KATHLEEN FITZGERALD v. COUNTY OF SUSSEX

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1503-07T31503-07T3

KATHLEEN FITZGERALD,

Plaintiff-Appellant,

v.

COUNTY OF SUSSEX and STATE OF

NEW JERSEY,

Defendants-Respondents,

and

BOROUGH OF HOPATCONG,

Defendant.

___________________________________

 

Argued November 6, 2008 - Decided:

Before Judges Stern, Waugh and Newman.

On appeal from Superior Court of New Jersey, Law Division, Civil Part, Sussex County, Docket No. L-268-05.

Ira E. Weiner argued the cause for the appellant.

Peter J. Lamont argued the cause for the respondent Sussex County (McCarthy & Jennerich, attorneys; Mr. Lamont, on the brief).

Rahat N. Babar, Deputy Attorney General, argued the cause for respondent State of New Jersey (Anne Milgram, Attorney General, attorney; Melissa H. Raksa, Deputy Attorney General, of counsel; Mr. Babar, on the brief).

PER CURIAM

Plaintiff Kathleen Fitzgerald appeals the dismissal by summary judgment of her personal injury action against the County of Sussex (County). We reverse and remand for further proceedings.

I

On the morning of May 30, 2004, Fitzgerald was riding her Harley Davidson motorcycle northbound on Maxim Drive in the Borough of Hopatcong, Sussex County. After Fitzgerald entered a curve in the road, she collided with the outside guard rail. She "was ejected off the seat and over the handlebars," sustaining injuries.

Maxim Drive, also known as County Road 607, was built by the County in 1929. At the time of the accident, it had substantially the same configuration as when originally constructed. The curve at issue in this case is a 135-degree curve. It is marked with two signs, one on each side of the road, indicating a left turn at 90 degrees. The sign posts also contain 10 miles-per-hour speed signs.

For the purposes of this appeal, the gravamen of Fitzgerald's May 2005 complaint against the County is that the signage installed by the County, specifically the two 90-degree left turn signs, enhanced an already dangerous condition because they were misleading with respect to the nature of the turn involved. In support of her position, Fitzgerald points to accident reports concerning the same location for the period between 1999 and 2004, which reflects twenty-two incidents within the five-year time frame, and the report of an expert witness.

After discovery was completed, the County filed a motion for summary judgment. The motion judge, in an oral opinion, determined that the County was entitled to immunity pursuant to several provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. He relied upon the following relevant findings of fact, based upon his review of the motion papers:

This road Maxim Drive, at the place where the accident occurred is, I think, properly described as a very sharp, almost a hairpin type turn. I think it was agreed in our discussion this morning that as you're proceeding northbound on Maxim Drive, you come to the point in question and the roadway is a 135 degree turn to the left. In other words, as you come up into the so-called hairpin turn, and as you approach it and enter it, you will need to first go to the left and then continue around to the point to where you've made a turn of greater than 90 degrees. In other words, not just your standard left-hand turn but rather a turn ultimately, through the course of the road, of 135 degrees.

It is not a complete U-turn type situation. In other words, a U-turn would be 180 and would be described as a road where you come into the turn and you continue around and when you're done, you're going in exactly the opposite direction from which you started. Here, it is not a 180 degree hairpin turn, but it is an abrupt, and I think properly described as a hairpin type turn, and it goes around in an arc and degree of 135 degrees.

. . . .

At issue in this case is the, in particular, the signage that is attendant to the road. And let me place on the record what the relevant directional and speed limit signs were at the time of the accident.

It appears undisputed from the record that as the road approaches the curve, as the plaintiff did in this case coming northbound, you see two important signs to this litigation on each side of the road, and they are a short distance from where the road turns sharply. But what they indicate, and there's one on each side of the road, in other words there's one on the right-hand side outside of the right-hand side northbound lane of travel. There is also one facing the northbound driver on the other side of the road. So there's, in effect, sort of a gateway established by these signs. And what the signs are are signs that indicate that the speed limit is 10 miles per hour and that the road is turning to the left.

The left-hand sign that I'm referring to basically is an arrow showing a 90 degree perpendicular turn. And right below each of those signs, one on each side of the roadway, is on the same pole, an indication that the speed limit is 10 miles per hour.

As the County pointed out in its argument this morning in addition to that signage, through the course of the turn, there are signs called chevrons, basically sort of arrows without the straight part of the arrow but chevrons that are indicating that the traveler on the road should turn to the left. We see these pretty frequently on the roads and they're an indicator of where you're headed as you're traveling on the road. So that is the configuration of the road.

As far as the signage I'm referring to, it appears from the exhibits to the movant's motion here, that as I mentioned before, the road was initially built in 1929. It further indicates that back in 1965, Sussex County requested and the New Jersey Department of Transportation performed a traffic engineering assessment to establish speed limits for the roadway. This generated a report dated January 18th, 1965. This report indicated a speed limit of 15 miles per hour for the curve of Maxim Drive and in fact the County passed a resolution approving this speed limit in 1966.

A second event in the history of the speed limit and signage at this portion of the road occurred in 1977. At that time, the Department of Transportation did a signage review on Maxim Drive and generated a report dated September 28th, 1977. This report recommended removal of the 15 miles per hour signs and replacement with 10 miles per hour signs, and this was done. So after 1977, the 15 miles per hour speed limit and signage was replaced with 10 miles an hour signage.

After setting out the parties' arguments, the motion judge reached the following conclusions of law:

I'm going to start with a portion of the analysis that, to me, jumps out fairly strongly and that is the question of whether there is a dangerous condition. And I think there is an element of immunity established by the facts of our case when you look at N.J.S.A. 59:4-2.

That section indicates that a public entity can be liable for an injury caused by a condition of its property if a plaintiff establishes that a property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, and that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.

Now that section goes on to say nothing in this section should be construed to -- construed to impose liability on a public entity for a dangerous condition of a public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

In this situation, I am strongly influenced by the presence of the 10 miles an hour speed limit signs. . . .

. . . [T]he action taken by the County to protect against this situation was to post signs that reduce the speed limit to 10 miles an hour approaching the curve. I find this to be not at all an unreasonable approach and not palpably unreasonable, but highly sensible.

When you tell somebody driving on a road that you need to go 10 miles an hour, you're telling them that they have to approach that area of the road very slowly and with extreme caution.

Ten miles an hour is a very slow amount of speed to enter into any traffic situation. And by posting those signs, one on each side of the road telling drivers you got to go extremely slow through this curve, I think the County took appropriate action to protect motorists from the inherent dangers in a hairpin or sharp curve and there are going to be times in which we have sharp curves. But I think that is not palpably unreasonable and therefore under the paragraph of 59:4-2, assuming arguendo that there is a dangerous condition, the action I find that the entity took to protect against the condition was not palpably unreasonable.

A dangerous condition is defined in N.J.S.A. 59:4-1 which states dangerous condition means 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.

Due care in this context means following the speed limit. And I think that someone using due care and traveling through the curve at 10 miles an hour would have no problem and it certainly, in my view, would eliminate any danger in the curve. So I believe that to a substantial degree, the placement of those two emphatic indicators of the proper speed to navigate this curve ultimately confers immunity upon the County because of the due care requirements and just in my view the inherent reasonableness of that approach.

Now that also relates to the plaintiff's claim that the left-hand turn signs are misleading and actionable. It appears to me from the record and then there was testimony in the deposition attached to the submissions, that given the configuration of the road, either the left-hand turn or left-hand -- yeah, left-hand turn W-1 sign, or the hairpin or 180 degree turn W1-11 sign as authorized by the Department of Transportation, it seems that either of those signs could reasonably have been used in conjunction with the speed limit signs.

Neither of them would have been exactly accurate because, as we've discussed, this isn't a 90 degree curve or a 180 degree curve. It's a 135 degree curve. So I think that either of the signs could have been used to indicate to a motorist that there is a turn coming up to the left.

That, in conjunction with the chevrons and the 10 miles an hour signs, I think, allow someone when operating with the due care, to safely navigate this road as a matter of law. The fact that either the W1-1 sign, the 90 degree turn, or the W1-11 sign, the 180 degree turn, are both inexact, I don't think is critical here.

The point is that the County, as established by the record, went back several times with engineering studies, continued to lower the speed limit, at one point from -- that I've already discussed from 15 miles an hour down to 10, and that it seems to me, a motorist using due care with the signage given that it may not be an exact indication of the curving, will be able to safely navigate that turn. . . .

. . . .

I also believe that the County of Sussex is immune from this claim pursuant to N.J.S.A. 59:4-6 Plan or Design Immunity. . . .

. . . .

Pursuant to N.J.S.A. 59:2-3(a) and (b), there are immunities because a public entity is not liable for an injury resulting from the exercise of judgment or discretion. And in Subsection (b), a public entity is not liable for legislative or judicial action or inaction or administrative action or inaction of a legislative or judicial nature. There have been exercises of judgment and discretion vis- -vis this roadway, and they have in my view been reasonable and sensible.

I've already talked about the speed limit that was posted here. That is an appropriate exercise of discretion. Regarding the turning signs, it appears from the record that the configuration on the road that either a left-hand turn sign or the -- and that would be the W1-1 or the U-turn sign would be the W1-11 sign, could have been utilized in this situation. The irony is that one or the other, in effect, has to be selected.

The curve is midpoint between 90 degrees and 180 degrees so it is a little bit of a scenario in which discretion needs to be exercised. And you could be damned if you do and damned if you don't because describing the curve by sign in advance as a 90 degree curve is not exactly or not precisely accurate, nor is describing it as a 180 curve exactly accurate. But I think there has to be an exercise of judgment, and discretion in that scenario, and I think ultimately in combination with the lowered speed limit and the chevrons, a sign indicating a left-hand turn or a left-hand curve is reasonable and sensible and as I said earlier, is an appropriate step to allow a person proceeding with due care to avoid trouble through this curve.

Based upon that, I find that ultimately the selection of either a W1-1 sign or a W1-11 sign could be appropriate as an exercise of judgment and discretion and that the County is entitled to immunity under this provision also.

On appeal, Fitzgerald argues that the trial court made "an error of law" by granting summary judgment because there was sufficient evidence to raise a jury question as to whether the signage enhanced an already dangerous condition and whether the County's actions were "palpably unreasonable."

II

An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. 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., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

A

The Tort Claims 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).

We first address some of the more specific types of immunities at issue in this case. Fitzgerald has conceded, as she must, that any claim based upon the configuration of the road itself is barred by the provisions of N.J.S.A. 59:4-6, which grants design immunity to public entities. Consequently, she does not challenge the motion judge's determination on that issue.

We reject the County's argument that it is entitled to immunity under N.J.S.A. 59:2-3(b), inasmuch as there was no quasi-legislative or quasi-judicial decision making in this case. N.J.S.A. 59:4-5, which provides immunity with respect to the traffic signs, is not applicable because it only applies to the "failure to provide" signals and signs, an issue not involved in this case.

Immunity under N.J.S.A. 59:2-3(a), which was applied by the motion judge, is not a viable source of immunity in this case. That statute grants immunity with respect to an injury resulting from "the exercise of judgment or discretion vested in the entity." The Supreme Court has held that such immunity is applicable to "actual, high-level policy making decisions" or "basic policy determinations," i.e., the planning stages of a governmental endeavor, but not the operational stages. 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)("A discretionary act has been described as one involving planning and distinct from ministerial act, which pertains merely to operations.")

In Costa, supra, the Supreme Court, using road maintenance as an example, concluded that the decision to undertake such a program would be a policy decision subject to immunity, while decisions on how to implement the plan would be operational and not subject to immunity pursuant to N.J.S.A. 59:2-3(a). 83 N.J. at 59. As the Supreme Court observed in Costa, "a literal interpretation of the term 'discretion' would effectively exempt from the operation of the Tort Claims Act all government action unless it resulted from mere inadvertence," because "[a]lmost all official conduct, no matter how ministerial, involves the exercise of some judgment and decisionmaking." Id. at 60 (emphasis in original). Thus, "[t]o construe subsection (a) that broadly [] would in effect eliminate most of the liability which the Legislature clearly intended to permit when it enacted the statute." Ibid.

The record before us provides no basis for a determination that the decision to use the 90-degree left turn signs at issue is subject to N.J.S.A. 59:2-3(a) immunity. It was clearly an operational decision and, as such, subject to the standards set forth in N.J.S.A. 59:4-2, discussed below. See Costa, supra, 83 N.J. at 55.

B

We turn now to the County's more general immunity against tort claims. In this case, Fitzgerald premises the County's liability on N.J.S.A. 59:4-2, which 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).]

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) (internal quotation marks omitted) (citation omitted).

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. (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).

If steps taken by a public entity to "protect against" a "dangerous condition" are at issue, the plaintiff must, pursuant to N.J.S.A. 59:4-2, prove that those steps, or the failure to take any, were "palpably unreasonable," a term that is not defined in the Act. In Kolitch, supra, 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).

[100 N.J. at 493.]

See also Muhammad v. N.J. Transit, 176 N.J. 185, 195-96 (2003) (applying the same standard).

C

With respect to immunity under N.J.S.A. 59:4-2, our analysis of the statute as applied to the facts in the record before us differs from that articulated by the motion judge. We believe that, giving Fitzgerald the required benefit of all favorable inferences from the facts in the record, she has made a prima facie case from which a rational jury could conclude that the County is liable under N.J.S.A. 59:4-2.

We believe that a rational jury could find that: (1) the 135-degree turn was a dangerous condition; (2) the County had actual notice of that dangerous condition, as evidenced by its concerns over the years in setting an appropriate speed limit and by virtue of the number of accidents that occurred at that location after the 90-degree left turn signs were installed; (3) the installation of the 90-degree turn signs made the condition more dangerous because they are misleading; and (4) the use of the 90-degree signs to protect against the dangerous curve was "palpably unreasonable." Although we agree with the motion judge that neither the 90-degree nor the 180-degree turn signs were exactly appropriate for the curve at issue, we believe that a rational jury could conclude that the 90-degree sign was so misleading as to the configuration of the roadway that its use was "palpably unreasonable."

As demonstrated by the pictures contained in Fitzgerald's appendix, the curve at issue is located in a densely wooded area. It appears that, as a driver or motorcyclist approaches the curve, it is not possible to visualize the continuation of the roadway after the curve. Consequently, as indicated in Fitzgerald's supplementary answers to interrogatories and in her expert's report, a driver or motorcyclist could reasonably rely on the 90-degree turn signs for the configuration of the curve and plan accordingly in entering the curve. Such a driver or motorcyclist apparently does not become aware that the curve is significantly sharper than 90-degrees until well into the curve, when it can be too late to compensate for the additional turning required.

While the motion judge was correct that, mathematically, the 90- and 180-degree signs were equally incorrect for a 135-degree turn, a rational jury could conclude that the 90-degree signs were, as a practical matter, more dangerous because they lead a driver or motorcyclist to believe that the curve was significantly less sharp than it really is. On the present record, we cannot conclude that no rational jury could reach that result. Of course, at trial, the jury would have to consider other factors, such as credibility, speed, and the overall configuration of the signage, in making its determination. We hold only that, under the reasoning of Brill, the decision must be made by a jury at trial and not a judge in the context of a motion for summary judgment.

III

In summary, we reverse the order entering summary judgment in favor of the County and remand for further proceedings consistent with this opinion.

Although the State of New Jersey had originally been a respondent in this appeal, counsel for Fitzgerald notified us at oral argument that the appeal was being withdrawn as to the State.

The signs used by the County are all approved signs in the U.S. Department of Transportation's Manual on Uniform Traffic Control Devices. The 90-degree left turn sign is W1-1. The 180-degree left turn sign, which Fitzgerald argues should have been used, is W1-11. There is apparently no sign for a turn or curve between 90 and 180 degrees.

Fitzgerald also named the State of New Jersey and the Borough of Hopatcong as defendants. The State and Borough were dismissed on motion by the Law Division.

Compare Polzo v. County of Essex, ___ N.J. ___, No. A-69-07, slip op. at 3 (Dec. 3, 2008) (addressing only the question of the sufficiency of proofs required for showing constructive notice).

If the County can demonstrate, however, that it relied on the State for the choice of the 90-degree left turn sign, it can then argue that the decision to do so was not "palpably unreasonable." See Black v. Borough of Atlantic Highlands, 263 N.J. Super. 445, 451 (App. Div. 1993).

(continued)

(continued)

19

A-1503-07T3

December 9, 2008