GILBERT HERNANDEZ v. COUNTY OF MIDDLESEX

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0738-07T30738-07T3

GILBERT HERNANDEZ,

Plaintiff-Appellant,

v.

COUNTY OF MIDDLESEX and

TOWNSHIP OF WOODBRIDGE,

Defendants-Respondents,

and

GENEVA HALSTEAD,

Defendant,

and

COUNTY OF MIDDLESEX and

TOWNSHIP OF WOODBRIDGE,

Third-Party Plaintiffs,

v.

GENEVA HALSTEAD,

Third-Party Defendant.

_________________________________________

 

Argued August 5, 2008 - Decided

Before Judges Sapp-Peterson and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9510-04.

John H. Sanders II argued the cause for appellant (Eichen, Levinson & Crutchlow, attorneys; Mr. Sanders, on the brief).

John L. Antonas argued the cause for respondent County of Middlesex (Law Offices of Peter J. Barnes III, attorneys; Mr. Antonas, on the brief).

Arnold R. Gerst argued the cause for respondent Township of Woodbridge (Weiner Lesniak, attorneys; Alan J. Baratz, of counsel and on the brief; Mr. Gerst, on the brief).

PER CURIAM

Plaintiff Gilbert Hernandez appeals from the June 7, 2007 order granting summary judgment dismissing his complaint against defendants Woodbridge Township (the Township) and Middlesex County (the County) (collectively defendants). The motion judge concluded that the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (Act), barred plaintiff's claims against defendants. We agree and affirm.

Plaintiff sustained injuries as a result of a motor vehicle accident occurring at the intersection of Smith Street and Highland Avenue in Woodbridge. Plaintiff commenced a civil action in which he named, among others, the Township and the County on the basis that these two defendants "owned, maintained, supervised, controlled, operated, and [were] otherwise responsible for in some capacity, either in whole or in part, the roadways and intersection in question." Following the completion of discovery, defendants filed motions for summary judgment. Prior to the return date of oral argument on the motions, plaintiff filed a motion on short notice to reopen discovery and serve an expert report. That motion was granted.

Plaintiff's expert, Robert T. Hintersteiner, a professional engineer, authored a ten-page report in which he opined that the Township's actions resulted in this accident. He explained that the Township, knowing of the hazardous condition that existed, should have "installed and maintained advance warning signs on Smith Street prior to Highland Avenue to give adequate warning to motorists [that] were approaching a blind intersection." In addition, Hintersteiner opined:

The Township of Woodbridge, as a public entity, had a duty to provide emergency signals, signs, markings or other devices if such devices were necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care. The Township of Woodbridge failed in this duty by allowing people driving on Smith Street to drive into a palpably unreasonable trap situation with an unusual risk of serious injury due to, among other issues addressed elsewhere in this report, the speed of the vehicles driving on Smith Street at the location of the accident and the visibility for the vehicles traveling in the direction Mr. Hernandez was driving on the day of the accident and for the vehicles driving in the direction of the vehicle driving on Highland Avenue at this intersection.

Oral argument on defendants' summary judgment motion took place on May 25, 2007. Defendants argued that they were entitled to summary judgment based upon the plan and design immunity provisions under Chapter 4 of the Act, Conditions of Public Property, Liability of the Public Entity and, more specifically, Section 59:4-6. Additionally, defendants argued that the Act's discretionary provisions contained in Section 59:2-3 and the immunity provisions under Section 59:4-5 for failure to provide ordinary traffic signals, provided additional grounds for relief.

In opposition to the motion, plaintiff urged that there were genuinely disputed factual issues as to whether the plan and design immunity provisions applied. Relying upon the Supreme Court's decision in Costa v. Josey, 83 N.J. 49, 59 (1980), plaintiff's counsel argued that defendants were required to show that discretion was exercised at the planning level

by an official who[,] faced with alternative approaches, weighed the competing policy considerations and made a conscious choice. That's what they have to show. They have to show that there's a balancing of the risks, the different risks and advantages of the different approache[s] to the design of this area . . . of road.

Plaintiff also highlighted the deposition testimony of a number of defendants' representatives; in particular, Richard Wallner, Assistant County Engineer, who was unable to testify with any certainty when the intersection of Smith Street and Highland Avenue was first designed, nor did he know whether the roadway had been redesigned. Plaintiff's counsel also pointed out that in response to his opposition, he received a certification from another County engineer certifying that there are "600 design plans for this[,]" which plaintiff's counsel represented he had not seen or been provided. Finally, plaintiff's counsel argued that the roadway had been redesigned in 2000, resulting in the diversion of all of the traffic from what was formerly two intersections to one intersection on Highland Avenue, causing an increase in traffic.

In response to these arguments, counsel for the County represented to the court that the design plans plaintiff's counsel advised he had not seen were for the entire Route 440 connector and that for purposes of the motion, what was produced was the "first sheet to show the intersection and the continuing one, because the continuing one doesn't show the intersection, but the intersection is right near the border." Defendants also produced documentation evidencing approval of the entire Route 440 construction project that included Smith Street. With respect to the contention that the roadway had been redesigned in 2000, the County attorney argued that this action represented an improvement to the property, not a redesign of a plan, and the plan and design immunity applied to improvements as well.

In a subsequent written decision, the court found that defendants were entitled to summary judgment based upon the plan and design immunity provisions under the Act and there was no evidence "that either defendant affirmatively altered either Highland Avenue or Smith Street to create a dangerous condition." Plaintiff moved for reconsideration. On the return date of the motion, plaintiff's counsel represented to the court that all of its arguments in support of reconsideration were directed to the County's liability and that plaintiff was "ask[ing] for reconsideration of the . . . judgment granted to the County." The Township nonetheless participated in the motion because the County raised the argument that if it was brought back into the case, then the claims against the Township should also be restored.

Plaintiff contended that the court, in its decision, raised some factual issues which were the basis of plaintiff's contention that the court's earlier ruling was erroneous. Specifically, plaintiff's counsel argued that plaintiff was not relying upon a cost sharing agreement as a basis for the imposition of liability. Rather, plaintiff urged that it was relying upon

the fact [that] . . . this is an improperly designed roadway and intersection which is only controlled by the County[,] that the improper design . . . and the redesign[,] which was also improper, were done by the County and that the County has not met its burden of proof to show that it's entitled to immunity under . . . the [T]ort [C]laims [A]ct.

Plaintiff's counsel reiterated that in order for plan and design immunity to attach, the government entity "has to provide the evidence to meet that affirmative defense to show that there was actually some deliberative process that took place with respect to whatever the defect that's alleged is. That they considered and weighed the options and that they went with the one they had."

The County urged the court to deny the motion, contending that the 599 design plans plaintiff's counsel had not been provided were "section 440 for east of Crows Mill Road to another area. The intersection of Highland Avenue and Smith Street was only on one such page which was produced." The County's attorney also noted that the County submitted a certification from its assistant county engineer detailing the approval process for the relevant portion of the Route 440 construction project related to Smith Street and Highland Avenue. The court denied the motion, finding no decisions which the court overlooked or any error in its findings and conclusions. This appeal followed.

On appeal, plaintiff contends that defendants are not entitled to invoke the plan and design immunity provisions under Section 59:4-6 or the immunity provisions outlined in Section 59:4-5 for the failure to post warning signs. We address the applicability of these two sections, although the motion judge's decision was limited to immunity based upon Section 59:4-6.

Our analysis begins with a reiteration of the basic principles of appellate review. While our review is de novo, in determining whether summary judgment was properly granted, we employ the same standard of review as that of the trial court in resolving summary judgment motions. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where there is no genuine issue as to any material fact challenged. R. 4:46-2(c). Moreover, where, as in this case, the salient facts are not genuinely disputed, our function is to determine whether the judge's legal conclusions are correct. Prudential Prop. Ins. v. Boylan, supra, 307 N.J. Super. at 167; Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 366 (App. Div.), certif. denied, 149 N.J. 409 (1997).

Because plaintiff sustained injuries as result of a motor vehicle accident on a public roadway, any recovery against defendants is governed by the provisions of the Act. The Act re-established immunity for public entities except in limited circumstances as set forth in the Act. The Act expressly prohibits recovery against a public entity arising out of the plan and design of public property:

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.]

Here, defendants produced proof that the intersection of Smith Street and Highland Avenue was part of the 1 969 Route 440 construction project that was approved by the Commissioner of Transportation (Commissioner) in advance of construction, obviously exercising his discretionary authority to do so. Plaintiff's reliance upon Costa is misplaced.

In Costa, the plaintiff's decedents were killed when a vehicle crossed over the median barrier and collided with the vehicle in which they were passengers. As we described in our decision, the defendant maintained that when the roadway was originally constructed, it consisted of

a four-inch base with vertical facing which provided for future resurfacing of the adjacent road surface during the useful life of the divider. The vertical facing also acted to provide some warning to alert drivers who inadvertently contacted it at a slight angle. In 1962 the Department made the decision to resurface 1.098 miles of Route 4 in Teaneck. A design was created and plans were approved by the State Highway Engineer and the State Highway Commissioner. The resurfacing was accomplished according to the approved plans. Specifically, the resurfacing project placed 2 1/2 inches of fine aggregate bituminous concrete on the concrete surface in the area which became the scene of the recited accident. This application reduced the 4-inch divider base to approximately 1 to 1 1/2 inches of vertical facing.

[Costa v. Josey, 160 N.J. Super. 1, 5 (App. Div. 1978).]

In reversing our decision affirming the trial court's grant of summary judgment to the defendant based upon the plan and design immunity provisions under the Act, the Court held that a genuinely disputed issue of fact existed as to whether the original plan and design of the roadway where plaintiffs were killed contemplated that resurfacing would reduce the height of the median barrier dividing the eastbound and westbound lanes of Route 4 in Teaneck. In a footnote, however, the Court made clear that a public entity is absolutely immune from liability where the plan or design has been approved in advance of the construction or improvement, irrespective that "a dangerous condition may subsequently arise." Costa, supra, 83 N.J. at 53 n.1. (emphasis added).

Likewise, none of the remaining cases cited by plaintiff provide a basis to defeat defendant's summary judgment motion. In Thompson v. Newark Hous. Auth., 108 N.J. 525, 538 (1987), the plaintiffs claimed that the absence of smoke detectors resulted in a fire in defendant's publicly-owned apartment, causing the death of plaintiffs' child. In reversing our grant of summary judgment based upon plan and design immunity, the Court found there was no evidence in the record that public officials responsible for approving the project gave any consideration to fire safety and then, irrespective of such consideration, approved the construction of the apartment complex without the installation of smoke detectors. Consequently, the Court concluded that the defendant housing authority could not invoke the plan and design immunity provisions under the Act.

In Luczak v. Twp. of Evesham, 311 N.J. Super. 103, certif. denied, 156 N.J. 404 (1998), the evidence produced at trial revealed that the roadway at issue had been an old stagecoach road and had never been formally designed. Id. at 106. We reversed the directed verdict entered in favor of the defendant because we concluded the "defendant presented no evidence that it or any of its departments or employees approved any plan or design concerning the condition of [the roadway] about which [the] plaintiff complains or made any other decision concerning [the roadway]." Id. at 109. (citations omitted).

Finally, in Daniel v. State Dep't of Transp., 239 N.J. Super. 563, 601 (App. Div. 1990), we affirmed the jury verdict in favor of the plaintiff. The jury found that the plaintiff's decedent's death was, in part, caused by a dangerous condition of the roadway. In affirming the jury's verdict, we found there was, at the very least, a jury question as to whether the conditions of the roadway about which the plaintiff complained were part of the specific plan and design of the original roadway or the result of routine maintenance. Id. at 597.

Here, there is no dispute that in 1969, the Commissioner, in advance, approved the plans and design for the Route 440 construction project, which approval included the intersection of Smith Street and Highland Avenue. There is also no dispute that approval by the Commissioner represented the highest level of discretionary authority, as the Commissioner, through the Department of Transportation, was then and is now the official to whom the Legislature has delegated the authority to oversee state construction projects for transportation systems. See N.J.S.A. 27:1A-3 (transferring, in 1966, "all of the functions, powers and duties of the existing State Highway Department and the State Highway Commissioner . . . are hereby transferred to and vested in the Department of Transportation established hereunder.")

Plaintiff additionally argues he is entitled to a reversal of the grant of summary judgment because the 2000 closure of Florida Grove Street's access to Smith Street constitutes a "redesign" of Smith Street for which defendants failed to produce evidence of the requisite "exercise [of] discretionary authority to give such approval" for the closure of the median at that location. Even assuming that the closure of access to Smith Street at Florida Grove Street was without the requisite advance approval that triggers design immunity, there is no evidence in the record that its closure was a proximate cause of plaintiff's accident, which occurred further west on Smith Street at its intersection with Highland Avenue.

In his report, plaintiff's expert opined "with a reasonable degree of engineering certainty," the dangerous conditions that resulted in the subject accident included the fact that: (1) "Highland Avenue [had] limited visibility for [a] motorist traveling west on Smith Street"; (2) "[t]he reaction time for a motorist traveling at 50 MPH . . . when first sighting the Highland Avenue intersection from about a distance of 90 feet would be 1.2 seconds, too short a time to provide for an adequate safety margin[]"; (3) "[a] vehicle turning left from Highland Avenue into Smith Street had to cross three lanes of traffic traveling a 50 MPH on a 5.5% incline[]"; (4) "[t]he Township of Woodbridge . . . should have installed and maintained advance warning signs on Smith Street prior to Highland Avenue to give adequate warning to motorists [that] were approaching a blind intersection[]"; (5) "[t]he Township of Woodbridge . . . had a duty to provide emergency signals, signs, markings or other devices if such devices were necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care." Nowhere in his expert report does plaintiff's expert opine that the closure of access to Smith Street at Florida Grove Street had any causal connection to plaintiff's accident. The arguments advanced in plaintiff's brief to the contrary are purely speculative.

Nor does the October 27, 2003 letter from the Township's Chief of Police (Chief) requesting installation of a traffic signal at the intersection of Smith Street and Highland Avenue "to regulate traffic at this hazardous intersection" provide a basis for imposition of liability. First, the Chief addressed how the closure increased the time it took motorists to reach the nearby Rosiette Homes. He explained that in order to "eventually arrive" there, "[v]ehicles traveling east on Smith Street . . . must make a left turn onto Highland Avenue northbound and travel the entire length of Highland Avenue." Second, the Chief pointed out that the intersection of Smith Street and Highland Avenue "is located at a hill crest[,]" requiring "[v]ehicles attempting to make a left turn" onto Highland Avenue to cross over "three westbound lanes of Smith Street[,] a roadway with a fifty-mile-per-hour speed limit.

There is no dispute that plaintiff's accident did not involve an attempted left turn from Smith Street onto Highland. Rather, the accident allegedly occurred when a vehicle operated by defendant Geneva Halstead entered into the westbound lane of Smith Street from Highland Avenue, which was controlled by a stop sign. As the Halstead vehicle crossed over the westbound lanes of Smith Street, with the apparent intent to turn left onto the eastbound lane of Smith Street, her vehicle collided with plaintiff, a motorcyclist, who was proceeding westbound on Smith Street. Moreover, accepting that the absence of a traffic signal or warning signs created a dangerous condition, the fact that the intersection, as designed, was approved in advance by the Commissioner, without provision for a traffic signal, provides complete immunity to defendants, irrespective of whether a dangerous condition of the intersection subsequently arose. Costa, supra, 83 N.J. at 53.

Finally, although the trial court based its decision upon plan and design immunity, we agree that any claim that defendants failed to install warning signs on Smith Street in advance of the approach to Highland Avenue or to install a traffic signal at that intersection is also covered by the immunity provisions set forth under N.J.S.A. 59:4-5. Under this section, "[n]either a public entity nor a public employee is liable under this [Act] for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices."

Affirmed.

Plaintiff settled his claim against defendant Geneva Halstead prior to filing his complaint against the County of Middlesex and Township of Woodbridge.

Defendants County of Middlesex and Township of Woodbridge obtained leave to file a third-party complaint against "former" defendant Geneva Halstead, "seeking indemnity and contribution if said defendants should be found liable to plaintiff."

Third-party defendant Geneva Halstead was granted summary judgment on the condition that if the matter proceeded to trial, third-party plaintiffs would be permitted to argue "only the liability of said third[-]party defendant for plaintiff's injuries, and not the damages, and that said third[-]party defendant's name would appear on the verdict sheet for the fact finder's apportionment of liability."

(continued)

(continued)

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A-0738-07T3

November 17, 2008