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McGowan v. Borough of Eatontown

Decided: July 13, 1977.


Bischoff, Morgan and King. King, J.s.c., Temporarily Assigned.


Plaintiff appeals from a grant of summary judgment below in favor of defendants Borough of Eatontown and State of New Jersey. This personal injury claim was brought by the driver of a motor vehicle involved in a one-car accident occurring on State Highway 35 on February 4, 1973, in the vicinity of the driveway of defendant Mother Hubbard Restaurant in Monmouth County. Defendants State and borough prevailed below by summary judgment on an assertion of statutory immunity under our Tort Claims Act, N.J.S.A. 59:1-1 et seq. The sole question on this appeal is the propriety of the trial judge's ruling on the immunity issue.

The complaint alleged negligent construction of a driveway on the roadside property of the Mother Hubbard Restaurant causing a runoff of large quantities of water onto the adjoining state highway. Plaintiff alleged that the water accumulated on the highway because of improper drainage and formed into ice, causing him to lose control of his vehicle and crash, resulting in his personal injuries. He charged the State with negligently maintaining the highway and improperly granting approval for the construction of the restaurant

driveway. The borough was charged with negligently permitting the restaurant to construct the driveway with improper drainage facilities. Defendant Mother Hubbard Restaurant impleaded several contractors who built the driveway, and the architect who designed the site. Contributions by defendant Mother Hubbard Restaurant and these third-party defendants who participated in the design and construction of the driveway generated a package of $10,000, which plaintiff accepted in settlement and discharge of these parties' liability. Only the State and the borough remain in the litigation and the validity of their assertion of immunity in this factual situation is the problem posed on this appeal.

Plaintiff was driving south on State Highway 35 at about 7 A.M. on Sunday, February 4, 1973. He has no personal recollection of the accident. According to the statement of a witness given to the investigating police officer, plaintiff's vehicle "hit a slick spot and went sideways." The police investigation indicated that plaintiff's car flipped over several times. Investigating officer Pierce was thoroughly deposed and his testimony is in effect the record below. Pierce described an isolated ice patch covering the right-hand, southbound lane of the four-lane highway about 200 feet from the driveway and entrance to the Mother Hubbard Restaurant. The totality of the investigation was capable of the fair inference that plaintiff lost control of his car when negotiating this ice patch. Pierce had noticed a similar icy condition on other days before the accident. The "area of the driveway of the Mother Hubbard" was the source of the water in the officer's opinion. The borough police had alerted the State to the problem when icy accumulations had formed on other dates before this accident. Officer Pierce stated:

On various occasions this particular area was considered hazardous by us and we would call the State and request immediate sanding and/or salting of the area, and requests had been made by my part variably [sic] and I don't know as far as whether it was a written request, but I know telephonically there had been some communication

as far as doing something about eliminating this problem because it was recurrent.

At other points in his testimony Pierce stated he saw the ice "quite a few times" and on "numerous occasions." Pierce indicated: "My superiors were aware of the icing problem and had also at various times brought this to the state's attention." He further stated his superiors: "are doing everything they could and they were trying to get somebody to do something about it through the State." The patch of ice could form "any time you have wet conditions." Pierce described the source of the condition in detail as follows:

The water drained from the area of Mother Hubbard's driveway would proceed along the curb for a number of feet, along the curb and then it would come out into the road and eddy, like an eddy. I'm trying to explain it would kind of bubble out in the roadway and for a ways and then go back to the curb. Now, if the conditions were cold enough, this particular area out of the road would then go into a freezing type of condition. Otherwise it would be a wet condition.

Pierce had passed this accident location while on patrol during the night shift hours before the accident. He could not recall the time when he had last passed the area that night. He could not remember whether he noticed the condition within the hours just before the accident and whether he called the condition in to his dispatcher, because "it got to be a routine type of situation, especially during the winter months, and I cannot say I definitely didn't see it or I definitely did." From a "layman's point of view" the area where the water accumulated and the ice formed on the roadway "appeared to be a slight depression." No construction expert's testimony or reports relevant to the construction of the highway were considered on the summary judgment application.

This case involves the interplay of several sections of the Tort Claims Act and raises a novel question concerning its construction and ...

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