On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.
[225 NJSuper Page 59] Plaintiff appeals from summary judgments in favor of defendants County of Hunterdon (County) and State of New
Jersey (State).*fn1 We affirm as to the State, but reverse and remand as to the County.
Plaintiff's decedent James R. Morris was killed on July 3, 1983 when thrown off his motorcycle on Route 629 in the Township of Clinton (Township). On that day, decedent, his brother Kenneth R. Morris, Jr. (Kenneth), and two other friends were riding their motorcycles along Route 629 in a westerly direction, when they rounded a curve to proceed in a northerly direction. According to an affidavit from Kenneth, the roadway was slippery with actual streaks of oil seen. As the road approached the curve there were no signs warning as to speed or as to the curve. Kenneth was riding approximately 200 to 300 feet behind his brother, the decedent, when Kenneth began to slide and almost lost control of his motorcycle, regaining control in the area where his brother began to skid. As he rounded the curve Kenneth saw his brother lying on the shoulder in front of the guard rail. The guard rail ran along the westerly sideline of Route 629, with a gap for what appears on a photograph to be a gate entrance. The guard rail consists of posts with cable attached. As depicted in the photographs the cable is affixed to the posts with a round metal bar with a nut screwed on. Kenneth came upon his brother lying face down at the beginning of the guard rail. There was a large hole in his back and he was bleeding profusely. Kenneth observed blood and chunks of flesh on the threaded rod sticking out horizontally about five inches from the beginning of the guard rail upon which decedent had been impaled. The autopsy revealed among the fatal injuries the avulsion of the heart with exsanguination. There was a deep gaping posterior wound in his back.
Plaintiff instituted a wrongful death action against the Township, the County and the State. On September 16, 1986, summary
judgment was entered in favor of the Township. Because of plaintiff's failure to appear at the calendar call on December 15, 1986, the complaint was dismissed on January 5, 1987, but was restored to the active trial list on March 13, 1987. After oral argument on April 10, 1987, summary judgment was entered in favor of the County on April 13, 1987. The State's motion for summary judgment was carried and finally argued on May 8, 1987, at which time plaintiff's motion for a rehearing of the summary judgment in favor of the County and other relief was also heard and denied. Summary judgment in favor of the State was entered on May 11, 1987. The order included a denial of plaintiff's application for rehearing of the summary judgment in favor of the County.
The motion judge based summary judgment in favor of the State on the statute of limitations, N.J.S.A. 2A:14-1.1, which provides in pertinent part:
No action . . . in tort . . . to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property . . . or for . . . wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction.
According to a certification of Melvin H. Meyers, Business Administrator for the New Jersey Water Supply Authority, the road and guard rail were built under the auspices of the former Department of Conservation and Economic Development, with construction completed in 1965. Chester J. Andres, Executive Assistant to the Assistant Commissioner for Engineering and Operation in the Department of Transportation, certified that the Department of Transportation has never been responsible for the supervision, maintenance, construction, repair or control of the roadway or guard rail at Hunterdon County Route 629 in Clinton Township, including milepost 13.6 where the accident occurred. The State submitted a copy of a deed from the State,
dated October 13, 1964, conveying the property in question to the County. This deed ...