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Brown v. Brown

Decided: June 11, 1981.

ANN MARIE BROWN, PLAINTIFF-RESPONDENT,
v.
ROBERT BROWN, TOWNSHIP OF BERKELEY, AND COUNTY OF OCEAN, DEFENDANTS, AND STATE OF NEW JERSEY, DEFENDANT-APPELLANT. ROBERT BROWN, PLAINTIFF, V. STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION OF THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS, AND TOWNSHIP OF BERKELEY OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz, and Sullivan, Pashman, Clifford, Schreiber, Handler, and Pollock, Justices. For reversal -- None. The opinion of the Court was delivered by Schreiber, J.

Schreiber

In these automobile accident cases we are called upon to consider aspects of the State's immunity for discretionary activities under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 et seq., and the interplay of Evidence Rule 51, prohibiting the admission of remedial measures taken after an accident, with the Act's discretionary immunity provisions, N.J.S.A. 59:2-3.

Plaintiffs, Ann Marie Brown and her husband Robert Brown, in separate actions sued the State of New Jersey for damages for personal injuries that were incurred when, during a rainstorm, the Brown vehicle struck water in a curve on State Highway 9 in Berkeley Township, Ocean County, spun around into the opposite lane of traffic and collided with a pickup truck driven by James Ziemba. The jury found the State responsible. It awarded Mrs. Brown $225,000 and Mr. Brown $25,000. Upon the State's appeal the Appellate Division affirmed. We granted the State's petition for certification. 85 N.J. 467 (1981). We affirm.

I

The State's attack on the jury verdict is predicated on the assumption that the jury could not factually on the basis of the record reach conclusions consonant with the statutory discretionary immunities. Accordingly, we have reviewed the record from the viewpoint of the facts the jury could reasonably have found.

The section of Route 9 involved in this case had been constructed in 1925 and was a two-lane paved highway, one for northbound and the other for southbound traffic. The road curved eastward and in a downhill direction toward the north. The "as built" drawings show that a swale ditch (a ditch which acts as a conduit for water) had been constructed on the west side of the road at the curve. The function of the ditch was to intercept any water runoff from the ground adjoining the road and direct it away from the highway. As constructed the contour of the ditch was such that water draining from the surrounding land would not come across the highway.

Proper maintenance of a swale ditch requires periodic removal of the sand and debris that will accumulate in the swale ditch. Unless that practice is followed the swale will become nonfunctional. When Herman Rich, a civil engineer with extensive experience in the highway and traffic field, examined the road in October 1975, four months after the accident, he found the originally installed swale ditch had disappeared, the accumulated silt and debris having obliterated it. Because of the absence of the ditch, water flowed across the highway pavement in the area of the curve from west to east. During a heavy rainfall the body of water pushed ahead by a vehicle could become deep enough to cause hydroplaning, a phenomenon in which the front tires are elevated by the water and lose contact with the pavement. When that happens, steering control is lost, as Mr. Brown lost it about 11 a.m. on June 12, 1975 when his station-wagon struck the body of water that had accumulated on the road after running off from the adjacent land during a heavy rain.

Knowledge of the dangerous condition that existed at this point in Route 9 and control over that part of the roadway were conceded by the State. The State had been aware long before the accident that this condition arose during rainstorms. On February 14, 1974, the Traffic Safety Officer of Berkeley Township had written to R. Lightbody, Chairman of the Ocean County Traffic Safety Committee, in regard to this "very hazardous

condition on a particular section of Route 9 which [had] existed for a number of years." He indicated that the problem was caused by the water runoff across the roadway when it rained "which tend[ed] to make all vehicles hydroplane while passing through it." He enclosed 16 accident reports related to the wet roadway over a span of three years, 1971 through 1973. Mr. Lightbody forwarded this information in the form of an accident collision diagram with a letter dated April 2, 1974 to Robert J. Nolan, Chief of the Bureau of Traffic Engineering of the Department of Transportation.

A Senior Engineer in the Department conducted an investigation. In a memo dated June 27, 1974, he wrote that he had met with the Berkeley Township Police Chief and had been advised of the water accumulation at the curve of the road. He had viewed the scene and observed that the southerly approach to the curve had a one percent downgrade. It seemed to him that when combined with the super-elevation of the curve, water would flow across Route 9 at the curve. He recommended warning signs be installed and further investigation be undertaken to determine what could be done to provide better drainage.

On June 27, 1974 Mr. Lightbody was advised by Mr. Nolan's office that it had recommended installation of "Slippery When Wet" signs and that the matter had been forwarded to the Bureau of Surface Design "to determine what steps, if any, may be taken to improve drainage along the section of Route U.S. 9." On the same day, the Supervising Engineer of the Bureau of Traffic Engineering sent to the Chief of the Bureau of Surface Design, Edwin Dayton, an interoffice memo in which he wrote:

We investigated this matter and it is our opinion that rain water flowing across Route U.S. 9 at the curve results in vehicles hydroplaning through the curve. It would be appreciated if you could look into this matter and determine what action, if any, could be taken to provide better drainage along this section of roadway.

On July 29, 1974 a Project Engineer wrote to Mr. Dayton recommending "that we construct a well-defined swale . . . .

This swale should be such as to intercept and direct waters along the edge of the high side shoulder." Mr. Dayton added 15 jobs including this one to a list dated March 26, 1974 of 97 other projects. He did nothing about expediting this work because "it was nothing that was of great importance at that particular point in time." On August 1, 1974, this project was submitted along with 14 others for scheduling to John Datz, the Supervising Engineer in Area Four which encompassed eight counties including Ocean. No action was taken at that time to schedule construction of the swale.

On May 15, 1975 Dayton requested that the various area engineers review the projects and provide him with a priority listing. At that time the Supervising Engineer had a list of 23 projects. He listed the Route 9 swale ditch as number 17. He testified that he did not consider this "to be of an emergency" nature. He explained he evaluated the projects and considered whether other projects were in the same general area or were already under way. Datz also said that these priorities can be changed if "we find any problem in the priority assignment."

In an office memo dated July 7, 1975, approximately three weeks after the accident, the Chief Engineer in the design section, Frank Parker, noted the drainage situation had been investigated "approximately a year ago." He referred to the Project Engineer's July 29, 1974 report and commented that the recommendation had "not been implemented in any way."

On August 15, 1975 Mr. Parker requested a sketch for the proposed swale. On the same day, a request was made to obtain existing cross sections every 50' and topography along Route 9 as indicated on the "as built" plan, which depicted the original swale. On August 20, 1975 Edwin Dayton also requested the Supervising Engineer prepare a sketch for construction of the proposed swale. A follow-up request was made on September 26, 1975.

Prints for the construction of a swale were completed September 30, 1975. In a memo of October ...


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