay enough in road maintenance to remove the mantle of responsibility from the taxpayer to inform the roads dept. that roads do indeed require regular inspection and maintenance.

  5. FOR THE RECORD:
    I was asked what was my opinion on this matter, and I gave it. I do not go out of my way to submit letters of any sort to websites, blogs, newspapers, or magazines.

    Herb Jimenez

  6. Modern road bikes are far different than the old Schwinns that many people grew up riding. They are typically feather light, made from exotic materials such as carbon fiber, and have very aggressive frame geometry that makes them very “twitchy” and demanding of a higher level of skill on the part of a rider. Most riders wear shoes that clip their feet securely onto the pedals. Think about that for a minute. They can also go very very fast. When a group of cyclists is riding single file, they use hand signals to alert those following, often hard on their rear wheel, of upcoming hazards. Often there is little time to react. Basically, in modern fitness cycling relatively minor hazards can cause big problems. If you fall, chances are you are going to fall hard. It is incumbent on the rider to stay within their comfort zone, and be constantly vigilant for hazards.

  7. Editor’s note: The statements quoted in the article from Laura Torchio and Herb Jimenez were both in response to Baristanet’s emailed requests for their comments on the ruling.

    Carolyn Maynard-Parisi

  8. “If this occurred on private property, ignorance could not be an excuse. ”

    that’s not a good parallel. You would also need permission to ride on a private road from the owner. The owner could assess the risk, and their exposure.

  9. Hopefully this ruling will make the county less wary about green lighting bike lanes and other bike and pedestrian -friendly endeavors on our streets.

  10. I think the more germane question is why are they considering “bike lanes and other bike and pedestrian -friendly endeavors on our streets” at all when they can’t even manage basic maintenance?

Comments are closed.