Required to prove negligence arising out of a condition (e.g. icy sidewalk) of public property.
- That a dangerous condition existed, it was the proximate cause of the accident and the accident was foreseeable.
- A public employee either created the dangerous condition or the municipality had actual or constructive notice of it before the accident occurred.
- However, the town must have had sufficient time to protect against it -- and any action or inaction on their part had to be "palpably unreasonable conduct."
Nonetheless, over one-half of all of the bodily injury claims on the loss runs of these New Jersey municipalities were claims arising out of conditions of public property. Almost one-half of these claims had incurred values in excess of $5,000 per claim and three of these were valued in excess of $100,000!
Despite Title 59 immunities and defenses, the majority of the claim files we reviewed remained open after one year. Despite Title 59, litigation expenses were a significant cost-driver. These last two points lead us to offer the following advice:
Advice to New Jersey Municipalities
- Do not assume you are off the hook after the claim denial is sent out by your TPA.
- Conduct a thorough investigation of every accident. Did it occur on your property? Was the condition foreseeable?
- Encourage your TPA to establish expense reserves until the amount of damges claimed are known.
- Assign cases with attorney representation to law firms experienced in defending Title 59 claims against public entites.
- Review your loss runs each month -- look out for re-opened claims and claims with paid expenses but no reserves for indemnity.
We offer these pro-active supervisory insights to municipal risk managers to alert them to the importance of good claim management practices despite the apparent immunities and defenses of Title 59. Click here to learn about our Claim Audit Services.
