Decided: December 26, 1979.
PHYLLIS SCHRIGER AND PAUL SCHRIGER, PLAINTIFFS-RESPONDENTS,
ALAN ABRAHAM AND WALTER ALBOHM, DEFENDANTS, AND STATE OF NEW JERSEY AND STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, DEFENDANTS-APPELLANTS
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Michels and Larner.
[174 NJSuper Page 6]
Pursuant to the leave of this court, defendants State of New Jersey and its Department of Transportation (hereinafter sometimes collectively referred to as the State) appeal from the denial of their motion for summary judgment in this personal injury negligence action.
Plaintiff Phyllis Schriger instituted this action to recover damages for personal injuries she sustained in an automobile accident which occurred on Route 4 in Teaneck, New Jersey. Plaintiff was driving her car in a westerly direction on Route 4 when a car being driven in an easterly direction by defendant Alan Abraham jumped and crossed the center divider or barrier separating the east- and west-bound lanes of traffic and struck her car. Immediately thereafter plaintiff's car was struck in the rear by a car being driven by defendant Walter Albohm. Her husband sued per quod.
It is uncontroverted that the center divider or barrier on Route 4 which the Abraham car crossed was constructed in 1956 at a height of 19" according to plans approved by the State Highway Commissioner. The lower four inches of the barrier in place on the day of the accident was designed for future resurfacing. The design anticipated that the adjacent road surface would become worn, and that it would become necessary to resurface it during the life of the barrier. In 1968 the adjacent roadway was resurfaced in accordance with plans approved [174 NJSuper Page 7] by the State Highway Engineer and the Commissioner of Transportation. The area of the accident was resurfaced with 3" of bituminous concrete and after the 1968 resurfacing the barrier had a height of 16". Plaintiffs originally contended in the complaint filed in this action that the resurfacing of Route 4 reduced the height of the barrier relative to the surface of the roadway and thereby caused the barrier to be in violation of normal safety standards and inadequate for the protection of the public. They claimed that as a result the State, through its Department of Transportation, negligently operated and maintained the barrier on Route 4 in a dangerous and hazardous condition, and that such negligence was the proximate cause of Abraham's car crossing the barrier and colliding with plaintiff's car.*fn1 Plaintiffs further claimed in answers to interrogatories that the State was negligent in the construction as well as the maintenance of the barrier.*fn2
[174 NJSuper Page 8]
The State subsequently moved for summary judgment, contending that it was immunized from liability pursuant to the New Jersey Tort Claims Act (N.J.S.A. 59:1-1 et seq.) for the damages sustained by plaintiffs. Specifically, the State argued that it could not be held liable under N.J.S.A. 59:2-3(a) and (b) for failing to replace the 19" barrier with a higher 32" barrier prior to the accident, since the decision not to replace the barrier constituted the exercise of discretion. The State also contended that under N.J.S.A. 59:4-6 it could not be held liable because the barrier was constructed in accordance with approved plans and designs. The trial judge rejected these arguments and denied the motion, holding that, in the circumstances of this case, the Tort Claims Act did not provide immunity to the State as a matter of law. We disagree and reverse.
Under the provisions of the Tort Claims Act (N.J.S.A. 59:1-1 et seq.), the State and its Department of Transportation are not liable for injuries
This section applies even if some other provision of the Tort Claims Act otherwise would render the State liable to plaintiffs for the damages they sustained. N.J.S.A. 59:2-1(b). Thus,
[174 NJSuper Page 9]
although N.J.S.A. 59:4-2 holds public entities responsible in certain circumstances for the injuries caused by the dangerous condition of their property, the State, nevertheless, is rendered immune in the instant case by N.J.S.A. 59:4-6. Plaintiffs' argument that the State should have taken affirmative action to remedy the alleged hazard sooner, and that such negligent failure to act is not protected by the statute, is without merit. Costa v. Josey , 160 N.J. Super. 1 (App.Div.1978), certif. granted 78 N.J. 335 (1978). See, also, Rodgers v. Passaic Housing Auth. , 139 N.J. Super. 569 (App.Div.1976), certif. den. 71 N.J. 337 (1976).
The result we reach here is in accord with our recent decision in Costa v. Josey, supra. There, we affirmed a summary judgment in favor of defendants, the State and its Department of Transportation, in an action brought to recover damages under our Wrongful Death Act where decedent had been killed when his car was struck by a car travelling in the opposite direction which had jumped the barrier on Route 4 in Teaneck. In upholding the grant of summary judgment we rejected substantially the same arguments that have been made here and held that the State was immune from liability by virtue of both N.J.S.A. 59:2-3 and N.J.S.A. 59:4-6. We see no sound reason or basis to depart from this holding.
Accordingly, the order of the Law Division denying the State's motion for summary judgment is reversed and the matter is remanded to the trial court with direction for entry of judgment in favor of the State and its Department of Transportation.