YIPING XING v. DAVID C. ROSEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0523-13T4

YIPING XING,

Plaintiff-Respondent,

v.

DAVID C. ROSEN, GUOLIANG ZHENG,

PAVEL TAMARIN, BORIS A. TAMARIN,

RIVYA SODHI, FINANCIAL SERVICES

VEHICLE TRUST, BIANCA C. SULIMAN,

EFRAIN G. MONROY, CITY OF ELIZABETH,

PORT AUTHORITY OF NEW YORK AND

NEW JERSEY, WATERFRONT EXECUTIVE

TRANSPORTATION,

Defendants,

and

NEW JERSEY DEPARTMENT OF TRANSPORTATION,

and NEW JERSEY STATE POLICE,

Defendants-Appellants,

and

CITY OF NEWARK,

Defendant-Respondent.

June 9, 2014

Submitted April 1, 2014 Decided

 
Before Judges Ostrer and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10277-09.

John J. Hoffman, Acting Attorney General, attorney for appellants (Melissa H. Raksa, Assistant Attorney General, of counsel; Peter A. Tabisz, Deputy Attorney General, on the briefs).

Stark & Stark, attorneys for respondent Yiping Xing (Michael G. Donahue, on the brief).

Anna P. Pereira, Corporation Counsel, attorney for respondent City of Newark (Emilia Perez, Assistant Corporation Counsel, on the brief).

PER CURIAM

Plaintiff Yiping Xing fell some thirty feet from the northbound express lanes of Routes 1 and 9 onto the roadway below, suffering severe injuries. Because of the nature and extent of his injuries, plaintiff does not recall the accident; however, his vehicle was one of seven involved in a serial collision attributable to icy road conditions. According to eyewitnesses at the scene, plaintiff may have fallen while running away from an oncoming vehicle as it approached the multi-car pileup.

The Law Division judge denied summary judgment to defendants New Jersey Department of Transportation (DOT) and the New Jersey State Police (collectively referred to as defendants). Their summary judgment application was based on weather immunity conferred by the Tort Claims Act (TCA), N.J.S.A. 59:4-7. We granted defendants' motion for leave to appeal. We now reverse.

The accident occurred on the evening of December 2, 2007. Since 4:00 a.m., DOT had a crew working on snow detail, as it was responsible for maintaining the relevant roadways, including the application of salt and sand on icy road surfaces.

Before the Law Division judge, plaintiff contended that his injuries resulted from dangerous conditions caused by other vehicles, in combination with defendants' failure to warn, and that therefore the TCA's weather immunity did not bar his cause of action. Defendants responded that the hazards posed by other drivers were solely the result of weather conditions, the pile-up occurred within minutes as a result of weather conditions, and that they therefore could not be held liable for the occurrence as a matter of law. Further, defendants argue, without an expert, plaintiff cannot pursue failure to warn as a basis for relief.

The judge granted summary judgment to defendant City of Newark, although it was denied to these defendants. The judge differentiated the applications because of the State's ownership of the highway, the foreseeability of the injuries, and the possible breach of the duty of care resulting from unsuccessful efforts to remedy the icy conditions, or to close the roadway. The judge opined that "whether the conditions of the weather were the sole cause of the plaintiff's injuries or they're proximately caused by some other conduct[]" was an issue of fact to be decided by a jury. We do not agree.

Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Rule 4:46-2(c). See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995). We apply the same standard, deciding first whether there was a genuine issue of material fact. Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011). In the absence of genuine issues of material fact, we then review the decision de novo as a matter of law. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).

As we have repeatedly stated, immunity is the "dominant consideration of the [TCA]." Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 408 (1988) (internal citations and quotations omitted). We begin with the initial presumption of immunity created by the TCA. Luchejko v. City of Hoboken, 414 N.J. Super. 302, 315 (App. Div. 2010), aff d, 207 N.J. 191 (2011).

From that presumption we turn to consideration of N.J.S.A. 59:4-7, which extends immunity to public entities for injuries caused solely by the effect of weather conditions on a roadway. See Pico v. State, 116 N.J. 55, 61 (1989). "[T]he State may be liable for the failure to correct a known pre-existing dangerous condition unrelated to the weather but . . . is immune from liability for such a condition caused solely by weather." Ibid.

Plaintiff asserts that the accident was caused in significant part by defendants' failure to warn, an exception to immunity found in N.J.S.A. 59:4-4. Since Routes 1 and 9 were owned by, and in the control of, defendants, plaintiff reasons that they had the authority and obligation to place emergency signals or to close the roadways based on the poor driving conditions. It is undisputed that three emergency calls were received by the State regarding icing on the relevant roadways in the fourteen hours before plaintiff's injuries. Plaintiff also argues that the stopped vehicles on the roadway were an additional factor creating an exception to weather immunity.

Ownership and control over Routes 1 and 9, and earlier reports of icing, do not take the matter out of the weather immunity provision. Those circumstances do not equate to a factual scenario such as that found in Meta v. Township of Cherry Hill, 152 N.J. Super. 228 (App. Div.), certif. denied, 75 N.J. 587 (1977). In Meta, the plaintiff's car skidded on ice that had formed when a roadside ditch, filled with silt and vegetation, caused water to flood onto the roadway, which then froze as temperatures dropped. Meta, supra, 152 N.J. Super. at 230-31. The Township had previously been alerted about the icy road and the condition of the ditch by a township police officer. Id. at 231. In Meta, the court found that the Township had been alerted to a dangerous condition unrelated to weather, namely, the tendency for water to accumulate in the poorly maintained ditch, which it had ignored. Id. at 233-34. Knowing the potential effect of freezing weather on water sprayed by cars onto the roadway in rain because of the ditch, the Township did nothing to remediate it. Id. at 232-34.

The circumstances here are instead similar to those in Pico. Supra, 116 N.J. at 58. In Pico, the plaintiff was struck by a passing motorist whose car skidded on ice as plaintiff was getting out of her vehicle. Ibid. Because a public entity, although it may be liable for a dangerous condition unrelated to the weather, "is immune from liability for such a condition caused solely by the weather[,]" the Court affirmed the summary judgment granted to the State. Id. at 64. Immunity was proper, despite the fact the State was aware of the icy road conditions as a result of an earlier call from a local police officer. Id. at 57, 61. The weather immunity statute applied because the skidding of the vehicle which caused the plaintiff's injuries was attributable solely to the ice on the road surface caused by weather. Id. at 61-62.

Here, just as in Pico, all the cars involved in the collision were serially skidding on the roadway and crashing into each other because of icy accumulation, including plaintiff's vehicle. That occurrence was solely attributable to weather. Plaintiff's ensuing flight from the pile-up, which in some undetermined fashion resulted in his fall onto the roadway below, was thus caused solely by weather.

Insofar as the case implicates the duty to warn exemption from weather immunity found in N.J.S.A. 59:4-4, plaintiff is not able to establish that exemption in the absence of expert testimony. Only an expert could testify as to the need for signage, where and when it should be placed, or if the roadway or some portions should have been shut down altogether. Therefore, since on this record plaintiff's injuries were "caused solely by the effect on the use of streets and highways of weather conditions," we reverse the judgment of the court. See N.J.S.A. 59:4-7.

We do not reach defendant's other points of error on appeal. They are made moot in light of our conclusion that summary judgment should have been granted under the immunity statute.

Reversed.