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Kolitch v. Lindedahl

Decided: July 22, 1985.

STEPHEN KOLITCH, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ALAN KOLITCH, A MINOR, DECEASED, PLAINTIFF-RESPONDENT,
v.
STEFAN R. LINDEDAHL, ESTATE OF MARILYN BRADLEY AND JOHN A. BRADLEY, DEFENDANTS, AND STATE OF NEW JERSEY, DEFENDANT-APPELLANT. JOHN A. BRADLEY, AS ADMINISTRATOR AD PROSEQUENDUM FOR THE HEIRS-AT-LAW OF PHILIP M. BRADLEY, DECEASED, DAVID M. BRADLEY, DECEASED, AND MARILYN B. BRADLEY, DECEASED; AS ADMINISTRATOR OF THE ESTATES OF PHILIP M. BRADLEY, DECEASED, DAVID A. BRADLEY, DECEASED, AND MARILYN B. BRADLEY, DECEASED; AND INDIVIDUALLY, PLAINTIFF-RESPONDENT, V. STEFAN R. LINDEDAHL, DEFENDANT, AND STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORATION, DEFENDANT-APPELLANT



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 193 N.J. Super. 540 (1984).

For reversal -- Justices Clifford, Pollock, O'Hern and Garibaldi. For Affirmance -- Justice Handler. The opinion of the Court was delivered by Clifford, J. O'Hern, J., concurring. Handler, J., dissenting. O'Hern, J., concurs in the result.

Clifford

These consolidated actions seek recovery on account of the wrongful deaths of plaintiffs' decedents, resulting from an automobile accident. The collision occurred on a State highway. The issue is whether the State is liable under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the Act). The trial court gave summary judgment in favor of the State, and the Appellate Division reversed. Kolitch v. Lindedahl, 193 N.J. Super. 540 (1984). Because of a dissent in the Appellate Division, the State's appeal is here as of right. R. 2:2-1(a). We reverse.

I

On October 31, 1978, at approximately 9:30 p.m., Stefan Lindedahl was driving his automobile in the southbound lane of Route 9W in Alpine, New Jersey. As Lindedahl entered a section of the roadway known as Walkers Hollow, his automobile went out of control and collided with another driven by Marilyn Bradley. Riding with Mrs. Bradley were her two sons, David and Philip, and a young neighbor, Alan Kolitch. All of the occupants of the Bradley car were killed.

Stephen Kolitch filed a wrongful death action on behalf of Alan in the Law Division, Bergen County, which was consolidated with a similar suit by John Bradley on behalf of Mrs. Bradley and the two boys. The complainants sought damages for various acts of negligence from Lindedahl, the Borough of

Alpine, the County of Bergen, and the State of New Jersey, i.e., the State Department of Transportation.*fn1

Plaintiffs claim that certain features of the roadway at the accident site amount to a dangerous condition within the Act's general liability section, N.J.S.A. 59:4-2. That section reads in full as follows:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

The asserted "irregularities" of the highway begin with those features that affect the sight distances, such as foliage, poor lighting, and worn curbing, but do not end there.*fn2 At Walkers Hollow the road is characterized by a "vertical sag curve." This is a technical term for a design in which, as applied to a roadway, a downgrade is followed by an upgrade, and the road surface between the two itself contains a curve along the horizontal plane. Pursuant to N.J.A.C. 16:28-1.123, the speed limit in the area of Walkers Hollow is 50 miles per hour, although when the road was originally built in 1925, the limit was considerably lower, namely, 30 miles per hour. Aside from this increase in the speed limit, the highway is unchanged from the way it appeared when it was first constructed. The core of

plaintiffs' argument is that the posting of a 50 miles-per-hour sign within 200 feet of the curve created a dangerous condition of the roadway, or, to use their language, a "death trap" for unwary drivers.*fn3

At the trial level the State asserted its immunity under various provisions of the Act, including plan and design immunity, N.J.S.A. 59:4-6; discretionary immunity, N.J.S.A. 59:2-3; and immunity for failing to provide ordinary traffic signals, N.J.S.A. 59:4-5. It also denied liability for having failed to post emergency signals under N.J.S.A. 59:4-4, and argued that its activities did not result in a dangerous condition of the roadway under N.J.S.A. 59:4-2. More specifically, the State's position is that it cannot be held liable for the posting of a sign that does nothing more than inform the travelling public of the correct limit. The State also asserts that the setting of the limit in the first instance is a discretionary function and therefore protected under N.J.S.A. 59:2-3(b), which states: "[a] public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature." The gist of the State's contention, then, is that it cannot be a tort for a public entity or employee to inform the public of a duly promulgated discretionary determination.

The trial court concluded that the various immunity provisions of the Act were dispositive of plaintiffs' claims. On appeal the Appellate Division agreed with the State on its plan and design immunity, but reversed, over a dissent by Judge Fritz, on the issue of whether a dangerous condition had been created under the Act's general liability section, N.J.S.A. 59:4-2. The court below reasoned that the State would not be immune from liability for a dangerous condition of the roadway were a jury to determine that such a condition existed as the result of an operational (as opposed to a planning-level) decision to post the speed-limit sign within close proximity to the curve itself. Judge Fritz dissented on the limited issue of whether liability could be imposed under N.J.S.A. 59:4-2.

II

Although immunity under the common law has been cut back or in some jurisdictions eliminated completely, this Court made clear in Willis v. Department of Conservation & Economic Dev., 55 N.J. 534 (1970), that actions of a legislative or judicial nature should still be immune from suit.*fn4 As the Court there stated:

It is time for the judiciary to accept * * * responsibility and adjudicate the tort liability of the State itself. * * * [W]e will not attempt to express an ultimate doctrine; the constituent principles will be better evolved out of the realities of specific cases. But we do emphasize that the State will not be liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial cast, nor generally with respect to decisions calling for the exercise of official judgment or discretion.

[ Id. at 540.]

Following the decision in Willis the Attorney General completed an exhaustive review of the law in this area and made extensive recommendations for change.*fn5 The New Jersey Tort Claims Act, which stems from these recommendations, became effective on July 1, 1972, and carries the following legislative declaration:

[I]t is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carrying out the above legislative declaration.

[ N.J.S.A. 59:1-2.]

The statute is therefore unmistakably clear in providing that liability on the part of the State cannot be imposed unless consistent with the entire Act itself. See Bell v. Bell, 83 N.J. 417 (1980); McGowan v. Borough of Eatontown, 151 N.J. Super. 440 (App.Div.1977).

III

To recover under N.J.S.A. 59:4-2, the Act's general liability section, a plaintiff must show that the property was in a dangerous condition at the time of the injury; that the injury was proximately caused by the dangerous condition; that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred; and that a public employee created the dangerous condition or that the public entity had notice in time to protect against the condition itself. Brown v. Brown, 86 N.J. 565, 575 (1981); N.J.S.A. 59:4-2. Additionally, there can be no recovery unless the action or inaction on the

part of the public entity in protecting against the condition was "palpably unreasonable," a term nowhere defined in the Act.

For today's purposes we accept what was stated in Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App.Div.1979), in which the court differentiated the term "palpably unreasonable" from ordinary negligence:

We have no doubt that the duty of ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff.

We conclude that the term implies behavior that is patently unacceptable under any given circumstance. As one trial court has suggested, for a public entity to have acted or failed to act in a manner that is palpably unreasonable, "it must be manifest and obvious that no prudent person would approve of its course of action or inaction." Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div.1977), rev'd on other grounds, 160 N.J. Super. 497 (App.Div.1978), aff'd o.b., 79 N.J. 547 (1979); see also H. Margolis and R. Novack, Tort Claims Against Public Entities 55 (1984) (discussing Williams and Polyard). Moreover, the burden of proof with regard to the palpable unreasonableness of the State's action or inaction is on the plaintiff in a case of this type. Fox v. Township of Parsippany-Troy Hills, 199 N.J. Super. 82 (App.Div.), certif. den., N.J. (1985); H. Margolis & R. Novack, supra, at 54; Comment, "The N.J. Tort Claims Act: A Step Forward?", 5 Seton Hall L.Rev. 284, 294 (1974).

Of the four essential elements of the plaintiffs' cause of action, only one, the existence of a dangerous condition, was discussed in any detail by the courts below. The term itself is defined in N.J.S.A. 59:4-1, which states:

"Dangerous condition" means a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

Moreover, courts have defined a "substantial risk" as "one that is not minor, trivial or insignificant." See Polyard v. Terry, supra, 160 N.J. Super. at 509. In Polyard, the Appellate

Division further stated that "[e]ach case where the issue arises must be pragmatically examined by the judge, to determine whether the particular highway irregularities were such that reasonable minds could differ as to whether they manifested that the highway was in a dangerous condition." Id. at 510.

Applying the foregoing principles to this case, we agree with the State that it cannot be a tort to communicate accurately a properly established speed limit. We also agree that the setting of the speed limit in the first instance is a discretionary function. In the pre-Act case of Fitzgerald v. Palmer, 47 N.J. 106, 109-10 (1966), this Court stated, "[w]hether a road should have * * * traffic lights, or traffic policemen, or a speed limit of 50 or 60 miles per hour -- such matters involve discretion and revenue and are committed to the judgment of the legislative and executive branches." Moreover, in N.J.S.A. 39:4-98 the legislature has specifically empowered the Commissioner of Transportation to "designate a reasonable and safe speed limit" under certain circumstances, an exercise of discretion under a specific legislative delegation.

The dissent suggests that the "lawful" speed limit at Walkers Hollow is not 50 miles per hour, the currently posted limit there, but rather the speed only at which the curve itself may be traversed safely -- that a "reduced speed in fact is the lawful" speed. Post at 507. (emphasis in original). This ingenuously contrived proposition provides the convenient springboard for the remarkable conclusion that the posted sign "did not accurately communicate the lawful speed limit applicable to the stretch of road in question." Post at 499. (emphasis in original).

The dissenter's point, so persuasively made, misconstrues the statutory and administrative provisions that govern this case. That the speed limit in the vicinity of Walkers Hollow is 50 miles per hour cannot be disputed. See N.J.A.C. 16:28-1.123. Moreover, N.J.S.A. 39:4-98 empowers the State ...


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