ALEX PLUCHINO v. BOROUGH OF RUTHERFORD and STATE OF NEW JERSEY and RUTHERFORD BOARD OF EDUCATION and COUNTY OF BERGEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1481-07T31481-07T3

ALEX PLUCHINO,

Plaintiff-Appellant,

v.

BOROUGH OF RUTHERFORD and

STATE OF NEW JERSEY,

Defendants,

and

RUTHERFORD BOARD OF EDUCATION,

and COUNTY OF BERGEN,

Defendants-Respondents.

_________________________________

RUTHERFORD BOARD OF EDUCATION,

Defendant/Third-Party

Plaintiff-Respondent,

v.

JASON BILLE and JENNIFER BILLE,

Third-Party Defendants.

___________________________________

 
Telephonically Argued October 5, 2009 - Decided

Before Judges Payne, Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-354-05.

Michael S. Kimm argued the cause for appellant (Kimm Law Firm, attorneys; Mr. Kimm and Kim E. Sparano, of counsel and on the brief).

Kenneth P. Skibinski argued the cause for respondent Rutherford Board of Education (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Skibinski, of counsel and on the brief).

John J. Robertelli argued the cause for respondent County of Bergen (Rivkin Radler, LLP, attorneys; Mr. Robertelli, of counsel and on the brief).

PER CURIAM

Plaintiff Alex Pluchino appeals the dismissal on summary judgment of his complaint against defendants Rutherford Board of Education (Board) and County of Bergen (County). We affirm.

I.

Pluchino, who was then sixteen years old, was severely injured in an automobile accident on September 15, 1999. At the time, Pluchino was a student at Rutherford High School (RHS), which is operated by the Board. He was also a member of the RHS football team, which routinely holds practices on school property following the normal academic day. As a member of the team, Pluchino was generally required to attend practices.

Following practice on September 15, Pluchino left the football field in a car driven by third-party defendant Jason Bille, a fellow student and team member. The car belonged to Bille's sister, third-party defendant Jennifer Bille, who did not have automobile liability insurance as required by N.J.S.A. 39:6B-1. Ray Perez, another fellow student and team member, accompanied them.

Approximately one-half mile from the football field, while going around a curve, Bille lost control of the car, which spun around and then struck a tree. Pluchino, who was sitting, unrestrained, in the rear passenger seat, was taken to the hospital following the accident with very severe head injuries, which continue to be debilitating.

Pluchino sued Bille and his sister, but withdrew that action after discovering that they were uninsured. He subsequently settled an uninsured motorist claim against his carrier. Pluchino then sued the Board and the County, both of which successfully moved for dismissal under the single controversy rule. We reversed, Pluchino v. Rutherford Board of Education, No. A-5645-02T5 (App. Div. Nov. 18, 2004), but on remand the parties agreed to a voluntary dismissal of that action without prejudice.

Pluchino subsequently filed a second suit against the Board and the County. He alleged that the Board was negligent because school officials (1) failed to cancel the football practice on September 15 despite predictions that a hurricane was approaching New Jersey and (2) permitted him to ride home with an uninsured fellow student under the then current weather conditions. Pluchino alleged that the County, which owned the road on which the accident took place, was negligent because of the inherently dangerous condition of the curve at the accident site.

Following the completion of discovery, the Board and the County moved for summary judgment. Pluchino filed a cross-motion to strike their expert reports. Following oral argument in October 2007, the Law Division granted summary judgment to both defendants, finding that the Board and its employees were not negligent given the actual weather conditions on September 15 and that the County was immune under provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Her ruling rendered Pluchino's cross-motion moot.

The following additional facts inform our decision.

A. Weather Conditions and Actions by the RHS Officials

On September 15, Governor Christine Todd Whitman issued Executive Order No. 101 (E.O. 101) with respect to the approach of Hurricane Floyd. She set forth the following reasons for declaring "that a State of Emergency exist[ed] in the State of New Jersey":

WHEREAS, the most recent weather reports as of Wednesday September 15, 1999, indicate that severe weather conditions are imminent due to the approach of Hurricane Floyd; and

WHEREAS, the storm poses a serious danger and constitutes a disaster from a natural cause which threatens and presently does endanger the health, safety or resources of the residents of one or more municipalities or counties of this State; and which may become in parts of the State, too large in scope to be handled in its entirety by normal municipal operating services; . . .

In the body of E.O. 101, Governor Whitman authorized the Superintendent of the State Police (Superintendent)

to determine the control and direction of the flow of such vehicular traffic on any State highway, municipal or county road, including the right to detour, reroute or divert any or all traffic, to prevent ingress or egress from any area and to remove parked abandoned vehicles from State highways that he, in his discretion, deems necessary for the protection of the health, safety and welfare of the public.

The Superintendent was also authorized to

order the evacuation of all persons, except for those emergency and governmental personnel whose presence he deems necessary, from any area where their continued presence would present a danger to their health, safety or welfare because of the conditions created by this emergency.

There is, however, nothing in the record to indicate that the Superintendent ever exercised those powers in Rutherford, Bergen County, or anywhere else in the State on September 15. Despite the weather predictions referenced in E.O. 101, none of which are contained in the record, there is no evidence in the record that Hurricane Floyd actually caused "severe weather conditions" in New Jersey on September 15, particularly in the northern part of the State in which Bergen County is located.

Neither Pluchino nor Bille had any recollection of the facts surrounding the accident or the events of the day, including the weather conditions. There was evidence that it did rain that day, but no evidence of hurricane-type conditions, such as very heavy winds and rain. According to Perez, it rained all day and "got heavier as the day went on." Gary Andolena, the head football coach, recalled September 15 as "a rainy day, but nothing out of the ordinary." According to precipitation reports contained in the record, the total rainfall for September 15 was 0.67 inches, approximately 0.39 inches of which had fallen by the time of the accident, shortly after 6:00 p.m.

Pluchino's own liability expert, Edward F. Dragan, Ed.D., did not "have specific information" about the actual weather conditions on September 15, but it was his "understanding" that it was "at least raining, and may have been raining very severely." (Emphasis added.) He also conceded that Hurricane Floyd did not make landfall in New Jersey on September 15. Dragan's opinion that football practice should have been cancelled was based solely on the weather predictions, the issuance of E.O. 101, and the assertion by Perez that there was an announcement over the RHS public address system that after school activities for "pretty much every other sport" except football were cancelled. Dragan conceded that football is a sport that is played in the rain.

According to Leonard Goldblatt, Pluchino's engineering expert: "At the time of the accident there was rainfall that preceded by one day the major rainfall brought by Hurricane Floyd[,] which began on the morning of September 16, 1999. All indications are that the road at the time of the accident did not puddle." In contrast to the 0.67 inches of rainfall on September 15, the precipitation records reflect that the total rainfall for the following day, September 16, was 6.72 inches.

Rutherford's Superintendent of Schools did not close school on September 15, and did not advise the high school to cancel any athletic activities. William D. Bauman, the principal of RHS, did not recall any safety measures taken on September 15 in connection with the approach of Hurricane Floyd, nor did he recall any announcements canceling athletic activities that day.

Andolena did not know that the Governor had "declared a statewide emergency because of a hurricane that morning" and had not heard, seen, or read anything about an impending hurricane prior to football practice and the accident. In contrast to Perez, Andolena did not remember an announcement canceling other athletic events or practices. At his deposition, he testified that the soccer team also held practice or had a game that day.

Football practice started at approximately 3:45 p.m., and lasted from two to three hours. Andolena described the rain during practice as "moderate." He did not recall "any puddles" on the football field. Perez, who had no memory of the practice, recalled that generally there were usually "a few puddles" on the "all dirt field" when it rained.

B. Student Transportation After School

Because the school district is small geographically, the Board was not required to provide transportation for students pursuant to N.J.S.A. 18A:39-1; and it did not do so. After the practice on September 15, Andolena did not inquire how the team members were getting home because "it was common knowledge that the students were either picked up by a parent, or if they were able to drive, they drove themselves home." He was not concerned about "student safety in getting transportation home" and felt no obligation to "inquire about the transportation need[s] of the students at the end of football practice that day."

C. The Accident and the Roadway

The accident took place on Jackson Avenue in Rutherford, which is a County roadway. Bille was driving south in a residential area with a posted speed limit of thirty-five miles per hour. The road curves to the left at approximately a fifty-degree angle at the accident location. Although there were differing theories as to why, including disputed assertions that Bille was speeding, there appears to be agreement that Bille lost control of the car, which then rotated and struck a tree on the right side of the road.

Just before the curve on southbound Jackson Avenue, there was a large yellow warning sign with a black arrow indicating a ninety-degree turn, below which there was a smaller yellow and black sign indicating an advisory speed of twenty miles per hour. There were also smaller white and black signs with chevrons, indicating a curve ahead.

It appears that Jackson Avenue was acquired by the County from the Borough of Rutherford at some point between 1910 and 1915. The County was responsible for resurfacing the road, painting the stripes, inventorying road signs, and maintaining the pavement. Salting the roads and plowing the snow was done through a cooperative agreement with the local municipalities. The County was also responsible for the installation of guide rails when requested by a town or a property owner along the roadway. The County engineer thought that a guide rail had been requested for Jackson Avenue at the area of the accident, but that a property owner had objected. However, he could not locate any documentation of that request or the objection.

II.

An appellate court reviews a grant of summary judgment using the same standard that governs the trial court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c). However, a "'genuine' issue of material fact" does not exist if there is only one "unavoidable resolution of the alleged disputed issue of fact." Ibid. (citation omitted).

A. The Board's Liability

We turn first to Pluchino's allegations against the Board. He contends that the Board was negligent (1) because its officials and employees failed to cancel football practice despite the approach of Hurricane Floyd and Governor Whitman's declaration of a state of emergency and (2) because those officials and employees allowed Pluchino to leave the school after practice with a youthful, uninsured driver during adverse weather conditions. The Board contends that it did not have a duty of care to Pluchino under those circumstances and that, even if it did, the duty was not breached.

In New Jersey, "the duty of school personnel to exercise reasonable supervisory care for the safety of students entrusted to them, and their accountability for injuries resulting from failure to discharge that duty, is firmly established." Caltavuturo v. Passaic, 124 N.J. Super. 361, 366 (App. Div.) (citing Jackson v. Hankinson, 51 N.J. 230, 235-236 (1968); Titus v. Lindberg, 49 N.J. 66, 73 (1967)), certif. denied, 63 N.J. 583 (1973). "This duty may be violated, not only in the commission of acts but also in a neglect or failure to act." Ibid. "The standard of care imposed upon school personnel in carrying out this duty to supervise is that degree of care which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances." Ibid.

The school's duty extends to the dismissal of students at the end of the school day. Jerkins v. Anderson, 191 N.J. 285, 294-300 (2007). The breadth of the duty can vary depending upon the age of the students involved. Id. at 296 ("Younger children, in particular, are unable to 'understand and appreciate the perils that may threaten [their] safe being.'" (quoting Bush v. N.J. & N.Y. Transit Co., 30 N.J. 345, 355 (1959))). However, "a duty to provide public transportation is not implicated in the dismissal responsibility of 'walking' districts and, under law, such districts can allow students to walk home from school." Id. at 304. In addition, the Supreme Court noted that:

Our holding should not be interpreted to suggest that schools are guarantors of students' safety with respect to all activities during or after dismissal. A school district's responsibility has temporal and physical limits, and its obligation to act reasonably does not diminish the responsibilities that parents or guardians have to their children.

[Id. at 306.]

Having determined that there was a duty, we turn to the issue of whether it was violated. The record before us supports the trial court's conclusion that the Board and its employees were not negligent in failing to cancel football practice on September 15. Although there apparently were concerns about the approach of Hurricane Floyd sufficient to warrant the Governor's determination to confer emergent powers on the Superintendent of State Police, those powers were not utilized that day. There is nothing in the record to suggest that either the Governor or the Superintendent ordered or even recommended the closure of schools or roadways, or that there was a directive or recommendation that unnecessary travel be curtailed.

The record clearly demonstrates that the actual weather conditions on September 15 consisted of not more than 0.67 inches of rain, as opposed to the type of severe hurricane-related weather conditions that would have warranted action by school officials. As Goldblatt, Pluchino's own expert, observed, "[a]t the time of the accident there was rainfall that preceded by one day the major rainfall brought by Hurricane Floyd[,] which began on the morning of September 16, 1999." In other words, other than some rain, the adverse effects of Hurricane Floyd arrived the following day, rather than on the day of the accident.

Dragan's opinion that the issuance of E.O. 101, the presence of some rain, and the apparent decision to cancel some athletic events required the cancellation of football practice amounted to nothing more than a net opinion. See State v. Townsend, 186 N.J. 473, 494 (2006) ("Simply put, the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion'." (citation omitted)).

Dragan conceded that he had no information about the actual weather conditions on September 15, that Hurricane Floyd did not make landfall in New Jersey on September 15, and that E.O. 101 did not require the closing of schools. That other athletic or extra-curricular events at RHS were canceled, if true, does not mean that the school had an obligation to cancel all of them. As Dragan conceded, football is played and practiced in the rain.

Dragan cited no authority, such as school-related guidelines or regulations, for his conclusion that the Board's employees were negligent in failing to cancel the football practice simply because of a weather prediction that had not been realized, as opposed to the actual weather conditions existing at the time. While the Board's expert, Neil Dougherty, conceded that it would be "unreasonable" to hold athletic practices if there were a hurricane, there can be no genuine issue of material fact that hurricane-type conditions did not exist in New Jersey on September 15.

We turn next to the issue of whether the Board was negligent in permitting Pluchino to leave the school in the rain with an uninsured, youthful driver. Pluchino correctly relies on Jerkins, supra, 191 N.J. at 294-300, for the proposition that a school has a duty of care with respect to the dismissal of students at the end of the day. As previously noted, that duty does not extend to providing transportation in a "walking" school district; and its parameters vary depending upon the age of the students involved. Id. at 296; 304.

In Jerkins, supra, 191 N.J. at 290, a third-grade student was dismissed from school on a scheduled early-dismissal day. He usually walked to and from school with a relative or a babysitter. Ibid. On the day in question, nobody appeared to bring him home at the early-dismissal time, so he left the school property on his own without inquiry or interference from supervising school employees. Ibid. He apparently played with friends and may have engaged in other activities. Ibid. He was subsequently hit by an automobile and severely injured. Ibid. The relative assigned to meet him at school asserted that he was not aware that it was an early-dismissal day. Ibid. The Supreme Court remanded the case for trial on the issue of whether the school's duty of care had been breached. Id. at 307.

The Supreme Court held that the duty at issue is "defined by a standard of reasonableness." Id. at 301 (citations omitted). The question in this case becomes whether there was a breach of the Board's duty to take reasonable precautions for the safety of students at the time of dismissal from school when, at the end of football practice, Pluchino, who was sixteen, was permitted to leave the school in a car driven by another student, who was seventeen, during rainy weather.

In a certification opposing summary judgment, Pluchino's father asserted that, given what he alleged was "the heightened risk of harm that was present" because of Hurricane Floyd, he would have expected that "a call would have been made to [him] to pick up [his] son when practice was over." It is apparent from that statement that, unlike the much younger child in Jerkins, Pluchino was not routinely taken to and from school by his parents or others chosen by them. Instead, the clear implication is that Pluchino made his own way home without parental involvement. There is no assertion in the record that Pluchino's parents prohibited him from driving with other students or that they had instructed anyone at RHS to that effect. In addition, Dragan, who had been a school principal and superintendent, did not opine to the contrary. His opinion was based solely on assumptions related to hurricane-type weather conditions.

We conclude that, in the case of a student of Pluchino's age and in the absence of extraordinary weather conditions, the Board and its employees did not breach their duty of care under the circumstances of this case. Consequently, we affirm the dismissal of all of Pluchino's claims against the Board.

B. The County's Liability

We now turn to Pluchino's claims against the County, which are premised on allegations that the road was unsafe at the site of the accident and that the County took inadequate protective measures with respect to that unsafe condition. The County relied on its Tort Claims Act (Act) immunities with respect to those issues, as did the motion judge in dismissing Pluchino's claims.

The Act provides several types of immunity to public entities, some specific and others more general. However, "the general rule [is] that public entities are immune from tort liability unless there is a specific statutory provision imposing liability." Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002).

Before turning to statutory provisions that might provide a specific immunity in this case, we must determine whether there is one that imposes liability, as required by Kahrar. N.J.S.A. 59:4-2 provides as follows:

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 his 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 protect against the condition or the failure to take such action was not palpably unreasonable.

[(Emphasis added).]

Pluchino premises the Board's liability on that statute.

A "dangerous condition" is "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). A "substantial risk" is "one that is not minor, trivial or insignificant." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985) (citation and internal quotation marks omitted).

For the purposes of our analysis, we must conclude that the roadway at the site of the accident was in a dangerous condition because Goldblatt's report creates an issue of material fact in that regard. Goldblatt summarized his findings and opinion as follows:

Wetness due to rainwater on the roadway pavement is a hazard to motorists because it reduces traction and can also cause cars to "hydroplane" and the drivers thereof to lose control of the vehicle as occurred at the time of this accident. At the time of the accident there was rainfall that preceded by one day the major rainfall brought by Hurricane Floyd which began on the morning of September 16, 1999. All indications are that the road at [the] time of the accident did not puddle. County Engineer testified at his deposition that there was no indication of ponding on Jackson Avenue that day. Nonetheless, even in dry weather, the curved portion of Jackson Avenue, where Francisco Road meets it, has a sharp curve which appears almost like an L-shape curve, rather than a circular curve. In addition, despite the fact that the southbound side of Jackson Avenue turns to the left but has almost no (or negative) super-elevation; i.e., it is lower on the right (westerly) side of the road. These conditions render the road inherently dangerous to drive on any day, even dry day[s]. When it was raining, the dangerousness was sharply increased because the rain water, even without ponding, renders the road more slippery and palpably unreasonably unsafe in its present condition.

At minimum, a guide railing should have been installed at the sharp point of the curve, so as to deflect any skidding car from the trees and sustain them on the road surface, so as to minimize any damage from an accident. In addition, overhead blinking signs (double yellow lights) with "dangerous curve" signs should have been posted. The lack of these safety precautions in advance of the road being traveled by the public rendered that portion of Jackson Avenue inherently dangerous and inherently unsafe for driving generally[,] and inherently dangerous and unfit for driving during rain falls.

[(Footnote omitted.)]

On a motion for summary judgment, the question is whether Pluchino has made out a prima facie case for liability under N.J.S.A. 59:4-2(a) or (b).

The County argues that its liability cannot be premised on subsection (a), "a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition," because of the design immunity afforded by N.J.S.A. 59:4-6. That statute provides:

Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, either in its original construction or any improvement thereto, where such plan or design has been approved in advance of the construction or improvement by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.

The County bases its assertion of design immunity on the fact that the signage adjacent to the curve was approved by "a public employee exercising discretionary authority to give such approval." That position, however, assumes that the configuration of the curve and the configuration of the adjacent signage must be viewed together as the "public property" for the purposes of analysis under N.J.S.A. 59:4-6 in this case. We disagree with that approach, although we conclude that the record does not support liability under N.J.S.A. 59:4-2(a) for another reason.

As we will explain, the issue of the adequacy of the signage relates to the question of whether the County took adequate steps to warn against the dangers of the curve, a question that implicates N.J.S.A. 59:4-2(b). The issues of whether the configuration of the curve itself is dangerous and whether design immunity is applicable are separate from the issue of the adequacy of warnings or remedial measures.

Nevertheless, the record does not provide support for a factual assertion that the County or its employees were responsible for the configuration of the curve, which would be required for liability under N.J.S.A. 59:4-2(a). The County did not design or create Jackson Road. It acquired it as an existing road from the Borough of Rutherford during the second decade of the twentieth century. There are no facts in the record to suggest that the County reconfigured the curve after its acquisition of the road. In fact, Goldblatt criticizes the County for failing to do so. Absent such reconstruction by the County or its employees, there can be no liability under N.J.S.A. 59:4-2(a).

We now address potential liability under N.J.S.A. 59:4-2(b). As is apparent from Goldblatt's report, the liability asserted against the County is premised on its failure to take steps to remediate or warn against the inherent dangers of the Jackson Avenue curve. To make a prima facie case of liability under N.J.S.A. 59:4-2(b), a plaintiff must demonstrate (1) that "the injury was proximately caused by the dangerous condition, [(2)] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred;" (3) that the "public entity had actual or constructive notice of the dangerous condition"; and (4) that the notice was "a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." We are satisfied that the first two requirements have been met for the purposes of a motion for summary judgment, and therefore turn to the third requirement, which is notice.

Pursuant to N.J.S.A. 59:4-3(a), a public entity has "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." It has "constructive notice . . . only if the plaintiff establishes that the condition had 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." Id. at (b). "Protect against" is defined to include "repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition." N.J.S.A. 59:4-1(b).

For the purposes of a motion for summary judgment, we are satisfied that the County had actual notice of the dangerous condition of the curve by virtue of the fact that it took action to warn motorists about the curve by placing the warning signs and posting an advisory speed for the curve that was lower than the limit before and after the curve. Goldblatt contends that the warnings posted by the County were inadequate because they did not include "overhead blinking signs (double yellow lights) with 'dangerous curve' signs" and because the County did not install guard rails to deflect skidding vehicles.

If, as is the case here, steps taken by a public entity to "protect against" a "dangerous condition" are at issue, the plaintiff must prove, pursuant to N.J.S.A. 59:4-2, that those steps were "palpably unreasonable," a term that is not defined in the Act. In Kolitch, supra, 100 N.J. at 493, the Supreme Court adopted the following definition:

For today's purposes we accept what was stated in Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979), in which the court differentiated the term "palpably unreasonable" from ordinary negligence:

We have no doubt that the duty of ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff.

We conclude that the term implies behavior that is patently unacceptable under any given circumstance. As one trial court has suggested, for a public entity to have acted or failed to act in a manner that is palpably unreasonable, "it must be manifest and obvious that no prudent person would approve of its course of action or inaction." Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1977), rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979); see also H. Margolis and R. Novack, Tort Claims Against Public Entities 55 (1984) (discussing Williams and Polyard). Moreover, the burden of proof with regard to the palpable unreasonableness of the State's action or inaction is on the plaintiff in a case of this type. Fox v. Township of Parsippany-Troy Hills, 199 N.J. Super. 82 (App. Div.), certif. den., [101] N.J. [287] (1985); H. Margolis & R. Novack, supra, at 54; Comment, The N.J. Tort Claims Act: A Step Forward?, 5 Seton Hall L. Rev. 284, 294 (1974).

See also Muhammad v. N.J. Transit, 176 N.J. 185, 195-96 (2003) (applying the same standard). The Supreme Court addressed the issue again in Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 458-59 (2009).

Consequently, the question becomes whether, when giving Pluchino the benefit of all reasonable inferences from the facts in the record before us, a jury must determine whether the County's actions to address the dangerous condition of the curve by placing warning signs were "palpably unreasonable." That it is a question of fact, Vincitore v. New Jersey Sports & Exposition Authority, 169 N.J. 119, 130 (2001); Furey v. County of Ocean, 273 N.J. Super. 300, 313 (App. Div.), certif. denied, 138 N.J. 272 (1994), does not mean that every suit governed by the "palpably unreasonable" standard must go to trial. As with any other fact question, summary judgment should be awarded when it is determined that the facts do not meet the standard erected by the Legislature. See, e.g., Black v. Borough of Atl. Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993) (holding that although "the 'palpably unreasonable' determination presents a jury question in the sense that it is no longer specifically assigned to the judge[,] . . . like any other fact question before a jury, [it] is subject to the court's assessment whether it can reasonably be made under the evidence presented").

Based upon our review of the record, we conclude that summary judgment was appropriate in this case. Clearly, the County recognized the danger and took steps to warn drivers about the curve. Although Goldblatt believed them to be inadequate and recommended additional measures, he conceded during his deposition that there were no safety code "mandates" for such additional measures. Instead, he characterized them as "recommendations." He did not opine that the County's actions were "palpably unreasonable" or that "no prudent person would approve of [the County's] course of action." There is nothing in the record to suggest that there were similar accidents on the curve on a regular basis, which would suggest that the signage was inadequate. In essence, the record reflects a difference of opinion as to whether the actions taken by the County and its engineer or those recommended by Goldblatt were the best way of configuring the warning signs, but no basis for a finder of fact to determine that the County's approach was "palpably unreasonable." Consequently, Pluchino can not satisfy his burden of proving liability premised on N.J.S.A. 59:4-2(b).

III.

Although we have based our affirmance on somewhat different grounds than those stated by the motion judge, it is well established that we review orders rather than opinions. See State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002); State v. DeLuca, 325 N.J. Super. 376, 389 (App. Div. 1999), aff'd as modified, 168 N.J. 626 (2001).

For the reasons set forth above, we affirm the dismissal of Pluchino's claims against both the Board and the County.

 
Affirmed.

Pluchino also sued the Borough of Rutherford and the State of New Jersey, both of which were subsequently dismissed. The Board and the County filed third-party complaints against Bille and his sister. The dismissal of the claims against the Board and the County rendered their third-party claims against the Billes moot.

The Board further argues that Bille's negligence was the superseding cause of the accident. We do not address that contention because it is not applicable in light of our decision and, even if it were applicable, it would be a jury question. See Martin v. Bengue, Inc., 25 N.J. 359, 374 (1957) ("Proximate and intervening causes are ordinarily jury questions."). We do not address at length the Board's argument that it is entitled to immunity under N.J.S.A. 59:2-3(a) because there are no facts in the record that there were "actual, high-level policy making decisions" or "basic policy determinations" with respect to the cancellation of practice on September 15. Costa v. Josey, 83 N.J. 49, 54-55 (1980). See also Lascurain v. City of Newark, 349 N.J. Super. 251, 287-88 (App. Div. 2002).

At his deposition, Dragan testified that the New Jersey State Interscholastic Athletic Association handbook for 2006-2007 had specific regulations for canceling athletic events in cases of lightning or electrical storms, but conceded that he had no information that there was any lightning or electrical storm on the afternoon of September 15. There is nothing in the record to suggest that there was any such electrical activity on that date.

That the car was uninsured is not relevant. That fact cannot be considered as a proximate cause of the accident. See Burke v. Auto Mart, Inc., 37 N.J. Super. 451, 455 (App. Div. 1955) ("By the great weight of authority automobile registration statutes create only a public duty and do not render an unlicensed driver or the driver of an unregistered vehicle liable to or without recourse against those with whom he collides if he is otherwise exercising proper care. . . . Generally and in New Jersey such results are posited on absence of proximate cause between the violation of the statute and the accident." (citations omitted)), certif. denied, 20 N.J. 304 (1956). We also note that the minimum amount of liability insurance required under N.J.S.A. 39:6B-1 is $15,000, significantly less than the amount of Pluchino's UM/UIM coverage.

We note that there can be no genuine issue of material fact as to whether the signs at issue were placed there only after the accident, as Pluchino appears to contend. The somewhat vague recollections of Perez and others cannot create a genuine issue in light of the County's work order for the signage, which was dated as completed on October 20, 1989-well before the accident.

Immunity pursuant to N.J.S.A. 59:4-5, which relates to "ordinary" traffic signs and signals, is not relevant here because the issue is whether the County took appropriate action to guard against a dangerous condition. Immunity pursuant to N.J.S.A. 59:4-7, which relates to injuries caused "solely" by weather conditions, is not relevant here because Goldblatt opined that the curve was dangerous even in dry weather.

(continued)

(continued)

29

A-1481-07T3

February 1, 2010