ANTHONY CONFORTI v. MARIUSZ KANTOROWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3013-09T2

ANTHONY CONFORTI and SUSAN CONFORTI, his wife,

Plaintiffs-Appellants,

v.

MARIUSZ KANTOROWSKI, COUNTY OF SOMERSET, and TOWNSHIP OF BRANCHBURG,

Defendants,

and

STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION,

Defendant-Respondent.

________________________________

MARIUSZ KANTOROWSKI,

Plaintiff,

v.

ANTHONY CONFORTI and STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION,

Defendants.

________________________________

April 15, 2011

Submitted March 28, 2011 - Decided

Before Judges A.A. Rodr guez and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1297-05 and L-1362-05.

Shamy & Shamy, LLC, attorneys for appellants (George J. Shamy, Jr., and James R. Shamy, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Gregory A. Spellmeyer, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiffs Anthony Conforti and Susan Conforti, his wife, appeal from a January 9, 2009, order granting summary judgment in favor of defendant State of New Jersey, Department of Transportation (the DOT). We affirm.

Before addressing the merits of this appeal, we address its procedural posture. Plaintiffs urged that the 2009 order was rendered final by virtue of a 2010 order dismissing their com plaint against defendant Mariusz Kantorowski. The 2010 order recited that plaintiffs intended to appeal the 2009 order and then provided that, should it "be reversed and remanded, . . . the Judgment of No Cause of Action against . . . Kantorowski[] will be vacated and the complaint reinstated so that the matter will proceed to trial against both [the DOT and Kantorowski]."

Rule 2:2-3(a) allows parties to appeal as of right from final judgments and orders. To be eligible for appeal as a final judgment, the order must be final as to all parties and all issues. N.J. Sch. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308 (App. Div. 2010); Grow Co. v. Chokshi, 403 N.J. Super. 443, 457-58 (App. Div. 2008). Where a dismissal without preju dice of a party contemplates further action and is entered for the purpose of rendering an otherwise interlocutory order appealable, such a dismissal precludes finality and hence the appealability of an earlier order. Richard A. Pulaski Constr. Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 462-63 n.5 (2008); Grow Co., supra, 403 N.J. Super. at 460-61; Ruscki v. City of Bayonne, 356 N.J. Super. 166, 168-69 (App. Div. 2002).

This rule exists because the review of interlocutory orders is committed to our sound discretion, in the interest of jus tice, pursuant to Rule 2:2-4. It is not a discretion allowed to the trial courts. We employ a stringent standard to our review of motions for leave to appeal. See Brundage v. Estate of Carambio, 195 N.J. 575, 599 (2008) (noting that the stringent standard for grant of leave to appeal is based on the "general policy against piecemeal review of trial-level proceedings" (citation omitted)). This power is "highly discretionary" and "exercised only sparingly." State v. Reldan, 100 N.J. 187, 205 (1985) (citations omitted). Thus, plaintiffs had no right to appeal the 2009 order, and the judge ought not to have entered the order submitted by them. Lest the DOT avoid criticism, we note that we have commented that motions to dismiss improvi dently filed appeals should be made by a respondent prior to the filing of a responding brief. Gloucester City Bd. of Educ. v. Am. Arbitration Ass'n, 333 N.J. Super. 511, 519-20 (App. Div. 2000) ("[W]hen an appeal [from an interlocutory order] has been improvidently filed, a respondent has a responsibility to the court to file a timely motion to dismiss the appeal."). Although this appeal by all rights ought to be dismissed by us, we elect in this instance to grant leave to appeal nunc pro tunc and will decide the matter on the merits.

Plaintiff Anthony Conforti (Anthony) was driving on Old York Road in Branchburg at the intersection with Route 202 on September 19, 2003. He came to a halt at the traffic signal, intending to turn left. The traffic signal appeared to be red, although it was actually green, because it had been blown "out of focus" as a result of high winds during Hurricane Isabel ear lier that morning. When the light appeared to turn green for Anthony, he began to proceed through the intersection, making a left-hand turn to travel north on Route 202. Meanwhile, Kantorowski, who was traveling south on Route 202, observed a dif ferent traffic signal at the intersection indicating green for his direction of travel. The vehicles collided, and Anthony suffered a serious injury to his knee.

Plaintiffs suedKantorowski, theDOT, the County of Somerset, and the Township of Branchburg. In their complaint, they alleged that the DOT "was responsible for the maintenance, repair, road control signage and road control signals and devices on State Highway Route 202." They asserted that the DOT, through its officers, agents, and employees, "negligently, carelessly and recklessly designed, constructed and maintained said roadway and traffic control devices," causing defects to the traffic control light and the ensuing accident.

After discovery, the DOT moved for summary judgment. There was no dispute that the traffic light had in fact been turned as a result of the high winds. It was also undisputed that the DOT's first and only notification that the traffic light was turned due to the high winds of Hurricane Isabel was received twenty minutes after the accident happened. The intersection is controlled by six fixtures, including fixtures 1, 7 and 11, which became twisted by the high winds. Plaintiffs' expert opined that the wind force actually moved light fixtures 1, 7, and 11 out of alignment. The DOT argued that it was entitled to weather immunity pursuant to N.J.S.A. 59:4-7. It also urged that plaintiffs could not establish all of the elements of a dangerous condition within the meaning of N.J.S.A. 59:4-2.

Plaintiffs opposed the motion, arguing that weather immu nity did not protect the DOT from liability in the case. They also urged that they had satisfied each of the requirements of N.J.S.A. 59:4-2. They asserted that weather immunity did not apply because Anthony's injuries were not caused solely by the effect of the weather on the traffic signals. As a result, they contended that they should have the opportunity at trial to dem onstrate that negligent maintenance in addition to the weather caused the dangerous condition leading to the accident.

As to N.J.S.A. 59:4-2, plaintiffs argued that palpable unreasonableness was a question of fact to be determined only by a jury and that a public entity can also be liable under N.J.S.A. 59:4-4 for failure to provide warnings of emergent and dangerous conditions on roads and highways. They pointed to the fact that the DOT maintenance man who testified at a deposition admitted that other traffic control fixtures at the same inter section had loosened or slipped over time because of loose mechanical apparatus, causing them to be negatively affected by weather phenomena. They urged that this constituted actual notice of a dangerous condition at the intersection.

In ruling on the summary judgment motion, Judge Allison E. Accurso carefully established the undisputed facts involved in the case. It was agreed that the strong winds from Hurricane Isabel moved light fixtures 1, 7, and 11 and that the light fix tures them selves were cycling properly. It was also undisputed that the DOT had prior problems with lights fixtures 2 and 4, which were lighter-weight fixtures and had a tendency to be twisted in the wind. Those light fixtures were not involved in this accident and had ultimately been repaired by replacing the brackets with "Astro" brackets.

It was further undisputed that there were no reports of any prior problems with light fixtures 1, 7, and 11 being twisted in the wind until the date of Anthony's accident. Furthermore, it was undisputed that the DOT regularly maintained the light fix tures on its public highways and had maintained light fixtures 1, 7, and 11 thirty days prior to Anthony's accident and then every four months before that. It was also undisputed that between the date of Anthony's accident and the deposition of the DOT maintenance man nearly four years later that there had been no subsequent problems with the twisting of light fixtures 1, 7, and 11.

It was further established during the deposition of the DOT maintenance man that the piece of the light fixture that moved was the arm extending over the roadway, which rotated on the pole. The arm was attached to the pole by a device called a "back clamp" and was secured with circular clamps. Those clamps were fastened to the pole with two or three bolts that were "secured down to create enough pressure" to fixate the clamp against the pole.

When the maintenance man arrived at the scene on the day of the accident, he observed that the arm had swung on the pole. He realigned the arm and secured the clamps to the pole with a pair of wrenches to tighten the nuts and the bolts. The arm was not easy to turn, but he was able to get it back into position. Although it was not usually a job one man could perform, he wanted to get out of the traffic and was able to do it himself. He did so without loosening the back clamps. Then he went to the back clamps and tightened them as much as he could without damaging them. The back clamps had lock washers and nuts at the end of the bolts. They were all in position, and the circular clamp had not slipped down the vertical pole. Three or four times a year, the DOT maintenance man found that bad storms had caused back clamps to slip. This had happened only to fixtures 2 and 4 at this intersection.

The judge found that there was no evidence in the record that light fixtures 1, 7, and 11 were not properly maintained. She based this on the State inspection reports from December 19, 2001, through August 20, 2003. Plaintiffs had submitted nothing to rebut those records. The judge noted that plaintiffs' expert did not contend that the State failed to maintain light fixtures 1, 7, and 11. Plaintiffs urged that the State had constructive notice of problems with the light fixtures at the intersection as a result of its maintenance of light fixtures 2 and 4 and thus was on notice of potential problems with light fixtures 1, 7, and 11. The judge, however, was not persuaded by this argument and reached the following conclusions:

This is a case that's clearly the issue is weather immunity. [N.J.S.A.] 59:2-1(a) states: Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or public employer or any other per son. Notwithstanding this emphasis on immu nity, the burden of proof in establishing the applicability of the immunity rests with the public entity. That's [Bligen v. Jersey City Housing Authority, 131 N.J. 124 (1993),] and [Manna v. State, 129 N.J. 341 (1992)].

Here, the State has the burden of establishing weather immunity applies.

This case is not, as [plaintiffs] would contend, a weather-plus case. There is no other protagonist other than the high winds of Hurricane Isabel on the morning of the accident. There is no proof at all in this record that there was anything wrong with the bracket that secured this light fixture. It had been inspected a month before the accident on a regular schedule. It had been inspected four months before that, again on a regular schedule.

The deposition of the mechanic who inspected that intersection and responded to the accident on the day in question found that there was nothing here other than the high winds on that day. There had never been any prior problem with fixture[s] 1, 7 and 11, the fixture[s] that everyone agrees [are] at issue here, and from the time of the accident in 2003 until July of 2007, when Mr. Peters'[s] deposition was taken, there had never been any problems since.

There is nothing to suggest that the State had failed to maintain the brackets in question. [Manna], which is the case on which [plaintiffs] rely, they're actually weather immunity did not apply because the Supreme Court found that there was a pro tagonist partner, such as the vegetation in a silt-filled ditch in [Meta v. Township of Cherry Hill, 152 N.J. Super. 228 (App. Div.), certif. denied, 75 N.J. 587 (1977)], and the negligently constructed driveway in [McGowan v. Borough of Eatontown, 151 N.J. Super. 440 (App. Div. 1977)]. That's not this case.

[Manna] also was a case where weather immunity didn't apply because that's the Aberdeen bridge on Route 35, I believe is that case, and the plaintiff argued there that the State's failure to maintain the bridge was a contributory cause akin to the potential contributory cause as noted in [Meta] and [McGowan], and the Supreme Court held in [Manna] that the trial court could not have properly concluded that the State had met its burden of proof in establishing the applicability of the weather immunity and reversing the trial court there.

The poor condition of the bridge's sur face could have contributed to the natural danger presented by the wet road surface. Unlike the situation in [Pico v. State, 116 N.J. 55 (1989)], a jury could infer that natural conditions were not the sole cause of the accident.

And it's because the plaintiff in [Manna] had presented an expert that said the wearing of the metal grid on the Aber deen bridge could retain a water film. It's, actually, the bridge had worn down over time, could retain a water film and allow hydroplaning, suggesting that the bridge structure rendered the rainfall more dangerous than it would be naturally.

Like the fill ditch in [Meta] and the driveway in [McGowan], the jury could infer that the worn condition of the bridge was a protagonist partner in causing the accident. If the condition of the bridge repeatedly turned a naturally benign weather condition, such as rain, into a treacherous condition, then the rain cannot be considered the sole cause of the accident.

Looking at these facts in a light most favorable to [plaintiffs], I cannot conclude that this case and that the status of that bracket there's nothing in the record that would allow me to conclude that that bracket was worn in advance of the design of that we should stay out of design, because that's not this has not been a design case. But that the maintenance of that bracket in any way contributed, along with the high winds that day, to this accident.

Again, looking at the case in a light most favorable to plaintiff[s] and I think that plaintiffs' counsel has done has given his all in attempting to convince me other wise, this is a sole this accident was solely caused by high winds that morning. There's nothing else in the record to allow me to conclude anything else, and I con clude, thus, that the case is not like [Manna] or [Meta], but, in fact, falls squarely within the weather immunity provisions of the [T]ort [C]laims [A]ct.

Plaintiffs renew the argument that they made before the judge, urging that weather immunity does not apply because weather was not the sole cause of the accident. Further, the State had notice of the propensity of traffic signals at that particular intersection to be blown "out of focus," thereby causing the dangerous and hazardous condition to exist. We dis agree. After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the issues presented by plaintiffs are without sufficient merit to warrant discussion in this opinion, Rule 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Accurso in her oral opinion delivered on January 9, 2009.