JOSEPH G. CASELLA v. TOWNSHIP OF MANALAPAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3680-09T1

JOSEPH G. CASELLA,

Plaintiff-Appellant,

v.

TOWNSHIP OF MANALAPAN,

Defendant/Third-Party

Plaintiff-Respondent,

and

PAULINE H. DUNN,

Third-Party Defendant/

Respondent.

____________________________________________________

April 19, 2011

 

Argued March 15, 2011 - Decided

 

Before Judges Carchman and Messano.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3194-08.

 

S. Gregory Moscaritolo argued the cause for appellant (Roberts & Moscaritolo, LLC, attorneys; Keith J. Roberts and Mr. Moscaritolo, on the brief).

 

Joseph Maddaloni, Jr., argued the cause for respondent Township of Manalapan (Trenk, DiPasquale, Webster, Della Fera & Sodono, P.C., attorneys; Richard D. Trenk, Mr. Maddaloni and Jodi M. Luciani, on the brief).

 

Respondent Pauline H. Dunn has not filed a brief.

PER CURIAM

Plaintiff Joseph G. Casella appeals from the grant of summary judgment to defendant, Township of Manalapan, based upon the plan or design immunity provisions of N.J.S.A. 59:4-6(a). We have considered the arguments raised in light of the record and applicable legal standards. We reverse.

On July 20, 2006, plaintiff was riding his motorcycle in an easterly direction on Mill Road in Manalapan. Pauline Dunn was driving her car in a northerly direction on Tall Woods Drive, approaching its T-intersection with Mill Road. There was a stop sign controlling traffic exiting Tall Woods Drive. Dunn stopped and then proceeded into the intersection apparently without observing plaintiff's motorcycle. Plaintiff attempted to avoid a collision with Dunn but was unable to do so. The motorcycle crashed into Dunn's car, and plaintiff was ejected from the bike and rolled over the hood of Dunn's car, landing on the pavement.

On July 7, 2008, plaintiff commenced suit alleging defendant had negligently "design[ed], erect[ed] and maintain[ed]" the stop sign at the intersection at a distance "of approximately fifty . . . feet from the curbline of Mill Road," creating a "dangerous condition" at the intersection. Defendant answered and filed a third-party complaint against Dunn.1 Discovery ensued.

A November 13, 2006 police department memo authored by Manalapan Police Department patrolman Robert Kelly noted the following:

Recently, a serious motor vehicle crash occurred at the intersection of Tall Woods Drive and Mill Road. During the investigation of the crash, it came to my attention that the stop sign and stop bar placement on Tall Woods Drive were 49 feet from [the] intersection of Mill Road. At the location of the stop bar and stop line, there is very limited sight distance of Mill Road.

 

I consulted with Township Engineer, Len Miller, regarding the placement of the stop sign and stop bar . . . . In short, the stop sign and stop line placement are not in compliance with the Manual On Uniform Traffic Control Devices (MUTCD). I have attached . . . Miller's memo regarding the proper placement of stop signs/stop bars for your perusal. . . .

 

I am requesting that you please move the stop sign[] and stop bar[] on Tall Woods Drive as close as possible to the intersection of Mill Road, bringing [it] in compliance with the MUTCD.2

 

The attached memo from Miller, defendant's Director of Engineering, indicated that his review of the MUTCD required the stop sign to "be located as close as practical to the intersection it regulates, while optimizing its visibility to the road user." Miller interpreted the MUTCD to require the stop line to be no "more than 30 ft. nor less than 4 ft. from the nearest edge of the intersecting traveled way."

Plaintiff produced a report from an engineering expert who opined that the placement of the stop line and sign did not comply with the MUTCD and created a dangerous condition at the intersection by limiting the sightlines of drivers exiting Tall Woods Road. Defendant also produced an expert who, while not specifically addressing whether the placement complied with the MUTCD, nonetheless concluded that adequate sightlines were provided, and the accident was essentially Dunn's fault alone.

Defendant moved for summary judgment arguing that it was entitled as a matter of law to the plan and design immunity afforded by N.J.S.A. 59:4-6. In support of its motion, defendant offered various documents setting forth the history of Mill Road Estates I, the residential development which includes the intersection at issue. Manalapan's Planning Board approved preliminary and major subdivision of the project by resolution dated March 13, 1987. As part of the Planning Board's review of the project, the site plans were circulated for review by municipal departments. Defendant's police department recommended that stop signs be erected at both ends of Tall Woods Road, but offered no suggestions regarding details of their installation. The Planning Board's subsequent resolution granting final approval in October 1987 expressly notes consideration of the police department s recommendation concerning the stop signs, but makes no reference to the precise location. It is undisputed that defendant produced no plans indicating where the proposed locations of the stop line or stop sign were to be, or where they were actually installed.

During construction of Mill Road Estates I, defendant retained an independent engineer, CME Associates (CME), to ensure the project was constructed according to approved plans, and to approve releases of the performance bonds posted. On November 11, 1987, CME documented the installation of two stop signs on its list of completed improvements; the locations of the signs are not disclosed. On December 11, 1992, CME submitted a report to Manalapan's mayor and the township committee regarding the balance of performance guarantees required of the developer. The report again lacked detail regarding the developer's installation of two stop signs.

The project was essentially completed in November 1994. In a memo dated December 14, 1994, CME approved the improvements and recommended release of the remaining performance bonds after a field inspection. Miller notified the governing body, which in turn passed a resolution releasing the bonds on December 24.

Miller was deposed during this litigation. He testified that the plans for Mill Road Estates I do not show the placement of any stop signs at the intersection. He also testified as follows:

Q: Did the Township of Manalapan require that all traffic devices that were erected as part of Mill Road Estate be in accordance with the manual on traffic control devices?

 

A: Yes.

 

. . . .

 

That is the rule that you would have to go by. Those are the regulations that you would have to go by, that is the standard.

 

. . . .

 

Q: So do you have any knowledge as to whether or not the Township approved a particular plan or design for this stop sign prior to releasing the performance guarantees?

 

. . . .

 

A: No, I don t.

 

Q: [D]id you verify in any way that the stop sign at the intersection of Tall Woods Drive and Mill Road complied with the MUTCD?

 

. . . .

 

A: No, not me personally.

 

Q: [D]o you have knowledge that anyone else verified that the particular stop sign complied with the MUTCD?

 

A: No, I can t say for certain because I do not know what was on the reports from the field inspector.

 

. . . .

 

Q: Do you know if there was any approved plan or design for the placement of a stop line for this Mill Road Estates development?

 

A: There was no plan.

CME Engineer Gregory R. Valesi, who did not begin working with defendant until after Mill Road Estates I was completed, was also deposed. He testified as follows:

Q: You are familiar with the MUTCD?

 

A: Yes.

 

. . . .

 

Q: In reviewing this matter . . . were you able to uncover any approved particular design or plan for the stop sign or the stop line at this intersection?

 

A: No.

 

Valesi also offered an opinion that the placement of the stop line and sign as of the date of plaintiff's accident complied with MUTCD standards because the intersection was a "wide throat intersection." Valesi opined that in such circumstances, placement was left to "the judgment of the designer."

Upon considering the oral arguments of defendant and plaintiff, the motion judge issued an oral opinion on March 8, 2010. After reciting the evidence in the record, the judge concluded:

All of these facts, however, only appear to show the stop signs were installed and constructed. There are no specific plans provided that indicate the distance that these signs should be installed from the intersection.

 

. . . .

 

Here, the actual blueprints for the development were not presented to the Court. And plaintiff urges that that must be the case in order . . . to be afforded the benefits of the design immunity. However, this Court is satisfied that the inclusion of the stop signs and the placement, pursuant to township ordinances, and the Manual on Uniform Traffic Control Devices, approved by the planning board, the inspections by the township engineer, and I should note that the -- the engineer s report indicates that the signs were, in fact, installed according to MUTCD, the Manual on Uniform Traffic Control Devices. That is, within 50 feet of the intersection.

So the inspection by the township engineer, inspections, and the ultimate release of the performance bond, is indicative that the signs were, indeed, part of the plans and, therefore, this Court is satisfied that they are -- that the township is entitled to the design immunity found under N.J.S.A. 59:4-6. Accordingly, the township s motion for summary judgment is granted.

 

The judge entered the order under review and this appeal ensued.

In reviewing a grant of summary judgment, we apply the same standard as the motion judge. EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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).]

 

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on issues of law. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

The sole issue on appeal is whether the motion judge properly applied summary judgment standards to conclude that defendant was entitled, as a matter of law, to the plan and design immunity afforded by N.J.S.A. 59:4-6(a). That section of the Tort Claims Act (TCA) N.J.S.A. 59:1-1 to 12-3, 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.

[N.J.S.A. 59:4-6(a).]

 

"To establish an entitlement to plan or design immunity, a public entity must demonstrate that 'an approved feature of the plan sufficiently addressed the condition that is causally related to the accident.'" Wymbs v. Twp. of Wayne, 163 N.J. 523, 539 (2000) (quoting Manna v. State, 129 N.J. 341, 353 (1992)). Plan and design immunity is an affirmative defense and "the burden is on the public entity both to plead and prove its immunity under" the TCA. Kolitch v. Lindedahl, 100 N.J. 485, 497 (1985).

In Thompson v. Newark Hous. Auth., 108 N.J. 525, 534 (1987), the Court explained the rationale behind plan and design immunity.

[T]h[e] defense is predicated upon the concept of separation of powers -- that is, the judicial branch through court or jury should not review the discretionary decisions of legislative or executive bodies, to avoid the danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested.

. . . .

Hence it follows that there is no second-guessing unless the particular feature that causes the condition was in fact an approved feature of the plan. Thus, if engineering drawings provide for the particular location of manhole covers that creates a dangerous condition, the public entity will be immune; but if the plans do not specify the location of the manhole, liability can be found; or if a highway design shows centerline elevations but not the degree of S-curve banking, immunity does not extend to a dangerously banked curve. Put succinctly, one basic element of plan or design immunity is that there first must be established a causal relationship between the plan and the accident.

 

[Ibid. (quotations and citations omitted).]

 

"If the plans sufficiently embrace the condition that is the subject matter of plaintiff's claim, they should be given pre-emptive effect; if they do not, the defense of plan or design immunity must fall." Id. at 537. The Thompson Court left "undefined the issue of the extent to which plans must sufficiently embrace the condition in question before immunity attaches." Ibid. (quotations omitted).

We apply these standards to the facts in this case.

Initially, we note that plaintiff correctly argues the motion judge resolved disputed facts in favor of defendant which is, of course, contrary to the requirements of Rule 4:46-2. For example, the judge concluded that

the inclusion of the stop signs and the placement, pursuant to township ordinances, and the Manual on Uniform Traffic Control Devices, approved by the planning board, the inspections by the township engineer, and I should note that the -- the engineer s report indicates that the signs were, in fact, installed according to MUTCD, the Manual on Uniform Traffic Control Devices. That is, within 50 feet of the intersection.

 

Whether the placement of the stop line and sign was in conformance with the MUTCD is a hotly-disputed fact in this litigation.

Moreover, there is nothing in the record that demonstrates any governmental official or body had actually approved the specific location of the stop line and sign. Defendant produced no plans indicating a particular design for the placement of the stop line and sign at the intersection. Miller, the township engineer, acknowledged "[t]here was no plan," and that he did not personally inspect the installation as completed. Miller also could not "say for certain" whether anyone, including presumably CME, verified that the placement of the line and sign complied with the MUTCD.

Valesi confirmed that he could not produce "any approved . . . plan for the stop sign or the stop line at th[e] intersection." The documentation from CME that was contemporaneous with defendant's approval of the overall project demonstrated only that a stop sign was installed in accordance with the wishes of the police department and the resolutions of the Planning Board. Nothing in the CME documentation remotely demonstrates that the installation complied with MUTCD standards, or, more importantly, that anyone acting on defendant's behalf, concluded that it did and approved the placement.

When the motion evidence is properly considered under summary judgment standards, the issue devolves to a purely legal one. That is, has defendant demonstrated as a matter of law that "the condition . . . causally related to the accident," i.e., the reduction in sightline caused by the placement of the stop line and sign, was "sufficiently addressed" as "an approved feature of the plan[?]" Wymbs, supra, 163 N.J. at 539 (internal quotations omitted).

In this regard, defendant argues that the record clearly demonstrates that the stop sign was "an [a]pproved [f]eature of the [p]lan" even though it did not appear on any site plan drawings. We do not disagree. The police department recommended a stop sign be installed, the Planning Board's resolution acknowledged the police department's suggestion, and the reports from CME demonstrate that a sign was installed. Whether defendant's requirement that a stop sign be installed, without any further direction or approval, "sufficiently addressed" the condition that plaintiff claims caused the accident is a different issue.

Defendant relies upon this statement in Manna: "Immunity attaches to the [public entity's] decision regarding how to design a particular feature, and does not turn on explicit consideration of specific options." Manna, supra, 129 N.J. at 357. We do not disagree that if the record demonstrated defendant approved the location of the stop line and stop sign, immunity would lie regardless of whether defendant considered any other specific options. However, in this case, there was inadequate evidence in the motion record to conclude that defendant had "design[ed] [the] particular feature," or that the general decision to require the installation of a stop line and sign "sufficiently addressed" the condition that allegedly caused the accident.

We conclude that the evidence in the motion record was inadequate to support the grant of summary judgment to defendant based upon the immunity provided by N.J.S.A. 59:4-6(a).

Reversed.

1 Defendant's pleading is not in the appellate record.

2 The memo is addressed to "John Lewis." It is unclear from the record whether Lewis was employed by defendant and, if so, in what capacity. The record contains various documents from defendant's Department of Public Works indicating that the stop line and signs were moved in December 2006.