On appeal from Superior Court, Law Division, Monmouth County.
Gaynor and Scalera. The opinion of the court was delivered by Gaynor, J.A.D.
In this negligence action, plaintiffs appeal from the summary judgment dismissing their complaint, contending that the existence of factual issues precluded such a disposition. We agree and reverse.
On December 1, 1981 plaintiff, Evelyn Wooley, was proceeding in her car across the bridge on Old Corliss Avenue in Neptune Township when the car skidded on ice, careened down
the bridge approach out of control, crashed through the wooden guard rail and fell into a 20-foot ravine. Recovery for the injuries thereby sustained by Ms. Wooley was sought in this action against the County of Monmouth or its Highway Department for the negligent failure to provide and maintain an effective barrier at this location to contain and redirect automobiles onto the roadway. It was alleged that such conduct of the county, or its agent, created a dangerous condition thereby rendering the county liable for plaintiff's*fn1 injuries. Defendant set up various defenses under the Tort Claims Act (N.J.S.A., 59:1-1, et seq.) including the plan or design immunity provided under N.J.S.A. 59:4-6, as well as denying that the guard rails constituted a dangerous condition.
The county moved for summary judgment on the ground of the immunity granted under N.J.S.A. 59:4-6. In ruling in favor of the county, the motion judge concluded that the design or plan immunity was applicable and further that plaintiffs had failed to establish that defendant's conduct with reference to the maintenance of the guard rails was palpably unreasonable -- a prerequisite for a recovery based upon the dangerous condition of a public entity's property.*fn2 In reaching these conclusions, the judge reasoned:
Based upon the proof in this case, [which] has been submitted to me in the affidavits, and the photographs, et cetera, and the information by both counsel, I am satisfied that the immunity of the statute 59:4-6 applies, and insofar as the claim is made by this plaintiff with respect to design, et cetera, the defendants herein are entitled to the plan design immunity, and the summary judgment is granted with respect to thereto.
There is no doubt in my mind that this design as submitted and approved in 1948 included and incorporated that area through which this plaintiff ultimately went with her automobile at the time of this accident.
The additional problem that may be here and is pursued by the plaintiff is that there is improper maintenance of this guard rail and the posts thereof predicated upon the evidence of the expert, Mr. Nolte.
I read his report a couple of times, and I find nothing in his report at all which says that what the County did or failed to do with respect to maintenance of this guardrail was palpably unreasonable.
There is nothing in his report that says that condition which he found existed at the time of the occurrence or that if it did exist at the time of the occurrence that which the County did in ...