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Costa v. Josey

Decided: May 17, 1979.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 160 N.J. Super. 1 (1978).

For affirmance -- Justices Mountain, Clifford and Handler. For reversal -- Chief Justice Hughes and Justices Pashman and Schreiber. Schreiber, J., dissenting. Chief Justice Haghes and Justice Pashman join in this opinion.

Per Curiam

The members of the Court being equally divided, the judgment of the Appellate Division is affirmed.

SCHREIBER, J., dissenting. This case projects for this Court's review for the first time an interpretation of those provisions in the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., which immunize public entities from liabilities arising out of dangerous property conditions due to their plan or design. The property is a state-owned highway and the particular exemption provisions are N.J.S.A. 59:4-6 and N.J.S.A. 59:2-3.

Joseph Costa, as general administrator and administrator ad prosequendum of the estates of Edward J. Flocco, Jr. and his wife, Phyllis Flocco, had instituted a wrongful death action against Albert J. Josey and the New Jersey Department of Transportation. Edward J. Flocco and his wife were killed instantly in an automobile accident on November 11, 1974 on Route 4 in Teaneck. They were survived by their five daughters.

Josey, driver of the other vehicle involved, defaulted. The Department of Transportation's motion for summary judgment was granted. The Appellate Division affirmed, 160 N.J. Super. 1 (1978), and we approved plaintiff's petition for certification. 78 N.J. 335 (1978).

Numerous depositions, affidavits, reports, and drawings had been submitted to the trial court. Following the traditional guideline that the facts and inferences should be viewed favorably from the plaintiff's point of reference, Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954), I find that the following factual pattern emerges.

On November 11, 1974 at 12:30 A.M., Mr. and Mrs. Flocco were proceeding westbound on Route 4 in Teaneck. At the same time Albert Josey was driving at about 50 miles per hour, the speed limit, in the eastbound lanes. Another vehicle nicked Josey's car on the right side, causing it to sway sharply to the left and strike the concrete divider which separated the east and westbound lanes. Josey lost control of his car which scraped along the divider, went up in the air, and landed in the westbound lanes. His car then collided head-on with the Floccos'.

The crux of the case against the Department of Transportation concerned the barrier dividing the roadway. It had been initially installed in 1956 in accordance with plans of the Chief Engineer of the Department. The barrier had a 30" wide base and a height of 19". The bottom 3" on each side of the barrier were perpendicular to the base; then followed a 1" transition distance after which the concrete curved in a gradual concave manner to the top. The distance across the top was 7". Thus, the 30" base was reduced to 7" at the top, the reduction occurring over a 16" distance. The distance from the bottom edge of the barrier on each side was approximately two feet from the edge of the left lane.

In 1962 the Department of Transportation resurfaced the road with 2-I/2" being added to the surface next to the barrier. In 1974 the Department's maintenance personnel resurfaced the road again with 1" being added to the surface next to the barrier. These resurfacings were ordered by the Assistant Engineer in the Department of Transportation, after he had made personal inspections, in which he had observed the roadway was worn. The resurfacings eliminated

the 3" facing on the barrier, so that the curvature on the side of the barrier commenced at road level and the overall height of the barrier was reduced to approximately 15". In 1975 the barrier was replaced by one 32" high.

The primary purpose of the divider was to separate the east and westbound traffic. Vehicles which struck the barrier would be redirected into their proper lane of traffic. When initially designed in 1955, no engineering standards or practices governed the height of road dividers. Acceptable designs subsequently called for heights greater than 19" and by the late 1960's good engineering practice called for such barriers to be 29"-32".

At the very time when the Department of Transportation was reducing the height of the barrier to 15", good engineering practice was calling for elevating its height to 32". Furthermore, elimination of the facing increased the risk of a vehicle vaulting over the barrier. Because its wheels would first come in contact with the curved concrete, the car would tend to travel upward, rather than caroming off the original vertical facing. The State expert's report explained that "[t]he use of low vertical faces eliminates the possibility of a vehicle vaulting (jumping or 'flying over') the barrier." The report of plaintiff's expert had a similar exposition:

A wheel rolling onto the lower part of this curved surface receives an upward thrust, as on a ramp, causing the left front corner of the vehicle to rise * * *. At higher speeds, or where the angle of incidence between the tire and barrier is high, the upward thrust has been sufficient to cause the vehicle to jump over.

The Department of Transportation argued on the motion before the trial court that the Department was entitled to a judgment of dismissal because it was immune under N.J.S.A. 59:4-6 (plan or design immunity) and N.J.S.A. 59:2-3 (discretionary activity immunity), that the Department's negligence was not a proximate cause of the accident, and that plaintiff had failed to show a dangerous condition

existed. The trial court bottomed its decision on the plan or design immunity of N.J.S.A. 59:4-6. The Appellate Division's affirmance was grounded primarily on that section, although ...

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