VANCE BANKS v. KELLY L. GUNDERSON
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0569-16T1
VANCE BANKS,
Plaintiff-Appellant,
v.
KELLY L. GUNDERSON, TOWNSHIP
OF WINSLOW, and COUNTY OF
CAMDEN,
Defendants-Respondents.
_________________________________
Argued April 16, 2018 – Decided May 30, 2018
Before Judges Sabatino, Ostrer and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No.
L-3027-13.
Jeffrey M. Keiser argued the cause for
appellant.
Burchard S. Martin argued the cause for
respondent Township of Winslow (Martin, Gunn
& Martin, PA, attorneys; Burchard S. Martin,
of counsel; Elizabeth Merrill, on the brief).
Howard L. Goldberg, First Assistant County
Counsel, argued the cause for respondent
County of Camden (Christopher A. Orlando,
County Counsel, attorney; William H. Kenney,
on the brief).
PER CURIAM
Plaintiff Vance Banks was injured badly after he was struck
by a car while walking on a rainy night along a county road in
Winslow Township. Plaintiff sued the driver of the car that struck
him. In that same lawsuit, he also pled negligence claims under
the Tort Claims Act ("TCA"),
N.J.S.A. 59:1-1 to 12-3, against the
Township and Camden County.
Plaintiff asserted the public entities were liable for
allowing a dangerous condition for pedestrians at the accident
location, which had no sidewalk or adequate paved shoulder at that
portion of the northbound side of the road. According to
plaintiff's theory of the case, he was forced to walk in the lane
of vehicular traffic in order to avoid stepping into one or more
puddles by the edge of the road.
After the parties exchanged expert reports and other
discovery, the Township and the County moved for summary judgment.
The trial court granted their motions, applying various immunities
and defenses under the TCA. Plaintiff settled with the driver.
Plaintiff now appeals the summary judgment order issued in
favor of the two public entities. For the reasons that follow,
we affirm.
2 A-0569-16T1
I.
The record reflects the following pertinent facts, which we
consider in a light most favorable to plaintiff. W.J.A. v. D.A.,
210 N.J. 229, 238 (2012).
In the early morning hours of August 19, 2011, plaintiff took
a bus home from his job at Lakeland Hospital. The bus dropped him
off at the Winslow "Park and Ride" stop, near his residence on
Rose Court in the Township. Walking towards home from the bus
stop, plaintiff entered the "Super Wawa" store at the corner of
Williamstown Road and Sicklerville Road at 12:35 a.m. He purchased
some food there. Security footage revealed that plaintiff left
the store at 12:43 a.m. He then walked on the northbound side of
Sicklerville Road, with his back to oncoming traffic, towards his
home on Rose Court.
Sicklerville Road is a Camden County road located within the
Township. The road has a sidewalk and paved shoulder along a
portion of plaintiff's route, but not on the northbound side in
the area where the impact occurred.
Around this time, defendant Kelly L. Gunderson, a police
officer from another municipality, finished dinner with friends
and then headed home. She drove her car along Sicklerville Road.
Near the intersection with Rose Court, Gunderson's car struck
plaintiff, who was walking in the roadway. Gunderson proceeded
3 A-0569-16T1
home, without stopping or reporting the accident immediately to
the Winslow Township police. She did contact police the following
day, explaining that she believed she had hit a deer.
Meanwhile, local police were alerted by a passerby of a person
lying in a parking lot along Sicklerville Road. Police Officer
Joseph DeLaurentis and Patrolman Kathleen Schultz were dispatched
to the scene. The person was later identified as plaintiff.
The ensuing investigation concluded plaintiff had been thrown
into the parking lot by the impact of the collision. The officers
observed plaintiff's sneakers, along with a Wawa bag, which had
been thrown from his body. They also found a car bumper insert
and a sideview mirror.
Plaintiff was treated by emergency medical technicians, and
then transported to a hospital. He was diagnosed with a severe
traumatic brain injury. Plaintiff remained in a coma until
November 2011. He continues to suffer from ongoing cognitive
impairment, and consequently was incapable of being deposed in
this case.
As a result of his investigation, Officer DeLaurentis
determined that the vehicle that struck plaintiff never left the
roadway, as there were no tire marks in the soft sand or grass.
The officer noticed the deteriorated condition of the pavement
along the side of the road, and observed puddles filled with
4 A-0569-16T1
rainwater. DeLaurentis saw that, despite these puddles, the
victim's sneakers were dry, leading him to conclude that plaintiff
had walked into the roadway to avoid the puddles. The officer
determined the area of impact to be in the roadway near the puddle.
Further investigation revealed that, many years earlier in
May 1986, the Camden County Engineer and the County Freeholder
Chairman of Transportation and Public Works had approved and signed
plans for the construction of storm drainage in this area of
Sicklerville Road. The 1986 plans included certain portions of
the road having no shoulder. The plans also called for the
construction of underground drainage pipes along the roadway.
Thereafter, in 2003, the Winslow Township Zoning Board of
Adjustment and the Camden County Planning Board each approved
plans for the expansion of the then-existing Wawa convenience
store. Those plans included the installation of sidewalks along
the portion of Sicklerville Road in front of the store. Such
sidewalk construction is regulated by the Township.
Then, in January 2007, the same land use entities reviewed
and approved plans for the Rose Wood residential subdivision,
where plaintiff lived. The development is located approximately
one-half mile from the Wawa. The plans called for sidewalks to
be built within the development, but apparently none along the
adjacent Sicklerville Road.
5 A-0569-16T1
Kevin Becica, the County's engineer, testified at her
deposition about the maintenance of this area. Becica explained
that the County was "responsible from curb to curb or edge of
pavement to edge of pavement." She noted that generally "townships
determine where sidewalks ought to be located, even on [C]ounty
roads." Becica confirmed the presence of an underground drainage
system in this area, which was installed in lieu of sidewalks.
In his own deposition, the County's supervisor of roads,
Joseph Esposito, agreed that sidewalk placement in this particular
area "is up to the discretion of the [T]ownship[;] the [C]ounty
does not handle sidewalk[s]." He added that County responsibility
for the roadway extends only to "[t]he edge of the blacktop." With
regard to maintenance, Esposito testified there was not a formal
inspection routine involved in maintaining County roads, but that
"we all keep an eye on the roads . . . ."
The County's public works director, Simeon Martello, stated
at his deposition that the County maintained "the traveled portion
of the roadway . . . ." He agreed with Esposito's testimony that
the Township does not designate one person to inspect the roads
on a regular basis, but rather County employees collectively
monitor the roads as part of their general responsibilities. In
a certification filed in support of summary judgment, Martello
stated the County maintains about 1,200 lane miles of roadway, and
6 A-0569-16T1
dispatches crews to repair any reported damage promptly.
The Township's public works director, Edward McGlinchey,
stated in his deposition that the County's maintenance obligation
extended to "anything within the right-of-way of the [C]ounty
highway . . . ." He explained that area would "not necessarily
[be] curb to curb or blacktop to blacktop but right-of-way line
to right-of-way line."
The Township retained Walter Wysowaty, P.E., to perform a
site inspection and engineering evaluation for this case. His
report cited standards published by the American Association of
State Highway and Transportation Officials ("AASHTO") in A Policy
on the Geometric Design of Highways and Streets (5th ed. 2004),
sometimes referred to as the "Green Book." That publication
provides guidelines for construction and maintenance of roadways
and sidewalks.
Wysowaty observed that "Sicklerville Road is not under the
jurisdiction of the Township of Winslow . . . ." He thereby
asserted there is no basis to hold the Township responsible for
maintaining a County road. He noted, "[p]edestrian sidewalks are
not required along all arterial streets." He further opined,
"plaintiff should have been walking along the southbound lanes
facing approaching traffic." In sum, Wysowaty found that the
actions or inactions by the Township "did not cause or contribute
7 A-0569-16T1
to the subject incident . . . in any way whatsoever."
Plaintiff hired an engineer, John Nawn, P.E., to examine the
accident site and determine "the nature and cause of this incident,
related to the roadway features . . . ." In his expert report,
which plaintiff submitted in opposition to defendants' summary
judgment motion, Nawn acknowledged that Sicklerville Road is a
County roadway. He found that plaintiff had been walking in the
northbound travel lane, which was eleven feet wide, at the time
of the accident. He noted that the southbound travel lane, by
contrast, was thirteen feet wide and included an additional twelve-
foot shoulder.1 The lanes were separated by a four-inch wide,
yellow-colored double stripe, and were bounded on each side by
four-inch white striping.
Nawn asserted that, "As a result of the lack of sidewalks,
shoulders or any pedestrian accommodation" along the northbound
side of the road, together with "the presence of a water filled
pothole along the edge of the roadway that blocked pedestrian
passage, Sicklerville Road . . . was in an unreasonably dangerous
condition" when this accident occurred.
1
As we discuss, infra, in Part II, the photos of the scene in the
motion record show that there was no or minimal northbound paved
shoulder. Nawn stated "[t]here was no shoulder, paved or
otherwise, along the northbound lane." Also, the photos reveal
that the edge of the pavement was crumbling and had deteriorated
in spots.
8 A-0569-16T1
Nawn opined that the roadside's condition "created a
foreseeable risk of pedestrians walking in the north bound travel
lane." He found the County lacked adequate systems in place to
inspect its roadways for damage. He specifically faulted the
County for failing to detect and repair the condition in this
case, despite work orders that had been issued for pothole repair
at unspecified locations along Sicklerville Road.
According to Nawn, the County had constructive notice of the
allegedly dangerous condition. In this vein, his review revealed
that County public works crews had spent 136 hours filling potholes
along Sicklerville Road during the eight months before this
accident. He also learned that such pothole patching had occurred
in this vicinity two weeks before the accident, on August 5, 2011.
On the whole, Nawn concluded that plaintiff's injuries were
"a direct result of the unreasonably dangerous condition . . . ."
He postulated that "[h]ad Camden County and/or Winslow Township
provided pedestrian accommodation," this accident would not have
occurred. In addition, he opined that the actions or inactions
of both public entities to address the dangerous condition were
"palpably unreasonable."
In his oral opinion granting summary judgment to both the
Township and the County, the motion judge relied upon several
provisions within the TCA that insulate public entities in New
9 A-0569-16T1
Jersey from certain negligence claims.
With respect to the Township and plaintiff's theory
criticizing the lack of sidewalks at the accident location, the
judge relied upon the TCA's discretionary immunity principles,
which are codified at
N.J.S.A. 59:4-6. The judge also invoked
N.J.S.A. 59:2-3 providing for plan or design. Moreover, the judge
rejected plaintiff's argument that the Township could be liable
under
N.J.S.A. 59:4-2 for allowing a dangerous condition on public
property. In this regard, the judge concluded that the puddling
that plaintiff attempted to avoid was not on Township property.
In addition, the judge found no basis for a jury to find the
Township's conduct was "palpably unreasonable" as required by
N.J.S.A. 59:4-2. As the judge concluded:
The [T]ownship has no duty to the plaintiff
to put in sidewalks.
N.J.S.A. 59:2-3,
provides immunity for [its] actions or
inactions and are discretionary in nature.
No [T]ownship property . . . is involved in
this litigation. The lack of sidewalks [is]
the decision by the [T]ownship not to put in
sidewalks at this location, even though [it]
may have put some in down the road, or required
them, is not palpably unreasonable. It is
part of the design immunity. And [it], also,
[has] immunity when it comes to the
expenditure of public funds.
So the motion by the [T]ownship will be
granted.
10 A-0569-16T1
With respect to plaintiff's claims against the County, the
judge similarly found under
N.J.S.A. 59:4-2 that the County had
not allowed a "dangerous condition" to persist on its roadway, or
that the County's conduct was "palpably unreasonable." Moreover,
the judge found the County, like the Township, was immunized by
design immunity principles. The judge reasoned as follows:
The plaintiff['s] claim, here, is that there
was a dangerous condition of public property,
not [an] affirmative act of negligence by an
employee. [
N.J.S.A.] 59:4-2. In that case,
the plaintiff must show that the [C]ounty was
in control of the property where the accident
occurred; that there was a dangerous condition
at the time of the accident; that the injury
was proximately caused by that condition; that
it was a foreseeable risk; and that it was,
either, created by a [C]ounty employee, or
that there was actual or constructive notice
of such dangerous condition.
If all of that has been shown there's still
no liability on the part of the [C]ounty if
its action or inaction was not palpably
unreasonable; or if its action or inaction was
covered by design immunity.
As I indicated, as the plaintiff went walking
down, presumably, on the grass or walking
north on Sicklerville Road and got to this
puddle, he chose to go left around the puddle
into the roadway, rather than go to his right
around the puddle and the accident occurred.
It was argued in the papers, although, not
mentioned here, that the plaintiff's actions
were contrary to the statute when walking on
or near a highway. The pedestrian must walk
against traffic, not in the same direction as
traffic. But we'll put that aside because it
11 A-0569-16T1
doesn't matter really.
By statute, the [C]ounty is responsible for
the roadway from curb line to curb line, or
from paving – end of paving to end of paving
where there is no curb.
The right of way, here, extends beyond the
roadway. A right of way gives the [C]ounty
the option to enter into the right of way and
construct or create additional roadway or
shoulders, or whatever [it] may want – wish
to do.
That was not done here. The plan to [–] this
roadway shows the roadway to be the 40 some
foot width with the right of way beyond that.[2]
The judge then offered these further observations on the "dangerous
condition" issue:
Also, the property in question, the roadway,
here, was not in a dangerous condition if it
became dangerous only when used without due
care. That is, the plaintiff stepping out
into the roadway.
Plaintiff has the affirmative burden to show
that he acted with due care. Walking into the
street does not do that. The depression – the
primary point, however, today, is that the
depression – whether it's a declivity or a
pothole – I think, is of no moment – the
depression is not on [C]ounty property. It
is on the property – the driveway of the
business that's adjacent to the public road.
And repairs of that private – of that property
would be that of the owner of the adjoining
property and not of the [C]ounty. The
[C]ounty has 228 square miles, or 28 highway
department members to fix potholes, et cetera.
2
The judge later corrected this measurement to be twenty-four
feet.
12 A-0569-16T1
Even if this [were] on the [C]ounty road there
is no evidence that it was reported to the
[C]ounty and that [it] had any notice or
knowledge of it, assuming [it] had a duty to
fix it in the first place.
[(Emphasis added).]
Following the court's dismissal of the public-entity
defendants, plaintiff settled his claims against co-defendant
Gunderson. That settlement disposed of all outstanding issues in
the trial court. Plaintiff's present appeal of the summary
judgment ruling as to the public entities ensued.
II.
Indisputably, the Township and the County are public entities
that are liable for their negligence only to the extent permitted
by the TCA.
N.J.S.A. 59:1-2;
N.J.S.A. 59:1-3;
N.J.S.A. 59:2-1(a);
see Posey v. Bordentown Sewerage Auth.,
171 N.J. 172, 181-82 (2002)
(counties and municipalities are public entities that fall within
the coverage of the TCA).
As a starting point to our TCA analysis,
N.J.S.A. 59:2-1(b)
provides that "[a]ny liability of a public entity established by
this act is subject to any immunity of the public entity . . . ."
Under the TCA, immunity for public entities is generally the rule
and liability is the exception. See
N.J.S.A. 59:2-1(b); Fluehr
v. City of Cape May,
159 N.J. 532, 539 (1999); see also Kolitch
v. Lindedahl,
100 N.J. 485, 495-97 (1985) (applying the TCA to
13 A-0569-16T1
immunize the State in its decision to set a speed limit for a road
under
N.J.S.A. 59:2-3, its failure to warn of a roadway hazard
under
N.J.S.A. 59:4-5, and defects in its plan and design of the
road under
N.J.S.A. 59:4-6).
The requirements for holding a public entity liable for the
dangerous condition of public property are set forth in
N.J.S.A.
59:4-2 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.
[
N.J.S.A. 59:4-2 (emphasis added).]
Even if a plaintiff establishes these basic elements of a
dangerous condition, he or she also must prove the public entity's
conduct was "palpably unreasonable."
N.J.S.A. 59:4-2 further
provides:
14 A-0569-16T1
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).]
The liability provisions of
N.J.S.A. 59:4-2 are also limited
by specific immunity sections within Title 59 and under common
law. All immunity provisions prevail over liability provisions.
See Weiss v. N.J. Transit,
128 N.J. 376, 380-82 (1992); Malloy v.
State,
76 N.J. 515, 519 (1978).
In reviewing the trial court's application of these and other
substantive principles of liability and immunity under the TCA,
we are mindful those rulings were issued in the context of motions
for summary judgment. Thus, we apply the familiar standards of
Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995);
see also R. 4:46-2(c). The court "must accept as true all the
evidence which supports the position of the party defending against
the motion and must accord him [or her] the benefit of all
legitimate inferences which can be deduced therefrom, and if
reasonable minds could differ, the motion must be denied." Brill,
142 N.J. at 535 (alteration in original) (citations omitted). If
the evidence "'is so one-sided that one party must prevail as a
matter of law,' the trial court should not hesitate to grant
15 A-0569-16T1
summary judgment." Id. at 540 (quoting Anderson v. Liberty Lobby,
Inc.,
477 U.S. 242, 252 (1986)). The question of whether a public
entity is entitled to immunity may be properly decided on summary
judgment. See Ciambrone v. State of N.J. Dep't. of Transp.,
233 N.J. Super. 101, 107 (App. Div. 1989) (noting the DOT met its
burden of showing no genuine dispute of fact with respect to its
immunity).
On appeal, we employ the same standard of summary judgment
review that governs the trial court. Henry v. N.J. Dep't. of
Human Servs.,
204 N.J. 320, 330 (2010). No special deference is
warranted to the trial court examining the same summary judgment
record. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.
of Pittsburgh,
224 N.J. 189, 199 (2016). Moreover, when reviewing
the trial court's ruling on a legal issue in this context, our
review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan,
140 N.J. 366, 378 (1995).
A.
Applying these well-settled principles, we affirm the trial
court's grant of summary judgment to the Township. Plaintiff
principally argues that the court erred in finding that the
Township was entitled to immunity under
N.J.S.A. 59:2-3
(discretionary immunity) and
N.J.S.A. 59:4-6 (plan or design
immunity). We disagree.
16 A-0569-16T1
As the judge noted, plaintiff's theory of liability under
N.J.S.A. 59:4-2 against the Township was that the property was in
a dangerous condition because the Township failed to construct a
sidewalk along Sicklerville Road, thereby necessitating plaintiff
to walk into the roadway to avoid one or more puddles. However,
even if plaintiff could satisfy all of the elements of
N.J.S.A.
59:4-2, plaintiff's cause of action is barred by the discretionary
immunity provision of
N.J.S.A. 59:2-3(b), which provides that
"[a] public entity is not liable for legislative or judicial action
or inaction, or administrative action or inaction of a legislative
or judicial nature . . . ."
The discretionary immunity serves to immunize both public
employees and public entities for the exercise of discretion within
the scope of employment. See Bergen v. Koppenal,
52 N.J. 478, 480
(1968) (holding that high-level policy decisions made by
government entities should not be reviewed by a jury); Cobb v.
Waddington,
154 N.J. Super. 11, 16 (App. Div. 1977) (holding the
selection of barricades in a road construction project was an
exercise of judgment, and therefore defendant Department of
Transportation was immune from liability).
The Township's decision not to install or require sidewalks
near the accident location was based on the discretionary decisions
of its legislative and quasi-judicial bodies and is entitled to
17 A-0569-16T1
immunity under
N.J.S.A. 59:2-3(b). No New Jersey case law or
statute requires a municipality to install sidewalks.
N.J.S.A.
40:65-14 simply states, in discretionary language, that "[a]ny
municipality may prescribe by general ordinance in what case curbs
and sidewalks shall be constructed, repaired, altered, relaid or
maintained at the expense of the abutting landowners . . . ."
(Emphasis added). Thus, rather than undertake to install sidewalks
itself, the Township's legislative body ceded this obligation to
property owners through the Township of Winslow Code § 294-128,
which provides that "[e]ach land development shall provide a
sidewalk within the road right-of-way." In deciding to defer this
task to the property owners who adjoin the road, the Township
exercised the discretion conferred by the statute. The failure
of an adjoining property owner to install sidewalks, as here, is
not attributable to the Township.
Similarly, the Township enjoys discretionary immunity based
on
N.J.S.A. 59:2-3(b), through its planning board's approval of
development plans for the Wawa store and the Rose Court residential
neighborhood, which essentially serve as "bookends" for the scene
of this accident. The Township deferred to its zoning board,
which approved these plans. The zoning board's independent
consideration of these plans and the pedestrian traffic along
Sicklerville Road, together with the discretion which it exercised
18 A-0569-16T1
in not requiring connecting sidewalks, entitles the Township to
immunity from this lawsuit.
In the alternative, the trial court also found that the
Township was entitled to discretionary immunity under
N.J.S.A.
59:2-3(d), which provides that:
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.
This provision "refers to the public entity's discretion in
determining what action should or should not have been taken."
Brown v. Brown,
86 N.J. 565, 575 (1981). The applicability of
N.J.S.A. 59:2-3(d) "does not per se establish immunity, for
immunity is not available if 'a court concludes that the
determination of the public entity [regarding a dangerous
condition] was palpably unreasonable.'" Id. at 578.
Although the motion judge made only a passing reference to
this provision, he implied that the Township's limited resources
did not allow for the creation of sidewalks throughout the
municipality, when it held that the Township has "immunity when
19 A-0569-16T1
it comes to the expenditure of public funds." The judge commented
further on this aspect of immunity, when he concluded that the
Township's decision "not to put in sidewalks at this location" is
"not palpably unreasonable."
In a similar case, Mitchell v. City of Trenton,
163 N.J.
Super. 287, 289-90 (App. Div. 1978), a municipality declined to
repair a certain portion of curbing upon which the plaintiff had
been injured. The court found that "[g]iven the many competing
demands upon an urban entity for funds, ranging over the areas of
public safety, roads, sanitation, public housing, health,
education, and others, we hold that the trial judge properly
concluded that the city's decision not to allocate resources
for the repair of curbing was not 'palpably unreasonable' as a
matter of law under N.J.S.A. 59:2-3(d)." Id. at 291-92.
Here, the judge soundly ruled that the Township's decision
not to build sidewalks along every roadway within its boundaries,
or to compel all property owners to do so, was not palpably
unreasonable. The Township faced competing demands. This is
evidenced by McGlinchey's testimony that the Township encompasses
"60 square miles" which include numerous roads, sidewalks, and
other features requiring maintenance. Such a large area, when
considered in light of the limited budgets available to
municipalities, as illustrated in Mitchell, supports the court's
20 A-0569-16T1
finding that immunity is proper.
In any event, in addition to discretionary immunity, the
court properly found that the Township is also entitled to "[p]lan
or design immunity,"3 under
N.J.S.A. 59:4-6. That portion of the
statute provides that:
a. Neither the public entity nor a public
employee is liable under this chapter for an
injury caused by the plan or design of public
property, either in its original construction
or any improvement thereto, where such plan
or design has been approved in advance of the
construction or improvement by the Legislature
or the governing body of a public entity or
some other body or a public employee
exercising discretionary authority to give
such approval or where such plan or design is
prepared in conformity with standards
previously so approved.
This provision grants public entities complete immunity for
injuries resulting from dangerous conditions produced by the plan
or design of public property, where such a plan or design has been
officially approved by an authorized body. See Thompson v. Newark
Housing Auth.,
108 N.J. 525, 536-37 (1987) (regarding design
immunity as to presence of smoke detectors); Birchwood Lakes Colony
Club v. Medford Lakes,
90 N.J. 582, 599 (1982) (regarding design
immunity as to discharge of high amounts of phosphate and nutrients
3
We recognize the judge said "design" immunity in his oral
opinion, but he was obviously referring to "plan or design"
immunity under
N.J.S.A. 59:4-6.
21 A-0569-16T1
into a lake).
As noted in Manna v. State,
129 N.J. 341, 359 (1992), design
immunity "attaches to the [public entity]'s decision regarding how
to design a particular feature, and does not turn on explicit
consideration of specific options."
The motion judge's application of "design immunity" to the
Township here was sound. As we noted, the Township's zoning board
reviewed and approved complicated development plans for the Wawa
store and the Rose Wood subdivision in 2003 and 2006, respectively.
In doing so, the Township, as a planning matter, chose not to
require sidewalks connecting the two projects, despite the
opportunity to observe and consider the nature of pedestrian
traffic on Sicklerville Road.
Plaintiff's argument that the Township failed to consider
coordination of these developments reflects the very type of
decision contemplated by plan or design immunity, which disallows
juror scrutiny of such design decisions.
N.J.S.A. 59:4-6. The
board, cognizant of the two developments and the road between
them, did not elect to require the construction of continuous
sidewalks. The planning board's judgment is entitled to deference,
and entitles the Township to immunity.
Plaintiff's citations to Thompson,
108 N.J. at 536,
Birchwood,
90 N.J. at 602, and Ellison v. Housing Auth. of South
22 A-0569-16T1
Amboy,
162 N.J. Super. 347, 351-52 (App. Div. 1978), are not
persuasive. While these cases do illustrate limits on the scope
of plan or design immunity, the Township here satisfied the
directives announced in those cases. The Thompson court cited
Birchwood and Ellison, and held that "[t]he specific design or
plan detail alleged to constitute the dangerous condition must
have been given official approval for the immunity to attach."
Thompson,
108 N.J. at 536. However, in both Manna,
129 N.J. at
357, and Luczak v. Township of Evesham,
311 N.J. Super. 103, 109
(App. Div. 1998), the courts made clear that the government entity
need only show that it considered the general condition involved
in a plaintiff's claim, rather than specific design options.
Here, the general design of the roadside between the Wawa and
Rose Wood, albeit not Township property, must have been considered
in the planning board's determinations. The plans as approved for
Wawa and Rose Wood both involved sidewalks within and around each
development, but did not mandate immediate construction of
connecting sidewalks between the two developments. The Township's
code § 294-128 required that "[e]ach land development shall provide
a sidewalk within the road right-of-way," which would affect any
subsequent development within that corridor. It suggests that the
Township duly considered the need for sidewalks. Because the
Township's zoning board considered the need for sidewalks within
23 A-0569-16T1
each of these projects and approved them without a connecting
sidewalk, and because it was able to rely on its ordinance as to
construction of new sidewalks in this corridor, the board properly
considered this detail in its approval.
Plaintiff also relies upon Costa v. Josey,
160 N.J. Super.
1, 10-12, 14 (App. Div. 1978), aff'd,
79 N.J. 535 (1979), rev'd
on rehearing,
83 N.J. 49 (1980), in which a trial court initially
found that, even if a roadway were dangerous, defendant was immune
under
N.J.S.A. 59:2-3(a) or
N.J.S.A. 59:4-6. On appeal, the
Supreme Court clarified that, once the municipality undertook to
resurface the roadway in question, it was no longer immune. Costa,
83 N.J. at 55.
Here, however, the Township never undertook to improve the
roadside and Costa is thus distinguishable. The Township had no
maintenance responsibility for this County roadway. Costa also
stands for the proposition that plan or design immunity only
applies to policy decisions, rather than operational ones. Ibid.
The Township's decision in this case not to require construction
of sidewalks was a comprehensive policy decision. This is
evidenced by the passage of its sidewalk ordinance requiring
individual property owners to construct their own sidewalks. In
making this policy decision, the Township shifted the
responsibility to individual property owners and is thus entitled
24 A-0569-16T1
to immunity here.
B.
Plaintiff separately argues that the trial court erred in
dismissing his claim against the County for a dangerous condition
on public property under
N.J.S.A. 59:4-2 and in finding that the
County was entitled to plan or design immunity under
N.J.S.A.
59:4-6. We discern no such error.
The basis of plaintiff's theory of the County's liability is
slightly different than the Township's. The County's alleged
negligence is premised on plaintiff's argument that: (1) the
puddle(s) located on the side of Sicklerville Road within the
County's right-of-way comprised a dangerous condition of property;
(2) of which the County was on notice; (3) plaintiff's "injury was
proximately caused by the dangerous condition;" (4) "the dangerous
condition created a reasonably foreseeable risk of the kind of
injury which was incurred;" and (5) the County's failure to protect
against the condition was "palpably unreasonable."
N.J.S.A. 59:4-
2. The motion judge rightly determined these arguments are
unavailing.
As a threshold matter, the trial court found that the roadside
puddling was not located on County or Township property, but rather
on private property. The judge observed the puddling "is on the
property – the driveway of the business that's adjacent to the
25 A-0569-16T1
public road" and "not on [C]ounty property." In reaching this
conclusion, the judge relied on photos in evidence, together with
Becica's testimony, which revealed that the [C]ounty is
responsible for the roadway "from curb to curb" or from "edge of
pavement to edge of pavement," as well as Esposito's testimony
that County responsibility for the roadway extends only to "edge
of blacktop." That distance was the roughly twenty-four feet of
blacktop road surface. The surface constituted only part of the
County right-of-way, which is either sixty-six feet wide or forty-
nine and a half feet wide, depending on the plans observed.
Viewing, as we must, the record in a light most favorable to
plaintiff, it appears the trial court should not have conclusively
ruled that the area where the roadside puddling was located was
solely over private property within the County's right-of-way.
The photos and the testimony of the multiple deponents could
reasonably support an inference for plaintiff that a portion of
the puddling was located on the roadway, or its crumbling edge.
Even so, that factual possibility is inconsequential to a proper
analysis of the legal issues.
To be sure,
N.J.S.A. 59:4-2 provides in part that "[a] public
entity is liable for injury caused by a condition of its property
. . . ." (Emphasis added). Notably,
N.J.S.A. 59:4-1(c) provides
that "[p]ublic property" means real or personal property owned or
26 A-0569-16T1
controlled by the public entity, but does not include easements,
encroachments and other property that are located on the property
of the public entity but are not owned or controlled by the public
entity." Case law has held that roadways and their constituent
elements are public property under the TCA. Norris v. Borough of
Leonia,
160 N.J. 427, 441 (1999) (citations omitted); see McGowan
v. Borough of Eatontown,
151 N.J. Super. 440, 449 (App. Div. 1977).
Significantly,
N.J.S.A. 27:16-8 provides that the County
"shall maintain every road laid out, opened, taken over, or
acquired by it, between the curb lines, and keep it in repair,
safe and convenient for travel during all seasons of the year."
(Emphasis added). Pursuant to statute, the paved roadway was the
limit and extent of the area controlled by the County, unless the
County had improved or maintained areas beyond the curb lines.
N.J.S.A. 27:16-8. That statutory mandate was supported by
testimony from both Becica and Esposito. While the County enjoyed
an undeveloped right-of-way beyond the existing roadbed, it did
not "own or control" the right-of-way, as it was improved with a
private office parking lot.
It is undisputed that a private entity, Clark and Associates,
owned the land on which the right-of-way was located. As the
court found, that area remained private property. It is similarly
undisputed that the County did not control or maintain the property
27 A-0569-16T1
beyond the roadway, despite its right-of-way. Property
"controlled" by a public entity does not mean any property falling
within its geographical boundaries. Christmas v. City of Newark,
216 N.J. Super. 393, 398 (App. Div. 1987); Brothers v. Borough of
Highlands,
178 N.J. Super. 146, 150 (App. Div. 1981). Instead,
"possessory control consistent with property law is necessary."
Posey,
171 N.J. at 183. There was no evidence here to suggest
that the County exercised any possession or control over the
private parking lot here, despite the existence of its right-of-
way.
Nonetheless, plaintiff contends that a public right-of-way
such as this one, which runs over private land, should be
considered public property, citing to Braun v. Township of Mantua,
270 N.J. Super. 404, 413 (Law Div. 1993). However, in that case,
the accident occurred on an improved portion of the right-of-way,
which was deemed public property. Ibid.
Here, the County had never undertaken to utilize or improve
the full extent of its right-of-way, on which the condition in
question was completely or at least partially located. Furey v.
County of Ocean,
273 N.J. Super. 300, 305 (App. Div. 1994) is
instructive on this point. In Furey, we held that the defendant
county was responsible for the entire right-of-way, including a
shoulder, because the road "in its entire right-of-way is and was
28 A-0569-16T1
owned, maintained and controlled by the defendant, Ocean County."
(Emphasis added). In the present case, the County never undertook
to control or maintain the entire right-of-way, but rather only
the paved roadway, pursuant to statute and in accord with Becica's
testimony. No published case law or statute requires maintenance
of an unused portion of a public entity's right-of-way that is
otherwise on private property.
The trial court relied on statutory language and credible
testimonial evidence from the County's professionals, all of which
established the limits of the County's control as being between
the edges of the pavement.
N.J.S.A. 27:16-8. While Esposito's
testimony, on leading questions from plaintiff's attorney, did
passingly acknowledge the site of this incident as "the shoulder"
– perhaps somehow connoting an area maintained by the County –
plaintiff failed to produce any tangible evidence to that effect
and Esposito's own direct testimony belied this remark. Further,
plaintiff's own expert and the investigating officer both agreed
that there was no shoulder at the site of this accident. Only the
Township's witness, McGlinchey, opined that the County's
maintenance obligation should run from "right-of-way-line to
right-of-way-line," but did not offer any statutory or even
anecdotal support for that assertion and appears to have merely
29 A-0569-16T1
expressed his preference in light of his own role with the
Township.
Even if plaintiff could establish that the puddling and
depression was located, at least in part, on "public property,"
he did not present sufficient evidence to defeat the motion for
summary judgment on issues of liability for a dangerous condition.
The trial judge appropriately found "the roadway, here, was
not in a dangerous condition if it became dangerous only when used
without due care." The judge concluded that plaintiff's conduct
"stepping out into the roadway" does not show due care. The judge
also explained that "whether it's a declivity or a pothole – I
think, is of no moment . . . ."
As noted, supra, pursuant to
N.J.S.A. 59:4-1(a), a
"[d]angerous 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." Whether property is in a "dangerous
condition" is often, but not always, a question for the finder of
fact. Vincitore v. Sports & Expo. Auth.,
169 N.J. 119, 123 (2001)
(citations omitted). Just like "any other fact question before a
jury, [that determination] is subject to the court's assessment
whether it can reasonably be made under the evidence
presented." Id. at 124 (alteration in original) (emphasis added)
30 A-0569-16T1
(quoting Black v. Borough of Atl. Highlands,
263 N.J. Super. 445,
452, (App. Div. 1993)).
Instructively, the Supreme Court in Vincitore described the
test used under the TCA to determine if property is in a "dangerous
condition":
The first consideration is whether the
property poses a danger to the general public
when used in the normal, foreseeable manner.
The second is whether the nature of the
plaintiff's activity is "so objectively
unreasonable" that the condition of the
property cannot reasonably be said to have
caused the injury. The answers to those two
questions determine whether a plaintiff's
claim satisfies the Act's "due care"
requirement. The third involves review of the
manner in which the specific plaintiff engaged
in the specific activity. That conduct is
relevant only to proximate causation, N.J.S.A.
59:4-2, and comparative fault,
N.J.S.A. 59:9-
4.
[Vincitore,
169 N.J. at 126 (quoting Garrison
v. Twp. of Middletown,
154 N.J. 282, 292
(1998)).]
Assuming, for the sake of discussion, that at least part of
the allegedly dangerous condition was located on County property,
the Vincitore test is not satisfied by this record. No reasonable
jury could conclude that the area was in what the TCA classifies
as an actionable dangerous condition.
Under the first prong of the test, it cannot be said that the
roadside was in a dangerous condition, when used as it was
31 A-0569-16T1
intended. Vincitore,
169 N.J. at 126. The road's main purpose
was for vehicular traffic. Nothing in the record suggests that
the road was in any way unsafe for that purpose. Unlike the
southbound portion of the road, the northbound roadside was not
intended for pedestrian or vehicular use, as no sidewalk or
shoulder existed there.
Under the second prong of the Vincitore test, plaintiff's
hazardous use of the road was so objectively unreasonable that the
condition itself cannot be said to have caused the injury. Ibid.
Plaintiff was walking in the middle of a dark roadway on a rainy
night, with his back to traffic. That was contrary to
N.J.S.A.
39:4-34, which provides that "[o]n all highways where there are
no sidewalks or paths provided for pedestrian use, pedestrians
shall, when practicable, walk only on the extreme left side of the
roadway or its shoulder facing approaching traffic."
Although plaintiff's counsel and experts argue that it was
impracticable for him to have walked on the opposite side of the
road, he attributes his decision only to the inconvenience of
having to cross the highway twice. His conduct in walking on the
roadway in violation of the statute, is indicative of a lack of
due care, precluding a finding that an actionable dangerous
condition existed here. Ibid. Plaintiff therefore fails the
32 A-0569-16T1
first and second prongs of Vincitore, and there is no need to
discuss the third prong.
In sum, we find the trial court did not err in determining
that plaintiff failed to present sufficient evidence regarding the
existence of an actionable dangerous condition.
Plaintiff asserts that it was reasonably foreseeable that
pedestrians would walk in this case along Sicklerville Road.
Nevertheless, that question is inconsequential. As a result of
its findings as to dangerous condition, the court below properly
did not reach the foreseeability of this accident. Polzo v. County
of Essex,
209 N.J. 51, 66 (2012), makes clear that "[o]nly if
plaintiff can prove [the dangerous condition] do we turn to the
next step" in an analysis of the
N.J.S.A. 59:4-2 claim.
Plaintiff further argues that the court erred in finding that
the County did not have actual or constructive notice of this
condition, based on the length of time for which the condition
existed, and the fact that the County did not have a formal road
inspection mechanism in place. Because plaintiff did not establish
the other elements of his claim, the court was not required to
reach this issue, either. Ibid. In any event, the proofs do not
establish such notice.
The motion judge did not find evidence of actual or
constructive notice present, reasoning that, "[e]ven if this
33 A-0569-16T1
[were] on the [C]ounty road there is no evidence that it was
reported to the [C]ounty and that [it] had any notice or knowledge
of it, assuming [it] had a duty to fix it in the first place." We
agree.
Chatman v. Hall,
128 N.J. 394, 418 (1992) (citations omitted),
a case cited by plaintiff, notes that the length of time a pothole
exists, as well as its alleged size, can create an inference of
constructive notice. But, Maslo v. City of Jersey City,
346 N.J.
Super. 346, 350 (App. Div. 2002), made clear that a public entity
had no actual or constructive notice of an uneven sidewalk, despite
plaintiff's expert opinion that the condition existed for at least
one year. Further, in Polzo the Court held that the government
entity did not have constructive notice of the condition even
though it surveyed the roadway in the weeks before the accident.
Polzo,
209 N.J. at 56. Polzo also held that constructive notice
of a dangerous condition will not be found merely because the
government entity did not have a regular inspection routine in
place. Id. at 69.
Even assuming the County had a maintenance obligation for the
right-of-way area outside the roadway, plaintiff adduced no
evidence to show actual notice of a dangerous condition. Plaintiff
did not produce any reports as to this particular location prior
to the accident, though there were warnings and repairs as to
34 A-0569-16T1
other conditions along this block of Sicklerville Road. As the
County rightly points out, absent more specific evidence,
generalized warnings cannot serve as notice of a claimed defect
at this particular location. See Norris,
160 N.J. at 447.
Similarly, again presuming for argument's sake that the
County had a maintenance obligation at the edge of the northbound
pavement, plaintiff provided no credible evidence to suggest
constructive notice of a danger. Plaintiff speculates the
condition probably existed for at least a few months. That
argument is inapposite to Maslo, which made clear that a witness'
speculation as to the length of time in which a condition existed
is insufficient to show constructive notice. Maslo,
346 N.J.
Super. at 249. The argument also runs afoul of Polzo's holding
that roadway maintenance in the weeks before an accident does not
amount to constructive notice. Polzo,
209 N.J. at 56.
Despite the absence of a formal road inspection protocol for
this location, the record reflects that road crews monitored County
roadways in conjunction with their other duties. They spent 136
hours repairing this area of Sicklerville Road from January to
August 2011. Testimony from Esposito made clear the crews did
"keep an eye on the roads" as a regular part of their job
responsibilities. There is no evidence any of them reported this
particular condition. The County rightly points out that such
35 A-0569-16T1
crews would not report or repair a condition that they determined
to be on private property, outside the County's maintenance
responsibility. Moreover, Polzo,
209 N.J. at 69, instructs that
courts should not second-guess a government entity's roadway
inspection procedures.
Additionally, even if plaintiff had established the elements
of dangerous condition liability under
N.J.S.A. 59:4-2, the County
is nonetheless immune because of plan or design immunity. The
court found that design immunity under
N.J.S.A. 59:4-6 applied to
the County because, based on the 1986 stormwater plans, "[t]he
section of the roadway was designed, as they say, without a
shoulder or without a curb . . . ." This finding is supported by
the record, which demonstrated that the Camden County Planning
Board reviewed and approved plans related to the conditions of
Sicklerville Road on several occasions. In the 1986 stormwater
plans, the County planning board chose not to require sidewalks
or a shoulder after studying the general condition of the roadside,
instead requiring significant piping for drainage purposes.
Similarly, in approving both the Wawa expansion and the Rose Wood
subdivision, the County did not elect to modify the roadside along
this length of Sicklerville Road. The County apparently was
content with the existing sidewalks, which covered approximately
64% of the distance between these two developments while also
36 A-0569-16T1
deferring to the Township's sidewalk ordinance. These approvals
at the County level reflected the exercise of discretion afforded
to the planning board, and entitle the County to plan or design
immunity. Because this immunity applies, and immunity provisions
under the TCA generally prevail over liability provisions, summary
judgment was appropriate.
Lastly, we concur with the motion judge that the County was
entitled to summary judgment because plaintiff could not
realistically prove to a jury that its conduct was "palpably
unreasonable," as required under
N.J.S.A. 59:4-2. The puddling
depicted in the photos, even though they were taken several hours
after the accident, does not depict a sufficiently extreme hazard
to satisfy this very high burden of proof. "[P]alpably
unreasonable" "implies behavior that is patently unacceptable
under any given circumstances." Kolitch,
100 N.J. at 493. At
most, the County's alleged inattention to the problem was merely
negligent. Its conduct does not rise to a level of wrongfulness
to be actionable under
N.J.S.A. 59:4-2.
C.
To summarize, even if we afford plaintiff all reasonable
inferences from the factual record, plaintiff cannot surmount the
immunities and stringent requirements of the TCA to make either
of these public entities liable for this unfortunate accident.
37 A-0569-16T1
Those entities properly were granted summary judgment. By
contrast, the co-defendant motorist appears to have been the
culpable party, at least for the reason she left the scene of the
accident with plaintiff on the ground injured and unaided. Having
settled with that motorist, plaintiff had no viable claims
remaining for a jury to consider.
The remaining arguments presented on appeal lack sufficient
merit to warrant discussions. R. 2:11-3(e)(1)(E).
Affirmed.
38 A-0569-16T1
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