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Smith v. State

Decided: April 1, 1991.

GEORGE E. SMITH, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, DEFENDANT-RESPONDENT, AND LOUIE MONROE AND JOSEPH'S EXPRESS COMPANY, INC., DEFENDANTS. LISA FERRARA, AN INCOMPETENT BY AND THROUGH HER GUARDIAN AD LITEM, JOANNE GALYEAN, PLAINTIFF-APPELLANT, V. STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, DEFENDANT-RESPONDENT, AND GEORGE E. SMITH, LOUIE MONROE, AND JOSEPH'S EXPRESS CO., INC. DEFENDANTS



On appeal from Superior Court of New Jersey, Law Division, Camden County.

J.h. Coleman and Ashbey. The opinion of the court was delivered by J.h. Coleman, P.J.A.D.

Coleman

This is an appeal from a summary judgment holding that the New Jersey Department of Transportation (DOT) has immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (Act), for the claims alleged against it in the two complaints respecting traffic signs to warn motorists of a low overpass. We agree and affirm.

On June 30, 1986, plaintiff Lisa Ferrara was a passenger in a motor vehicle operated by George E. Smith when the Smith vehicle collided with the rear of a tractor-trailer being operated by Louie Monroe. Shortly before the collision, Monroe had travelled westerly on State Route 30 (Admiral Wilson Boulevard) to the Baird Boulevard overpass. The underpass was marked 13 feet 5 inches and Monroe's trailer was 13 feet 6 inches. Realizing his trailer was higher than the underpass, he stopped in lane two of the four-lane highway. He decided to back-up to a point where he could exit on to Somerset Avenue. After backing up and while waiting in lane two for traffic in lane one to permit him to exit to the right, Monroe heard a loud noise from Smith's vehicle being driven into and beneath the rear of the tractor-trailer. This was a tragic accident in which Smith and Ferrara were severely injured; neither has any present recollection of what happened.

Smith and Ferrara filed separate complaints which were consolidated. They have alleged that the DOT created a dangerous condition on its property, Route 30 West, by failing to maintain and place a ground-mounted sign at a location which would properly alert tractor-trailer drivers of the low overpass within a sufficient distance before the last exit prior to the overpass. They contend, based on evidence from Monroe, that Monroe did not see a ground-mounted sign on the day of the accident. Monroe has also stated that he did not see a ground-mounted sign when he returned to the area two or three days after the accident. They further contend that notwithstanding the DOT's evidence that a ground-mounted sign was located 55

to 70 feet from the last exit, that sign did not properly warn tractor-trailer drivers in time to be able to make a detour around the underpass. To substantiate that theory, plaintiffs presented a report from an expert who stated that the sign should have been 500 feet from the last exit, which was Somerset Avenue.*fn1 Thus plaintiffs contend they established a prima facie case under N.J.S.A. 59:4-2 and N.J.S.A. 59:4-4 because a dangerous condition was created by the DOT on its property which was palpably unreasonable.

To establish a prima facie case within the contemplation of N.J.S.A. 59:4-2, plaintiffs must demonstrate that (1) the public property was in a dangerous condition at the time of the accident, (2) the condition proximately caused the accident and damages, (3) the condition created a reasonably foreseeable risk of the kind of injury that occurred, (4) either the condition was wrongfully created by an employee of the entity or the entity had actual or constructive notice long enough to have taken measures to protect against it, and (5) the action or inaction of the public entity in protecting against the condition was palpably unreasonable. Kolitch v. Lindedahl, 100 N.J. 485, 492-93, 497 A.2d 183 (1985); Brown v. Brown, 86 N.J. 565, 575, 432 A.2d 493 (1981). We do not, however, address whether the elements of a prima facie case were established because we are persuaded that immunity under the Act prevails over plaintiffs' claims in any event.

Inasmuch as the matter is before us on an appeal from a grant of summary judgment, we accept as true plaintiffs assertion that a prima facie case of liability can be established. Nonetheless, plaintiffs are not entitled to have a jury deliberate respecting liability if the public entity is entitled to immunity. The Act, N.J.S.A. 59:1-1 et seq.; Rochinsky v. State of N.J.,

Dep't of Transp., 110 N.J. 399, 413-414, 541 A.2d 1029 (1988). Immunity under the Act predominates over liability and the DOT contends it enjoys immunity under N.J.S.A. 59:4-5.

When granting summary judgment dismissing both complaints against the DOT, the judge stated:

My reading of N.J.S.A. 59:4-4, 5 and 6 indicates to me that the State is entitled to the immunity it seeks in the facts of this case. First, that it seems to me that if the plaintiffs are talking about the bridge itself and the fact of its construction being the height that it ...


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