FRANK ASPER v. STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5780-06T25780-06T2

FRANK ASPER,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

DEPARTMENT OF TRANSPORTATION,

Defendant-Respondent.

____________________________________________________________

 

Argued September 23, 2008 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No.

L-5416-05.

Ara Richard Avrigian argued the cause for

appellant (Saltz Mongeluzzi Barrett &

Bendesky, P.C., attorneys; Mr. Avrigian,

on the brief).

Karen L. Jordan, Deputy Attorney General,

argued the cause for respondent (Anne

Milgram, Attorney General, attorney; Lewis

A. Scheindlin, Assistant Attorney General,

of counsel; Ms. Jordan, on the brief).

PER CURIAM

This case involves a one-car accident that occurred while plaintiff Frank Asper was traveling northbound on Interstate 295 (I-295) in the area of Milepost 31.8, in Cherry Hill Township. It was raining at the time of the accident, and plaintiff's vehicle, a 2002 Honda, "collided with the median barrier" after it "began to hydroplane." Plaintiff sued the State of New Jersey, Department of Transportation (DOT), claiming that the highway had not been properly maintained and that the accumulation of rainwater on the roadway surface, which was "uneven and significantly rutted," caused the accident. Plaintiff also alleged that the State's failure to provide emergency warning signals at the site of the accident, such as a "slippery when wet" sign, contributed to the happening of the accident.

Plaintiff appeals from an order entered on June 8, 2007, granting the DOT's motion for summary judgment. The trial court reasoned that "the reconstruction and rehabilitation of the roadway, as well as the placement of warning signs are matters that require Governmental discretion and decision making which are subject to the immunity under the Tort Claims Act."

On appeal, plaintiff presents the following arguments:

POINT I

THE TRIAL JUDGE'S CONSIDERATION OF THE CERTIFICATION OF ROBERT SAUBER PRODUCED IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT CONSTITUTES REVERSIBLE ERROR AND A MANIFEST INJUSTICE.

POINT II

THE TRIAL COURT'S FINDING THAT DEFENDANT IS IMMUNE FROM LIABILITY FOR FAILING TO REMEDY THE DANGEROUS CONDITION OF THE HIGHWAY CONSTITUTES REVERSIBLE ERROR AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT REGARDING DEFENDANT'S IMMUNITY DEFENSE.

A. PUBLIC ENTITY LIABILITY.

B. IMMUNITY.

POINT III

THE TRIAL JUDGE'S FINDING THAT THE DEFENDANT IS IMMUNE FROM LIABILITY FOR FAILING TO WARN OF A KNOWN DANGEROUS CONDITION CONSTITUTES REVERSIBLE ERROR AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT REGARDING DEFENDANT'S LIABILITY PURSUANT TO N.J.S.A. 59:4-4.

After reviewing these contentions in light of the record and the applicable law, we affirm.

Plaintiff initially contends that the trial court erred in considering the certification of Robert Sauber because a portion of his certification referred to "defendant's pavement engineering lists and corresponding data," which the DOT was unwilling to provide "based upon claims of privilege and confidentiality." We agree that it was improper for Sauber to refer to material that the DOT was unwilling to disclose in discovery. See Coyle v. Estate of Simon, 247 N.J. Super. 277, 282 (App. Div. 1991) (stating that when a party expects to use a privileged communication as evidence, "[t]he privilege is thereby lost, and the communication must be disclosed in discovery"). Nevertheless, most of the information contained in Sauber's certification was not objectionable, and it appears that his limited reference to the priority number assigned to a reconstruction and resurfacing project that included the northbound segment of I-295 in the vicinity of Milepost 31.8 may have been prompted by a report prepared by plaintiff's expert, stating that the roadway had been placed on the DOT "pavement management priority list" in 1995:

The condition of I-295 was known to be in disrepair, as rutting was noted by Mr. Kingsland and reported to his supervisor in December, 2001. As early as 1995, the New Jersey Department of Transportation Regional Operations, Pavement Management Priority List indicated that this section was identified as a priority roadway for pavement condition. It was given priority 89 at Milepost 31.8 over 9 years prior to the Asper accident.

In any event, "[w]e review a grant of summary judgment de novo, using the same standard that applied in the trial court[,]" C.W. v. Cooper Health System, 388 N.J. Super. 42, 57 (App. Div. 2006), and we are satisfied that the competent evidential materials, when viewed in a light most favorable to plaintiff, are "so one-sided" that defendant is entitled to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

In his second point, plaintiff argues that no high-level discretionary decisions were ever made by the DOT to evaluate or remedy the dangerous condition of the highway because the high-level officials at the DOT "were completely unaware of this hazardous condition." In addition, plaintiff claims that regional DOT personnel, "who were aware of the hazardous condition made no request that the accident location be resurfaced in connection with the existing project only two tenths of a mile away and that there was never any request for an emergency or temporary project to alleviate the hazard." In contrast, the DOT contends "the governing statutes and undisputed evidence on the summary judgment motion show that there was a plan for addressing areas of pavement that are worn and that the plan included the accident location." Additionally, the DOT claims that its judgment in balancing limited pavement funding with pavement maintenance needs is entitled to immunity under N.J.S.A. 59:2-3, which provides four separate bases for public-entity immunity:

a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity;

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;

c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.

[N.J.S.A. 59:2-3.]

The repair and rehabilitation of interstate highways does not occur in a haphazard fashion. To obtain federal funding, each state must "conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations," and must "assign priorities for the correction of such locations . . . and establish and implement a schedule of projects for their improvement." 23 U.S.C.A. 152. In addition, the Commissioner of Transportation must "evaluate roadway pavements on the State highway system and assign numerical ratings to roads for maintenance and repair similar to any nationally recognized method." N.J.S.A. 27:1B-21.23. The DOT Commissioner is also required to "issue a report to the Governor and the Legislature at the end of each fiscal year containing the numerical ranking of pavements for roads needing maintenance and repair." N.J.S.A. 27:1B-21.24.

In the present matter, a DOT consultant completed a deficiency/constructability analysis for a segment of I-295 from Milepost 24 to Milepost 32.4 in August 2002. The analysis confirmed that the pavement was in need of "rehabilitation or reconstruction," and it stated that after the design process was completed, construction could "be expected to follow immediately, dependent upon available funding, with an estimated 1-year duration." Based in part on this report, it was determined that the uneven roadway surface at the location of plaintiff's accident would be repaired as part of a major resurfacing and reconstruction project, which would be completed in segments, between Milepost 15.3 and Milepost 32.4.

The trial court found that the DOT's decision was entitled to immunity, and, in our view, the matter was correctly decided. See Costa v. Josey, 83 N.J. 49, 55 (1980) (stating that the exercise of discretion "in N.J.S.A. 59:2-3(a) refers to actual, high-level policymaking decisions involving the balancing of competing considerations," and noting that "[s]uch decisions have been traditionally entrusted to coordinate branches of government, and courts, utilizing standard tort principles, are ill-equipped to interfere with them"). Moreover, in light of the competing demands for limited resources, we are satisfied that the DOT's discretionary determination was "not 'palpably unreasonable' as a matter of law under N.J.S.A. 59:2-3(d)." Mitchell v. City of Trenton, 163 N.J. Super. 287, 291-92 (App. Div. 1978).

Plaintiff also contends the order granting summary judgment should be reversed because "the accident location required a specific, targeted and unique emergency sign or device warning of the specific and emergent hazard." We cannot agree. At his deposition, plaintiff acknowledged that he regularly traveled on I-295 to go to his office, and he had "seen the ruts before." When plaintiff was asked to describe the ruts, he said they were like "channels" that were caused by cars and trucks. Plaintiff testified the ruts "had filled up like a puddle" and when his car struck the water, it "seemed to be hydroplaning" before "hitting the guardrail." Under these circumstances, the accumulation of rainwater on the uneven surface of the highway was not "sudden, unexpected, or emergent" and "could not be regarded as an emergency that would necessitate the placement of warning signals." Weiss v. N.J. Transit, 128 N.J. 376, 384 (1992).

 
Affirmed.

In his certification, Robert Sauber states that a "Blue Ribbon Commission Report" sent to the Governor in November 2003, showed that the DOT needed one billion dollars a year for ten years for roadway preservation, but in fiscal year 2003, the State only received ninety-six million dollars, "or less than 10 cents on the dollar," from the federal government for pavement projects. Sauber also certified that in fiscal year 2004, "it was estimated that 24% of the state highway system pavement was deficient." Therefore, the DOT utilizes an engineering formula to evaluate and prioritize competing repair and rehabilitation projects.

(continued)

(continued)

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A-5780-06T2

September 3, 2009