On appeal from the Superior Court, Law Division, Bergen County.
Fritz, Furman and Deighan. The opinion of the court was delivered by Furman, J.A.D. Fritz, P.J.A.D. (dissenting).
From summary judgment on motion in favor of the State plaintiffs in the two consolidated actions appeal. Both actions arise from a motor vehicle accident which resulted in four deaths on Route 9W in the Borough of Alpine in Bergen County on the night of October 31, 1978. Decedent Marilyn Bradley was driving northbound when her motor vehicle was struck head-on by a motor vehicle driven by defendant Lindedahl which had crossed the center line after losing control in a stretch of Route 9W known as Walker's Hollow. The other three decedents were passengers in the Bradley vehicle.
Plaintiffs' theory of liability against the State, premised on N.J.S.A. 59:4-2, is for wrongful deaths caused by a dangerous condition of property, the sharp curve on a downgrade at Walker's Hollow where the safe speed for motor vehicles, according to their expert, was only 30 miles per hour, preceded within 200 feet by a 50 mile per hour speed limit sign in an area of poor visibility without highway lights or reflectors and with overgrown foliage and a tree canopy overhead.
Defendant State raises the defense of plan or design immunity under N.J.S.A. 59:4-6. According to the certification of a Department of Transportation engineer, the stretch of Route 9W known as Walker's Hollow has virtually the same "vertical geometrics" affecting motor vehicles traversing the roadway as when designed and built in 1925, when the speed limit was 30 miles per hour. Defendant State also relies upon the defenses of immunity under N.J.S.A. 59:2-3 for the exercise of its governmental discretion in setting a 50 mile per hour speed limit and of immunity under N.J.S.A. 59:4-5, which exempts
public entities from liability "for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices."
On the record in the light most favorable to plaintiffs, as we must view it on appeal from summary judgment against plaintiffs, Route 9W in Walker's Hollow, with its steep curve and poor visibility, was a dangerous condition for motor vehicles travelling at the speed limit of 50 miles per hour, and motorists, such as defendant Lindedahl, unfamiliar with the roadway and the near approach of Walker's Hollow, may have been induced to travel at the unsafe speed of 50 miles per hour in reliance upon the speed limit sign posted only 200 feet away.
At the time of the accident the roadway in Walker's Hollow was substantially as designed and built in 1925 and remained safe for motor vehicles travelling at the 1925 speed limit of 30 miles per hour. We conclude that the State is shielded from liability for the condition of the roadway even though dangerous at 50 miles per hour, by plan or design immunity under N.J.S.A. 59:4-6 which is perpetual, Costa v. Josey, 83 N.J. 49, 54 n. 1 (1980); Comment to this section in Report of the Attorney General's Task Force on Sovereign Immunity (1972).
Plaintiffs' argument goes further: that is, that the State was actively negligent in posting a speed limit sign that "directly contributed to the accident," in combination with the dangerous condition of the roadway in Walker's Hollow for vehicles travelling at 50 miles per hour. Plaintiffs do not dispute that the setting of a speed limit of 50 miles per hour over most of Route 9W was an exercise of governmental discretion. Nor do they advance the arguments that the State was liable for failing to post a lower speed limit sign, such as 30 miles per hour, or a sign warning of a curve and downgrade ahead, arguments foreclosed by N.J.S.A. 59:4-5. Rather, plaintiffs challenge as operational, not discretionary, the State's posting of a 50 mile per hour speed limit sign amounting to a "trap" in close
proximity to the "vertical sag curve" of Walker's Hollow, which was safely negotiable at 30 miles per hour but not at 50 miles per hour. In support of that claim plaintiffs also cite the poor lighting and obstructions to visibility confronting motorists approaching Walker's Hollow and the 25 year history of 4.4 ...