On appeal from Superior Court, Law Division, Union County.
Pressler, Deighan and Baime. The opinion of the court was delivered by Pressler, P.J.A.D.
[245 NJSuper Page 267] Elizabeth Ann Weiss was killed when the automobile she was driving was struck by a New Jersey Transit train at a grade level crossing in the Borough of New Providence. Her father, plaintiff Robert G. Weiss, brought this wrongful death action, as administrator ad prosequendum of his daughter's estate and as guardian of her surviving child, against New Jersey Transit Corporation, New Jersey Rail Operations, Inc., New Jersey Department of Transportation (DOT), New Providence Borough
and Union County.*fn1 He appeals from the grant of summary judgment dismissing his complaint against all public-entity defendants. The court's action was based on its conclusion that beyond any genuine dispute of material fact these defendants were entitled to the design immunity afforded by N.J.S.A. 59:4-6 and the immunity afforded by N.J.S.A. 59:4-5 for failure to provide ordinary traffic signals. We disagree and reverse.
The fatal accident occurred on the morning of December 29, 1986. Decedent, the sole occupant of her car but for a German Shepherd dog which survived the crash, was driving westbound on Central Avenue in New Providence towards its intersection with Livingston Avenue, both municipal streets. A single railroad track under the jurisdiction of New Jersey Transit runs diagonally through the intersection. Decedent's car was struck by a northbound New Jersey Transit train as it was making a right turn onto Livingston Avenue. At the time of the accident, the crossing was not guarded by gates. Nor were there pavement markings giving advance warning of the crossing approach. The warning system then in place included mounted crossbucks as well as flashing lights and bells activated by the oncoming train.
In April 1978, after two car-train accidents had already occurred at the Central Avenue crossing, defendant New Providence passed a resolution petitioning DOT to provide for the installation of "appropriate safety devices" at that location. The resolution noted "increased traffic, nearness to public schools and the general nature of the railroad crossing." A public hearing was conducted before a hearing examiner later that month at which both the borough and Consolidated Rail Corporation (Conrail), the predecessor of New Jersey Transit, were represented. The hearing examiner's report and recommendation, issued in October 1978, found that at the crossing
"car to train sight distances are generally poor on all approaches because of trees, utility poles, shrubbery and residential buildings." It also found with respect to the warning system in place that there was "partial restriction to visibility of the flashing signal assemblies because of trees, utility poles and 'Stop' signs." Because of the relatively high volume of traffic at the intersection, consisting of some 4500 vehicles and 30 trains daily, the hearing examiner recommended substantial upgrading of the warning systems. It was his conclusion that:
In view of the recent accident history and the accident potential generated by the poor sight distances, high number of passenger trains, high speed of trains, presence of school children as pedestrians, flammable cargo carriers, relatively high traffic volumes at the intersection, school buses, motorists' disregard for the flashing signals, the partial visibility restrictions of the flashing light assembly and the diagonal approach of trains, the Examiner is of the opinion that the level of protection should be increased.
Further concluding that compliance with federal mandate for a crossing gate was "impractical,"*fn2 the solution recommended by the examiner was the installation of clearly visible traffic signals at the intersection, connected to railroad circuitry so that all lanes of traffic would have a red signal as a train approached. The examiner further recommended pedestrian "blank-out" signs, "no turn on red" signs, installation of approach pavement markings, and installation of modern reflectorized back-to-back crossbucks. Finally, he recommended that all costs "associated with this project will be paid under the appropriate Federal Aid Program."
Five months later, in March 1979, the DOT Commissioner issued a decision and order adopting the examiner's report and recommendation and directing both the borough and Conrail to take particularly described actions to effect the new signalization plan according to a specifically mandated and expeditious timetable. The Commissioner also directed payment for the
project with allocated federal funds made available under the Federal Aid Rail-Highway Safety Program.
Despite the timetable contained in the Commissioner's order, the project was not completed and functional until January 8, 1987, a week after the accident and almost eight years after entry of the Commissioner's order mandating the improvement. In explaining this inordinate, extraordinary delay in completing a funded safety project taking only six weeks of actual construction time, the record demonstrates a tortuous history of bureaucratic red-tape, desultory foot dragging, and lack of ...