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Costa v. Josey

Decided: May 22, 1978.


On appeal from Superior Court, Law Division, Bergen County.

Allcorn, Horn and Furman. The opinion of the court was delivered by Horn, J.A.D.


Shortly after midnight on November 11, 1974 Edward J. Flocco, Jr., owner and operator of an automobile, and his wife Phyllis, a passenger in the car, while proceeding in a westerly direction on State Highway 4 in the vicinity of the Webster Avenue bridge in Teaneck, were killed as the result of a collision with an automobile driven by one Albert J. Josey that had come over from the opposite side of the highway.

At said time and place Route 4 was a four-lane highway having two lanes and a shoulder for each direction, east and west. Opposing traffic lanes were separated by a concrete barrier about 15 inches high, 6 inches wide at the top and about 24 inches wide at the base. The face of each side was concave.

Josey had been proceeding in an easterly direction on the eastbound side of Route 4 in the outside or slower lane, at

a speed estimated by him at 50 miles an hour, the area speed limit, but estimated by a witness, Neil Bookspan, at 60 to 65 miles an hour. According to Josey, an unidentified vehicle started to move toward his car, so that he, in turn, directed his car to the inside or faster lane, to avoid a collision with the unidentified vehicle. In so doing he says that he struck the divider: "I didn't have complete control [of the car]. But, as I rode down a little ways more, it just -- something just hit, bumped, and then the car went right over in the air."

Bookspan's version given to the police was that he first saw the Josey car with sparks being emitted underneath the front of the vehicle at the driver's seat. The car at this time was astride the line dividing the "fast and slow" lanes in the eastbound side. He then saw the car through his rear-view mirror climb up over the divider and it "actually flew in the air over the fast lane in the westbound lanes." It struck the Flocco car in the left front.

The investigating police officers recorded that the weather was clear and dry; that physical evidence found at the scene revealed that the front left bumper of Josey's automobile struck the divider on the eastbound side, leaving tire marks for 30 feet on the divider. It then straddled the divider for approximately 50 feet before going over to the westbound side of the highway, and then scraped the west side of the divider for approximately 30 feet while heading east. It continued east for 64 feet into the right lane of the westbound side of the highway, where it struck the Flocco car, forcing the latter backward about 120 feet "into the bridge [abutment?]." The Josey vehicle finally came to rest about 100 feet east of the bridge in the left, westbound lane.

Plaintiff Joseph Costa, as general administrator and administrator ad prosequendum of the respective estates of Mr. and Mrs. Flocco, after compliance with the notice provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:8-8, instituted an action for the wrongful deaths of his decedents

against Josey and the State of New Jersey, Department of Transportation (Department), on the ground that their negligence was a proximate cause of the collision.

Josey failed to respond to the action and a default was entered against him. The State duly answered and cross-claimed for contribution. After the parties were afforded full discovery the State successfully moved for summary judgment on the ground that it was immune from liability for the conduct attributed to it as a basis of liability to plaintiff. Plaintiff then appealed.

Plaintiff's claim that the State is liable is essentially posited upon a claim of the latter's negligence in relation to the barrier or divider which separated the opposing lanes of traffic.

Route 4 was constructed in the early 1930s with a reinforced concrete surface. In 1955 the State Highway Engineer and the State Highway Commissioner (then Dwight R. G. Palmer) approved plans for construction of a 19-inch concrete center divider on Route 4 in the Township of Teaneck. In 1956 the divider was constructed in accordance with the plans.

According to defendant, the divider when installed in 1956 was 19 inches high and included a 4-inch base with vertical facing which provided for future resurfacing of the adjacent road surface during the useful life of the divider. The vertical facing also acted to provide some warning to alert drivers who inadvertently contacted it at a slight angle. In 1962 the Department made the decision to resurface 1.098 miles of Route 4 in Teaneck. A design was created and plans were approved by the State Highway Engineer and the State Highway Commissioner. The resurfacing was accomplished according to the approved plans. Specifically, the resurfacing project placed 2 I/2 inches of fine aggregate bituminous concrete on the concrete surface in the area which became the scene of the recited accident. This application reduced the 4-inch divider base to approximately 1 to 1 I/2 inches of vertical facing.

In 1974 Bernard Olszonewski, an assistant engineer with the Bureau of Maintenance of the Department and the coordinator of the Department's statewide resurfacing program, with authority to review applications for each region in the State for resurfacing and to determine which sections of the state highways should be resurfaced, created resurfacing plans and specifications*fn1 which thereafter were approved by the Department's Director of Engineering and Operations, and the Chief Engineer, Construction and Maintenance. These plans included the resurfacing of the area in question for the second time since 1956. When concluded in 1974, before the described tragic accident, the resurfacing, approximately one inch in thickness at the divider on ...

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