ALBERT WOOD v. TOWNSHIP OF WALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ALBERT WOOD and KATHLEEN

DORAN, his wife,

Plaintiffs-Appellants,

v.

TOWNSHIP OF WALL; TOWNSHIP OF

WALL DEPARTMENT OF PUBLIC WORKS;

STATE OF NEW JERSEY; GLENN

GERKEN, P.E. and THE EARLE

COMPANIES,

Defendants-Respondents,

and

CMX, INC.,

Defendant.

__________________________________________________

December 17, 2013

 

Argued October 8, 2013 Decided

 

Before Judges Messano and Rothstadt.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1777-10.

 

Sophia M. Shalaby argued the cause for appellants (Hobbie, Corrigan & Bertucio, attorneys; David P. Corrigan, of counsel; Mr. Corrigan and Ms. Shalaby, on the brief).

 

Paul W. Mackey argued the cause for respondents Township of Wall and State of New Jersey (Amdur, Maggs & Shor, P.C., attorneys; Richard A. Amdur, on the brief).

 

Renard E. Barnes argued the cause for respondent Glenn Gerken, P.E. (Law Offices of Joseph Carolan, attorneys; Mr. Barnes and George H. Sly, Jr., on the brief).

 

Adrian K. Cousens argued the cause for respondent The Earle Companies (Leary, Bride, Tinker & Moran, attorneys; Mr. Cousens, of counsel and on the brief).

PER CURIAM

On June 16, 2008, plaintiff Albert Wood sustained serious injuries while riding a scooter on the Manasquan Bike Trail (the trail) in the Township of Wall. Plaintiff and his wife, Kathleen Doran, filed suit against the township and its Department of Public Works (collectively, Wall); the State of New Jersey (the State); Glen Gerken, P.E.; CMX, Inc., (formerly Schoor DePalma) (CMX); and the Earle Companies, also known as Earle Asphalt Company (Earle). Plaintiff alleged that Wall was negligent in its maintenance, supervision and control of the trail, thereby creating a dangerous condition.1 Plaintiff further alleged that Gerken, CMX and Earl failed to design and construct the trail in a reasonably safe manner.2

The Law Division judge granted Wall and Gerken summary judgment on July 30, 2012, and, on August 20, 2012, the judge granted summary judgment to Earle. Plaintiff's motion for reconsideration was subsequently denied, and this appeal followed.

Plaintiff argues that the judge misapplied various provisions of the Tort Claims Act (TCA) N.J.S.A. 59:1-1 to 12-3, in particular, N.J.S.A. 59:4-2(a) and (b), governing dangerous conditions on public property; N.J.S.A. 59:4-5, which provides a public entity with immunity "for an injury caused by the failure to provide ordinary traffic signals, signs, markings, or other similar devices"; and N.J.S.A. 59:4-6(a), so-called plan or design immunity.3

We have considered plaintiff's arguments in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

The motion record revealed that plaintiff retained an engineer, William Poznak, P.E., L.S., who inspected the trail and furnished a report. Poznak found that at the point where plaintiff fell, the trail had a "maximum downward slope of about twenty . . . percent, which is quite steep." There were "no signs present, or any type of warning, to alert persons of this steeply graded section of bikeway." Poznak cited the National Recreation and Park Association's "Park Planning Guidelines," which stated that "[b]icycle gradients should not exceed eight percent and pitches from four to eight percent should occur for short intervals only." Those standards further provided that when "grades of over five percent are unavoidable, it is well advised to provide a level area and a slightly wider path on the grade or at the top of the slope where the inexperienced cyclist can pull over to the side and dismount." Poznak concluded that the slope of the bike trail was an "unsafe condition," constructed and maintained "contrary to . . . general safety practices and rules prevailing in the industry."

The record in support of the summary judgment motions filed by Wall and Gerken revealed that the trail was constructed on land owned by the State Department of Transportation (DOT). By way of agreement entered into on August 15, 2006, Wall was permitted to construct the trail, while the State retained ownership of the land, subject to Wall's obligations to maintain and repair the trail as necessary. Robert Hendrickson, Wall's acting director of public works, testified at deposition that the trail was "built on the ground that was there, the natural ground that was there. They didn't do a lot of cutting like they would with a road. It follows the contours of the earth."

Gerken designed the trail. Gerken's certification described the permit process, which necessitated approvals by the State Department of Environmental Protection because "[t]he [p]roject contemplated an impact to wetlands, wetland transition areas, and stream crossings . . . ." Gerken stated that after various meetings, "it was agreed that the . . . [trail] would be constructed primarily at the existing grades with the exception of three . . . locations where elevated stream crossings were required." According to Gerken:

[I]t was more feasible to allow the path to follow the contours of the existing topography to be able to meet the desired design criteria of: mitigating excessive clearing of large trees; minimizing disturbance to wetlands and wetlands transition areas; minimizing impact at stream crossings, and mitigating excavation (cutting) and earthwork (filling) along the path to preserve the area's natural features, as much as possible.

 

Gerken also certified that the hill on which the accident occurred "has a slope that is greater than [five percent] and a distance of less than 100 feet." He further stated:

Grades greater than [five percent] are undesirable; however, the guidelines do not provide an absolute maximum slope which should never be exceeded in any circumstance. Where the terrain dictates, grades over [five percent] and less than 500 feet long are acceptable where higher design speeds are used and additional width is provided. The desired width of a bike path should be [ten] feet. Our path consists of a [ten] foot paved surface with [four] feet of stone/gravel at the same elevation . . . effectively providing for [fourteen] feet of a hard durable surface upon which bicyclists may traverse.

 

Moreover, Gerken stated that decreasing the slope in the area where plaintiff fell was not feasible:

[I]f one were to hold the elevation at its high point and maintain a [five percent] slope downward . . . the elevation at the bottom of this steeper sloped area would be [ten] feet higher in elevation[,] requiring significant earthwork, filling, and an extension of the path approximately 200 [to] 250 feet. Essentially, the path would be placed on a mound with undesirable cross-slope sections and the path would extend into the wetlands and wetlands transition areas . . . [t]his . . . did not meet our design criteria and it was not desired by the NJDEP.

Alternatively, the design team could have chosen to "hold the elevation at a low point of the steeper sloped area and maintain a [five percent] slope upwards." This option was impracticable because

the top of the[e] slope would be in a [ten] to [twelve] foot cut requiring several hundred feet to achieve a [five percent] slope under these conditions. Even if an [eight percent] slope were utilized, a [seven] to [eight] foot cut would be necessary and it would take another 200 feet to reach grade. Acceptable cross-sections with a [five percent] or [eight percent] grade would completely destroy a significant number of large trees and result in a major excavation project for this stretch, all of which were contrary to the original design criteria that were established.

 

Although no copies of the actual plans regarding the trail's design or construction were supplied, Gerken attached a drawing he made of that portion of the trail demonstrating the elevations discussed in the certification. Additionally, the record includes various "surveillance reports" filed by DOT indicating that the trail was "completed in substantial conformance with the contract plans and specifications."

II.

"In an appeal of an order granting summary judgment, appellate courts 'employ the same standard [of review] that governs the trial court.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (alteration in original) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). 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, and review those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). In this case, the issues presented are purely legal in nature.

 

 

 

A.

We first note our agreement with plaintiff that it was error to grant Wall summary judgment based upon N.J.S.A. 59:4-2, which provides that a public entity is liable for

[i]njury caused by a condition of its property if . . . 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.

 

[Ibid.]

 

In deciding Wall's motion, the judge concluded that genuine factual disputes existed as to whether the trail presented a "dangerous condition." However, he also concluded plaintiff failed to demonstrate that: 1) Wall had actual or constructive notice of the dangerous condition; and 2) Wall's actions or omissions were palpably unreasonable.

As to the issue of notice, plaintiff correctly points out that the judge failed to consider "the distinction between N.J.S.A. 59:4-2(a), which speaks of a public employee's negligent act or omission that affirmatively creates a dangerous condition, and N.J.S.A. 59:4-2(b), which speaks of a public entity that is on notice of a dangerous condition -- either actually or constructively -- and fails to protect against it." Polzo v. Cnty. of Essex, 209 N.J. 51, 66-67 (2012). As we said in Atalese v. Long Beach Twp., 365 N.J. Super. 1, 5 (App. Div. 2003), "the notice provisions are not applicable where public employees through neglect or wrongful act or omission within the scope of their employment create a dangerous condition." See also Daniel v. State, N.J. Dept. of Transp., 239 N.J. Super. 563, 572 (App. Div. 1990) (finding involuntary dismissal improper because the Law Division "incorrectly interpreted N.J.S.A. 59:4-2 to require actual notice of the dangerous condition even if it was created by a public employee").

Here, it is undisputed that Wall constructed the trail including the slope that plaintiff contends was itself a dangerous condition. However, Wall argues that it did not create a dangerous condition because the slope of the trail "was part of the existing topography." We reject that argument.

"Dangerous condition" is defined as "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. We have said that "a condition of public property which is safe for one activity may become a dangerous condition when the property is converted to a different activity." King v. Brown, 221 N.J. Super. 274, 274-275 (App. Div. 1987). "In most cases, application of the dangerous condition standard requires consideration of both the physical characteristics of the public property as well as the nature of the activities permitted on that property." Id. at 275.

In this case, the natural topography of the land may have been perfectly safe for hiking. It was the construction of the trail, however, that created the alleged dangerous condition, because its foreseeable use included people traversing the natural contours of the land on bicycles and other devices at greatly increased speeds.

Wall argues that the judge's failure to consider N.J.S.A. 59:4-2(a) was immaterial because plaintiff failed to demonstrate the municipality's acts or omissions were "palpably unreasonable." A public entity will not be liable for a dangerous condition on 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." Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 458 (2009) (quoting N.J.S.A.

59:4-2).

The term "palpably unreasonable" implies "behavior that is patently unacceptable under any given circumstance." Muhammad v. N.J. Transit, 176 N.J. 185, 195 (2003) (citations omitted). Although "[p]alpable unreasonableness is a question of fact[,]" Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 130 (2001), it "may be decided by the court as a matter of law in appropriate cases." Maslo v. City of Jersey City, 346 N.J. Super. 346, 350 (App. Div. 2002).

Most of the cases in which the plaintiff, as a matter of law, failed to raise a genuine factual dispute as to the palpable unreasonableness of the public entity also involved a lack of notice to the public entity. Ibid.; and see Carroll v. N.J. Transit, 366 N.J. Super. 380, 390-91 (App. Div. 2004) (noting lack "of any evidence of a history of similar incidents or complaints, or a demonstrable pattern of conduct or practice to suggest the need for a more frequent inspection schedule"); Gaskill v. Active Environmental Technologies, Inc., 360 N.J. Super. 530, 537 (App. Div. 2003) ("The record is devoid of any evidence that any department of the township had constructive or actual notice of the raised tree grate.").

Here, plaintiff's claim is qualitatively different. He contends that the trail was constructed in a manner that was unsafe. He further asserts that defendants only considered the effect of the trail's construction on the surrounding environmentally-sensitive areas. While we express no view on the ultimate merits of the argument, we think that a genuine dispute of material fact exists from this record as to whether the conscious choice to construct the trail in this manner was palpably unreasonable.

B.

Under the TCA, however, "[w]hen both liability and immunity exist, immunity prevails." Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.), certif. denied, 196 N.J. 461 (2008) (citations omitted); and see Weiss v. N.J. Transit, 128 N.J. 376, 382 (1992) (explicit grant of immunity under the TCA "will prevail over the liability provisions") (citations omitted). In granting summary judgment to Wall and Gerken, the judge also applied two different immunity provisions of the TCA.

(i)

In his written opinion deciding Wall's motion, the judge stated, "[f]inally, it should be noted that plaintiff's arguments concerning a failure to warn [are] misplaced, for as [Wall] correctly notes, Title 59 provides absolute sign immunity." The judge cited N.J.S.A. 59:4-5, which provides immunity for injuries "caused by the failure to provide ordinary traffic signals, signs, markings, or other similar devices." He also relied upon our decision in Pandya v. State, Dept. of Transp., 375 N.J. Super. 353, 368 (App. Div. 2005), where we noted that "[t]his immunity applies whether or not the public entity itself created the condition necessitating the traffic signal or sign."

Plaintiff contends the immunity applies only to vehicular traffic on a public street, and not to pedestrian, bicycle, or in this case, scooter traffic, on an recreational path. Wall admits that there are no reported cases applying sign immunity to such paths, but it contends that the decision to post a sign warning of a steep portion of a bicycle path, and the exact wording of that sign, are "precisely the type[s] of discretionary activit[ies] to which . . . immunity must apply."4

As noted, this immunity applies to injuries arising from a public entity's failure to provide "ordinary traffic signals, signs, markings, or other similar devices." N.J.S.A. 59:4-5 (emphasis added). Although "traffic" is undefined in the TCA, Title 39 defines "[t]raffic" as "pedestrians, ridden or herded animals, vehicles, street cars, and other conveyances either singly, or together, while using any highway for purposes of travel." N.J.S.A. 39:1-1 (emphasis added). "Highway," in turn, "means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." Ibid. (emphasis added). Title 39's definition of "vehicle," excepts "devices moved by human power." Ibid.

However, Title 39 generally applies to the operation of bicycles. "Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle . . . ." N.J.S.A. 39:4-14.1a; see also Schomp v. Wilkens, 206 N.J. Super. 95, 102 (App. Div. 1985) (holding that a bicyclist's violations of Title 39 were evidence of negligence). Although Title 39's definition of "roadway" is limited to "that portion of a highway . . . improved, designed, or ordinarily used for vehicular travel," N.J.S.A. 39:1-1, N.J.S.A. 39:4-14.1a specifically provides that "[r]egulations applicable to bicycles shall apply whenever a bicycle is operated upon any highway or upon any path set aside for the exclusive use of bicycles . . . ." (Emphasis added).

Although the governing statutes are somewhat imprecise, we conclude that the TCA immunizes a public entity's decision-making regarding "ordinary traffic signals, signs, markings, or other similar devices" on a bike trail. See generally, N.J.S.A. 59:2-3a (immunizing a public entity "for an injury resulting from the exercise of judgment or discretion vested in the entity"). Our conclusion is consistent with the broad construction given to N.J.S.A. 59:4-5 in other less-novel circumstances. See, e.g., Kolitch v. Lindedahl, 100 N.J. 485, 496 (1985) (immunity applies to the failure to warn of the hazardous nature of a curve in the roadway); Weiser v. County of Ocean, 326 N.J. Super. 194, 202 (App. Div. 1999) (county was immune from liability based upon alleged failure to paint road markings); Aebi v. Monmouth County Highway Dep't, 148 N.J. Super. 430, 433 (App. Div. 1977) (entity was immune from liability for failing to warn of road narrowing before bridge).

Therefore, to the extent that plaintiff's claim rested upon a failure to provide any signs or warnings regarding the trail's slope, summary judgment was properly granted. We affirm the orders under review in that limited respect.

(ii)

In granting Gerken's cross-motion for summary judgment and the summary judgment motion filed by Earle, the judge concluded that plan or design immunity applied. N.J.S.A. 59:4-6.5 The judge rejected plaintiff's argument that, although the plans for the trail were approved by the appropriate governmental agencies, safety considerations were never taken into account. Instead, the judge concluded that "Gerken need only establish that 'specific design or plan detail alleged to constitute the dangerous condition,' i.e., the angle of slope, was considered and approved, not safety conditions in particular." (citations omitted).

Before us, plaintiff reiterates that plan or design immunity should not apply because "defendants have failed to demonstrate that the dangerous condition was specifically considered in the design." Defendants counter by arguing that the TCA does not require the public entity to "present specific evidence that it considered the safety of the element in question," but "only that the design or plan detail alleged to constitute a dangerous condition was considered and approved."

N.J.S.A. 59:4-6a provides:

Neither the public entity nor a public employee is liable . . . for an injury caused by the plan or design of public property . . . 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.

 

"A public entity does not automatically receive the benefit of that immunity." Wymbs v. Twp. of Wayne, 163 N.J. 523, 539 (2000). "It is well established that the burden is on the public entity both to plead and prove its immunity under [the TCA], . . . and that to succeed on a motion for summary judgment, the entity must 'come forward with proof of a nature and character [that] would exclude any genuine dispute of fact . . . ." Kolitch, supra, 100 N.J. at 497 (quoting Ellison v. Housing Auth. of South Amboy, 162 N.J. Super. 347, 351 (App. Div. 1978) (alteration in original)).

"Application of plan-or-design immunity turns on whether the public entity has approved the feature in question so as to immunize it from challenge." Manna v. State, 129 N.J. 341, 353 (1992). "In other words, 'the public entity must establish that an approved feature of the plan sufficiently addressed the condition that is causally related to the accident.'" Ibid. (quoting Thompson v. Newark Housing Auth., 108 N.J. 525, 536 (1987)). "[T]he defect that causes the injury must be in the plans before immunity is conferred." Thompson, supra, 108 N.J. at 535.

Importantly, "plan or design immunity does not depend upon any showing of the reasonableness of the design, nor can it be lost by changed circumstances . . . ." Birchwood Lakes Colony Club v. Medford Lakes, 90 N.J. 582, 599 (1982). "[A]lthough liability cannot be based on the inadequacy of the design or plan, immunity from liability for an independent affirmative act . . . is afforded in the first instance only for an approved feature of the plan or design." Ibid. (emphasis added).

In this case, we reject plaintiff's contention that defendants were not entitled to plan or design immunity because they failed to demonstrate specific consideration of the safety of the trail. See ibid. ("liability cannot be based on the inadequacy of the design or plan"); and see Kolitch, supra, 100 N.J. at 497 (noting that even if the curve at issue was a dangerous condition, the entity was immune pursuant to N.J.S.A. 59:4-6). However, based upon the motion record provided, we agree with plaintiff's assertion that "defendants have failed to demonstrate that the dangerous condition was specifically considered in the design."

In this regard, although we were told at oral argument that plans for the trail exist, none were furnished as part of the record. Gerken's certification included no plans, but instead included a hand-drawn sketch with elevations Gerken claimed applied to the particular stretch of the trail.

More importantly, having carefully reviewed Gerken's certification, we cannot conclude that it established as a matter of law that the actual slope of the trail, as it would exist after construction, was specifically considered. Gerken made no such affirmative assertion.

Instead, the certification emphasized the need to follow the "contours" of the land in order to avoid adverse impacts on the environment. Clearly recognizing the standards cited by Poznak, Gerken noted that slopes of greater than five percent were "disfavored." And, Gerken's certification explained what changes would be necessary in order to reduce the trail's slope to five percent or less. But, the certification failed to state that Gerken, or anyone else, actually considered that the trail, if built on the existing "contours" of the land, would have a slope of twenty percent, far exceeding those recognized standards.

We carefully limit our decision lest it be misconstrued. "[I]mmunity is contingent upon proof that discretion was actually exercised at [the planning] level by an official who, faced with alternative approaches, weighed the competing policy considerations and made a conscious choice." Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 109 (App. Div.) (quoting Costa v. Josey, 83 N.J. 49, 59 (1980)) (alteration in original), certif. denied, 156 N.J. 407 (1998). On an expanded record, defendants may well demonstrate that Gerken, fully aware of the resulting slope if the trail followed the natural topography, nevertheless made a choice to design a trail that far exceeded the slope recommended by national standards. If defendants can demonstrate they "considered the general condition about which . . . plaintiff complains in formulating the original plan or design," they would be entitled to plan and design immunity. Ibid.

Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.

1 Because Kathleen Doran's claims are derived wholly from her husband's claims, we use "plaintiff" in the singular. Moreover, apparently pursuant to its agreement to "indemnify, defend, protect and save harmless the State[,]" Wall answered on behalf of the State, so we refer only to Wall throughout this opinion.

2 CMX did not file an answer and, apparently pursuant to Rule 1:13-7(a), the court dismissed the complaint against CMX on March 9, 2012.

3 If the public entities were entitled to immunity, the private entities were derivatively immune under the TCA. See, e.g., Vanchieri v. New Jersey Sports & Exposition Auth., 104 N.J. 80, 87 (1986) (noting that although contractors may claim TCA immunity under the ambit of the public entity, "public contractors' derivative immunity under the [TCA] is an affirmative defense" which "the party seeking this immunity bears not only the burden of pleading . . . but also the burden of persuasion").

4 At deposition, Doran claimed that, after the accident, she spoke to representatives of Wall urging them to place a sign on the path where her husband fell, and they did.

5 In a footnote in his written decision, the judge noted that "[w]hile not briefed by [Wall], this Court finds that the argument for immunity under N.J.S.A. 59:4-6 applies with equal force to [Wall], and would serve as [an] alternative reason for granting its motion for summary judgment."