DONNA SCHACK v. CITY OF BAYONNE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4965-11T3

DONNA SCHACK, Administratrix

Ad Prosequendum of the ESTATE

OF BARBARA D. MACK,

Plaintiff-Respondent,

v.

CITY OF BAYONNE,

Defendant-Appellant.

March 8, 2013

Argued November 7, 2012 - Decided

Before Judges Fisher, Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4139-11.

Stacy L. Moore, Jr., argued the cause for appellant (Parker McCay P.A., attorneys; J. Brooks DiDonato, of counsel; Mr. Moore, on the briefs).

Christopher K. Koutsouris argued the cause for respondent (Dasti, Murphy, McGuckin, Ulaky, Cherkos & Connors, attorneys; George F. Murphy, Jr., of counsel; Mr. Koutsouris, on the brief).

PER CURIAM

By leave granted, defendant City of Bayonne (Bayonne or the City) appeals the April 27, 2012 order of the Law Division denying its motion for summary judgment dismissing the complaint filed by plaintiff Donna Schack, administratrix ad prosequendum of the Estate of Barbara D. Mack. For the reasons that follow, we reverse.

This litigation results from an accident which occurred on February 12, 2008, at 8:35 a.m., at the intersection of Avenue C and 23rd Street in Bayonne. Decedent Barbara D. Mack, while walking across Avenue C, was struck by a vehicle driven by Zezaf F. Girgis, who was making a left from 23rd Street.

It is undisputed that there were problems with the intersection prior to this accident. For this reason, it was one of several included by Bayonne on a "New Jersey Safe Routes to School Application." The submission, made in late 2006 or early 2007, sought funding for improvements to various crosswalks within the city limits. Bayonne was approved for funding in the amount of $300,000 pursuant to the "Department of Transportation Safe Routes to School Program for the Bayonne Safe Routes to School 2008, Phase One, Midtown Community School Infrastructure Project." The City thereafter submitted its plans for review by the Department of Transportation, but the money was not released. Plaintiff's expert opined in a lengthy report submitted in opposition to the application for summary judgment that the design of the intersection was outdated and poor, and did not meet current safety standards.

In deposition, Sally Overholser, Bayonne's crossing guard supervisor, testified that the intersection in question had been assigned a crossing guard until November 7, 2007, some three months before the accident. The crossing guard was removed from the intersection in part because one of two schools in the immediate area closed. Additionally, shortfalls in Bayonne's operating budget required reductions in the number of crossing guards the City employed overall. At least ten other crossing guards were removed during the relevant timeframe. Currently, the City employs twenty fewer crossing guards than it did in November 2007.

The trial judge denied the City's motion for summary judgment. In reviewing the grant or denial of summary judgment, we apply the same standard which governs the trial court under Rule 4:46-2(c). Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). Summary judgment is granted where the record demonstrates "no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Henry v. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010); Brill, supra, 142 N.J. at 540. Rulings on questions of law are not entitled to particular deference. Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In support of summary judgment, the City contended that it was immune from liability pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The City based its position on the specific protection afforded by N.J.S.A. 59:2-3(d), 4-5, and 5-4.

Bayonne relies first on N.J.S.A. 59:4-5, likening the removal of the crossing guard to a decision regarding traffic devices. See Ross v. Moore, 221 N.J. Super. 1, 7 (App. Div. 1987). The statute grants immunity for injuries "caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices." See N.J.S.A. 59:4-5. The use of the term "devices," however, may not have been intended to include crossing guards within its purview; we are not convinced this section applies. See Ryan v. Renny, 203 N.J. 37, 54 (2010) (when interpreting a statute, courts begin with its words and "ascribe[] to them their ordinary meaning.").

Questions about police staffing, the manner in which police officers are assigned, and how police equipment is allocated are also immune. See N.J.S.A. 59:5-4 (establishes immunity for "failure to provide police protection"). At argument before the trial judge, the City's attorney represented that Bayonne's crossing guards fell within the police department's control, however, the record we have does not disclose any additional facts on the subject, such as whether Bayonne's crossing guards are trained and supervised within the police department, or paid from the police department's budget. We therefore do not address the applicability of the statute.

But we agree with the City that N.J.S.A. 59:2-3(d) extends immunity entitling it to summary judgment. The removal of the crossing guard from the intersection is precisely the type of discretionary action taken by governing bodies which is not subject to second-guessing. See Morey v. Palmer, 232 N.J. Super. 144, 152 (App. Div. 1989). The statute provides:

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(d).]

Removal of the crossing guard was the product of a policy decision balancing budget concerns against personnel needs, similar to other questions regarding municipal employees. Judgments such as the one here are insulated from liability because they involve the "exercise of discretion . . . in the face of competing demands." Ibid.; see also Daniel v. State, Dept. of Transp., 239 N.J. Super. 563, 599 (App. Div. 1990) (the TCA provides "a limited immunity for the exercise of discretion when, in the face of competing demands, a public entity determines whether and how to apply resources already committed.").

A "discretionary act . . . calls for the exercise of personal deliberations and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on themin a way not specifically directed." Kolitch v. Lindedahl, 100 N.J.485, 495 (1985) (quoting Miree v. United States, 490 F. Supp. 768, 774 (N.D.Ga. 1980)). In Kolitch, for example, the plaintiffs claimed the posted speed limit was dangerously fast and that the State should have posted warnings about a dangerous curve in the roadway. Id.at 489-90, 496. Our Supreme Court found that "the posting of a sign is merely one form of acting on the decision to set a certain limit, a decision that is discretionary in nature and therefore entitled to immunity." Id.at 496. In similar fashion, the Court found that the failure to warn was a discretionary activity also entitled to immunity. Ibid. Once having made a discretionary decision, the implementation was also immune. Ibid. In like fashion here, unless plaintiff could establish that the decision was palpably unreasonable, the discretionary act of removing the crossing guard from the intersection is immune from liability.

Courts in other jurisdictions have made similar determinations that the assignment of crossing guards is a discretionary policy decision immune from liability. See, e.g., Jennings v. State, 566 P.2d 1304 (Alaska 1977) (decision on where to place crosswalks, crossing guards, and crossing signals near school was discretionary decision immune from liability); Vandewinckel v. Northport/East Northport Union Free Sch. Disct., 805 N.Y.S.2d 133 (N.Y. App. Div. 2005) (municipal defendant was immune from liability for failure to place a crossing guard in front of a school rather than at an intersection 200 yards away).

Plaintiff draws our attention to decisions issued by the Georgia courts to the contrary. Those cases, however, involve the distinction between "discretionary nonfeasance and negligent maintenance," not at issue here. See Whiddon v. O'Neil, 320 S.E.2d 601 (Ga. Ct. App. 1984); see also Heller v. City of Atlanta, 659 S.E.2d 617 (Ga. Ct. App. 2008).

The fundamental principles embodied in the TCA include the notion that governmental immunity is the rule unless the Act itself creates an exception. Keppler v. Taylor Mills Developers, Inc., 357 N.J. Super. 446, 453 (App. Div. 2003). As we have also said, in enacting the TCA "[t]he Legislature had rejected the concept of a statute that imposed liability with specific exceptions . . . . [Instead], public entities are immune from liability unless they are declared to be liable by enactment." Macaluso v. Knowles, 341 N.J. Super. 112, 117 (App. Div. 2001) (internal quotations omitted). Of necessity, a public entity must retain the power and discretion to determine how to allocate scant resources. Suarez v. Dosky, 171 N.J. Super. 1, 9 (App. Div. 1979), certif. denied, 82 N.J. 300 (1980).

We do not agree with plaintiff that the removal of the crossing guard was analogous to the municipality's failure to trim back shrubbery which obscured a stop sign in Shuttleworth v. Conti Construction Co., Inc., 193 N.J. Super. 469 (App. Div. 1984). It was not governmental action that amounted to a failure to maintain an existing traffic device.

Nor do we agree that liability results from the inherent inadequacy of the crosswalk design. In fact, that argument and the judge's reliance on the purported design defect was error, as N.J.S.A. 59:4-6 protects public entities from liability for injuries "caused by the plan or design of public property, either in its original construction or any improvement thereto . . . ." See also Manna v. State, 129 N.J. 341, 352-53 (1992).

Neither are we convinced that the decision was palpably unreasonable, as plaintiff urges. Bayonne removed the guard only after one of two schools closed, and attempted to address the problem by obtaining special funding for improvements. And when the funding was granted, the City promptly submitted its plans, although for some unknown reasons the money was not released. Nothing in the record establishes that this was a palpably unreasonable decision as compared with all other difficult choices the City had to make because of budgetary constraints.

Therefore, as a matter of law, since the removal of the crossing guard was discretionary and not palpably unreasonable, the TCA does grant Bayonne immunity. Plaintiff's complaint against the City should have been dismissed by way of summary judgment.