On a rehearing of the judgment of this Court dated May 17, 1979 and reported at 79 N.J. 535 (1979). (See
For reversal and remandment -- Chief Justice Wilentz and Justices Jacobs, Pashman and Schreiber. For affirmance -- Justices Clifford, Handler and Pollock. The opinion of the Court was delivered by Schreiber, J. Clifford, J., dissenting. Justices Handler and Pollock join in this opinion.
Joseph Costa, as general administrator and administrator ad prosequendum of the estates of Edward J. Flocco, Jr. and his wife Phyllis Flocco, instituted a wrongful death action against the New Jersey Department of Transportation (Department). He charged the Department with having negligently maintained and repaired the center barrier separating the eastbound and westbound traffic on Route 4 in Teaneck, N.J., so that a dangerous condition existed in the roadway. He alleged that as a result the vehicle of the codefendant Albert J. Josey crossed over the barrier and collided with the Floccos' car causing their deaths.
The trial court granted the Department's motion for summary judgment, holding defendant immune under N.J.S.A. 59:4-6 of
the New Jersey Tort Claims Act. The Appellate Division affirmed. 160 N.J. Super. 1 (App.Div.1978). We granted plaintiff's petition for certification. 78 N.J. 335 (1978). The members of the Court being equally divided, the judgment was affirmed. 79 N.J. 535 (1979). We granted plaintiff's petition for rehearing and heard reargument. 81 N.J. 294 (1979). We now reverse essentially for the reasons stated in the dissenting opinion. 79 N.J. at 536.
In considering the Department's motion for summary judgment, all parties have assumed (1) that the dividing barrier in the roadway was in a dangerous condition at the time of the injury; (2) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; (3) that the Department had notice of the dangerous condition a sufficient time prior to the injury to have taken measures to correct it, and (4) that the failure to take such action was palpably unreasonable. See N.J.S.A. 59:4-2. The Department contends that despite the hazardous condition of its road it is immune from responsibility under N.J.S.A. 59:4-6. That section immunizes a public entity from liability for an injury caused by the plan or design of public property "either in its original construction or any improvement thereto," where the plan or design has been approved in advance of construction by a public employee exercising discretionary authority to give such approval.
The Department's defense is that the initial design contemplated that the divider would be lowered by subsequent resurfacing of the road. We agree with the conclusion in the dissenting opinion, 79 N.J. at 542-543, that there are material factual disputes over whether the original plan or design of the road contemplated that resurfacing the pavement would reduce the height of the dividing barrier and cover its lower part. The Department relies principally on the affidavit of James Schuyler, containing his recollections of conferences held in 1955, to determine why the bottom four inches of the barrier were [83 NJ Page 53] designed as they were. Reliance upon an affidavit reflecting a recollection of events which occurred more than 20 years before cannot justify acceptance of the accuracy of the statement at least in the absence of cross-examination. Such an affidavit does not and cannot furnish the necessary factual support for summary judgment. Extreme caution should be exercised before entering a judgment against a party who was not present, particularly in the absence of any objective evidence of what occurred at those meetings, cf. Bilotti v. Accurate Forming Corp., 39 N.J. 184, 193 (1963), or testimony which the opposing party had had the opportunity to test by cross-examination, cf. Beadling v. Sirotta, 39 N.J. 34 (1962). Nor are we satisfied on the basis of the moving papers that the subsequent plans for repairing the road constituted an "improvement" to the original construction as distinguished from maintenance. We remain mindful of the principle that on a motion for summary judgment, the movant must exclude any reasonable doubt as to the existence of a factual issue. Ruvolo v. American Casualty Co., 39 N.J. 490, 499 (1963).*fn1
The Department also argues that it is entitled to immunity under N.J.S.A. 59:2-3. That section reads as follows:
a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity;
b. A public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;
c. A public entity is not liable for the exercise of discretion in determining whether or [ sic ] to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.
Subdivisions (b), (c) and (d) of N.J.S.A. 59:2-3 do not by their terms cover the action taken here. Neither legislative nor judicial action is implicated (subdivision (b)); nor is discretion in determining whether to provide the funds necessary for the construction or maintenance of the road (subdivision (c)); nor does defendant suggest that a choice among competing demands for existing resources is involved (subdivision (d)).
Subdivision (a) of N.J.S.A. 59:2-3 states broadly that a public entity is not liable for an injury resulting from the exercise of judgment or discretion. However, subdivision (a)
should be read in conjunction with the areas of protected discretion expressly outlined in subparagraphs (b), (c) and (d). All the subsections should be read consistently, each with respect to the subject of the others. These subparagraphs are signposts to understanding the nature of immunized discretionary determinations. They suggest that the "exercise of . . . discretion" in N.J.S.A. 59:2-3(a) refers to actual, high-level policymaking decisions involving the balancing of competing considerations. Such decisions have been traditionally entrusted to coordinate branches of government, and courts, utilizing standard tort principles, are ill-equipped to interfere with them. These discretionary determinations likely include such decisions as "whether to utilize the Department's resources and expend funds for the maintenance of [a] road; whether to repair the road by patching or resurfacing; [and] what roads should be repaired . . .." Costa v. Josey, 79 N.J. at 545. Once it is determined that a maintenance program involving resurfacing will be undertaken, however, the government will ordinarily be held to the standard of care set forth in N.J.S.A. 59:4-2. Although the exercise of some discretion may still be involved (e.g., the transportation planners may choose one resurfacing plan over another), the immunity rule will protect only basic policy determinations. Such a construction would be in harmony with subparagraphs (b) through (d).
A task force selected by the Attorney General drafted the New Jersey Tort Claims Act. Its Report on Sovereign Immunity, published in May 1972, contained substantial explanatory comment. It is fitting, therefore, that we look to that comment in searching for the legislative intent of N.J.S.A. 59:2-3. The Comment explains that this provision was intended to codify existing law. It cites as examples, Willis v. Dep't of Conservation & Economic Development, 55 N.J. 534 (1970), Amelchenko v. Freehold Borough, 42 N.J. 541 (1964), and Bergen v. Koppenal, 52 N.J. 478 (1968). All three cases, along with Fitzgerald v.
Palmer, 47 N.J. 106 (1966), support the principle that only high-level policy determinations are entitled to immunity.
Fitzgerald and Amelchenko both involved high-level policy choices. In Fitzgerald we rejected a claim that the Highway Department, in constructing a highway overpass, should have built a fence to prevent persons from throwing objects on cars passing below. This was because matters such as "whether a road should have four or six or eight lanes," or should have "dividers, or circles or jughandles for turns, or traffic lights, or traffic policemen," or a certain speed limit ...