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Cobb v. Waddington

Decided: October 25, 1977.

GEORGE J. COBB AND KATHLEEN COBB, PLAINTIFFS-APPELLANTS,
v.
JOHN A WADDINGTON, DIRECTOR OF NEW JERSEY DIVISION OF MOTOR VEHICLES; FRASSETTO CONSTRUCTION COMPANY, INC., A NEW JERSEY CORPORATION; THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Matthews, Crane and Antell. The opinion of the court was delivered by Antell, J.A.D.

Antell

This action arises from an automobile accident occurring on the night of June 5, 1974. The complaint alleges that plaintiff George J. Cobb suffered personal injury when his car was forced off the roadway by an unidentified motor vehicle into collision with certain traffic channelization barricades, resulting in his head being struck by a length of timber which penetrated his windshield. Recovery was sought from the New Jersey Department of Transportation (Department) and the Frassetto Construction Co. (Frassetto) based upon their selection and placement of the barricades on the highway. Plaintiffs also sued the Director of the Division of Motor Vehicles (Director) for the alleged negligence of the unidentified driver. N.J.S.A. 39:6-78.

The accident happened at the site of certain road construction work being performed by Frassetto under a contract with the Department. In the course thereof Frassetto placed the barricades along Route 35 between the concrete center divider and the left-hand lane of travel. The devices were of a design referred to as Type IIIA. Plaintiffs claim that the barricades should have been Type IIIC and that the use of Type IIIA under the circumstances constituted negligence which proximately contributed to the accident and the plaintiff's injuries. The choice of barricade and their configuration on the highway were decided upon by the Department and carried out by Frassetto in accordance with the Department's specifications contained in the contract.

Summary judgment was entered in favor of the Department and Frassetto for lack of proximate cause and upon the ground of governmental immunity. Plaintiffs appeal therefrom,

as well as from the judgment entered after the jury trial in favor of the Director on the ground of trial error.

The following provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. are germane to the question of governmental immunity:

N.J.S.A. 59:1-2. Legislative declaration

The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carry out the above legislative declaration.

N.J.S.A. 59:2-1. Immunity of public entity generally

a. 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 a public employee or any other person.

b. Any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to ...


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