On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Michels and Dreier. The opinion of the court was delivered by Dreier, J.A.D.
Codefendants Conti Construction Co., Inc. and Robert A. Weeks appeal, by leave granted, from an interlocutory order of the Law Division dismissing the complaints and crossclaims against defendant County of Morris. This case raises the issue of a governmental unit's responsibility for the negligent placement and maintenance of a traffic control signal under the Tort Claims Act, N.J.S.A. 59:1-1 et seq.
Defendant Weeks, a Conti employee, was traveling south on Ricker Road in the Borough of Kinnelon, Morris County, when his van struck a car heading west on Kinnelon Road. As a result of the accident plaintiff Donald Shuttleworth was injured and his wife, a passenger in his car, was killed. Ricker Road was controlled by a stop sign placed by the county, but which,
for the purposes of this discussion, we must assume was obscured by a bush so that it could not be seen until a driver was within a few feet of the intersection. Defendant Weeks claims that he was traveling at a speed of 25 miles per hour and applied his brakes when he saw the stop sign, but too late to avoid entering the intersection. Ricker Road had been the through street for the past several intersections and was controlled by a stop sign only where it crossed Kinnelon Road, a county highway. Weeks further testified that this was the first time he had traveled on this road and that he was unfamiliar with the area. Both Conti's and Weeks' expert and a Kinnelon policeman confirmed that the sign was obscured in the manner claimed by Weeks.
The county acknowledged that it installed the stop sign and that it was responsible for maintaining it. Further, the county's records showed that a sign crew replaced a post on the sign approximately five and one-half months before the accident, and that after the accident the sign was moved and two advance-warning signs were installed as well as a stop sign on the left-hand side of the road "to help improve visability." The county road superintendent stated in depositions that the county not only maintained the signs but trimmed trees, shrubs or bushes in the immediate vicinity of stop signs in order to improve visibility. There was no record of such action having been taken here, although the offending bush was on county-owned land.
On these facts Morris County moved for summary judgment on the basis of N.J.S.A. 59:4-5 which reads:
Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide ordinary traffic signals, sign, markings or other similar devices.
Although this statute contains no express provision making it subject to the general standards of N.J.S.A. 59:4-2 (the "palpably unreasonable" test), the trial judge made apparent reference to that test, but then held as a matter of law that the test could not have been met on the facts of this case. ("[T]his
Court finds on the evidence as a matter of law that the minds of reasonable people could not differ, that the condition which existed at the intersection was not palpably dangerous, was not a palpably unreasonable condition.") We disagree with the trial court's analysis and reverse.
Prior to the Tort Claims Act the case law provided immunity for the discretionary municipal action of determining whether or not to place ordinary traffic control devices at a particular intersection. Hoy v. Capelli, 48 N.J. 81 (1966). A different rule attached where the challenged municipal action was the placing of emergency traffic control devices and a lower level discretion was being reviewed, namely, how to allocate resources in the face of competing demands to meet a perceived or acknowledged danger, in which case the municipal action would be protected "unless it is palpably unreasonable." Bergen v. Koppenal, 52 N.J. 478, 480 (1968). These standards were carried forward into the Tort Claims Act ...