On certification to the Superior Court, Appellate Division, whose opinion is reported at 245 N.J. Super. 265 (1991).
O'hern, Wilentz, Clifford, Pollock, Garibaldi, Handler, Stein
The opinion of the court was delivered by
Once again we are required to resolve the proper relationship between the liability and immunity provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3. The facts of this case are set forth in the reported decision of the Appellate Division. 245 N.J. Super. 265 (1991). We recite only those essential to our decision.
But eleven days before the traffic light at a notoriously dangerous railroad crossing became operational, plaintiff's decedent lost her life when a train struck her car as it crossed the tracks. Her survivors sued, claiming that the dangerous condition of the property under N.J.S.A. 59:4-2, the failure to provide emergency warning signals under N.J.S.A. 59:4-4, and defendants' failure to act reasonably when undertaking to cure a known danger had caused her fatal injury. The public bodies defended by relying on the legislative grant of immunity for failure to place a traffic signal under N.J.S.A. 59:4-5 and plan or design immunity under N.J.S.A. 59:4-6. The Law Division agreed with the public bodies and dismissed the plaintiff's complaint.
On appeal, the Appellate Division reversed, holding that the immunity under N.J.S.A. 59:4-5 did not apply because the true cause of the dangerous condition was not the absence of the traffic light but rather the independent negligence of the public bodies in delaying the implementation of a plan to install the traffic signal. The panel found that the design and plan immunity did not apply to this case because that immunity applied to the original plan or design, not the plan for the improvement. 245 N.J. Super. at 273. The Appellate Division emphasized what it described as a "tortuous [eight-year] history of bureaucratic red-tape." 245 N.J. Super. at 270. The argument has a powerful logic. Surely were it not for the delay, Elizabeth Ann Weiss would not have tragically died at this grade crossing. But the argument has the same logic as many other claimed exceptions to the Act's immunity provisions. To state the principles applicable to such an action is easy. See Rochinsky v. State, 110 N.J. 399 (1988). The Court is frequently divided when it comes to their application because to pin down the concept of causation in law is so difficult. See, e.g., Troth v. State,, 117 N.J. 258 (1989) (did the legislative immunity with respect to the maintenance of natural lands take precedence over the statutory liability for a defective condition of a man-made dam?); Kolitch v. Lindedahl, 100 N.J. 485 (1985) (did the legislative immunity for establishing a speed limit take precedence over a negligent failure to warn of dangerous curve in the road?). At first glance, the cases might appear to be inconsistent, allowing a cause of action in Troth, but not in Kolitch or Rochinsky. In fact, each case involves a search for a unifying principle -- to identify the cause of the accident, e.g., in Troth, was it the flowing waters or the artificial structure that caused the injury, and to ask if that identified cause or condition is one that the Legislature intended to immunize.
It is appealing to think that the true cause of this accident was the bureaucratic delay and not the absence of a traffic signal. Had the light been operational eleven days earlier, Elizabeth Ann Weiss almost certainly would be with us today. But the injured motorist in Pico v. State, 116 N.J. 55 (1989), would not have been injured either had State employees sanded the roadway five minutes before she was struck by a skidding car. That failure also could be considered bureaucratic delay. If the immunities granted under the Act were found to be inapplicable because of a delay in effectuating the governmental actions involved, there would be little left to the immunities granted by the Act. In the context of other immunities, courts have recognized that the liability provisions of the Act will not take precedence over specifically granted immunities.
For example, in Henschke v. Borough of Clayton, 251 N.J. Super. 393 (App. Div. 1991), municipal police officers negligently failed to investigate the theft of articles from plaintiff's home and "whitewashed" the matter, causing the loss of his personal effects. Id. at 397. However, the court found that the negligence of the police officers established under N.J.S.A. 59:2-2 and -3 did not diminish the legislative immunity granted to the municipality "for failure to provide police protection," under N.J.S.A. 59:5-4. Id. at 400. See also Lee v. Doe, 232 N.J. Super. 569, 581 (App. Div. 1989) (police officers who failed to respond to claims of wrongdoing by plaintiff who was subsequently shot by wrongdoer were immune from liability under N.J.S.A. 59:5-5); Wuethrich v. Delia, 155 N.J. Super. 324, 326 (App. Div.) (general provision for vicarious liability of public entity for negligent acts of employee did not diminish "explicit grant of immunity contained in N.J.S.A. 59:5-4 and N.J.S.A. 59:5-5" with respect to failure to provide public protection or failure to make arrest), certif. denied, 77 N.J. 486 (1978) (Wuethrich II).*fn1
In Bombace v. City of Newark, 125 N.J. 361 (1991), we followed that approach of recognizing the precedence of specific immunity provisions. There we held that the ordinary negligence of a municipal official in terminating a legal proceeding to prosecute housing violations did not diminish the explicit grant of immunity contained in the Act for failure to enforce the law. Id. at 373-74. That approach is consistent with the principle of Rochinsky, supra, 110 N.J. 399 that "when one of the Act's provisions establishes liability, that liability is ordinarily negated if the public entity possesses a corresponding immunity." Id. at 408. There, this Court reaffirmed that N.J.S.A. 59:2-1(b) "'is intended to insure that any immunity provisions provided in the act or by common law will prevail over the liability provisions.'" Ibid. (quoting Report of the Attorney General's Task Force on Sovereign Immunity, cmt. on N.J.S.A. 59:2-1 (1972) (Task Force Comment)). Thus, even were we to believe that a cause of action might otherwise be stated for "administrative inaction" that is not "of a legislative or judicial nature," N.J.S.A. 59:2-3, the explicit grant of immunity for failure to provide traffic signals under N.J.S.A. 59:4-5, "will prevail over the liability provisions." N.J.S.A. 59:2-1 Task Force Comment.
Were there any other triable issue of independent negligence -- for example, had the underbrush that obscured visibility at the crossing been on defendants' property and subject to their maintenance, or had there been any other condition of the property that caused the dangerous condition to exist, e.g., a pothole of long duration, an oil spill on the roadway, or a broken traffic light, Bergen v. Koppenal, 52 N.J. 478 (1968), the complaint might have stated a cause of action. Rochinsky, supra, 110 N.J. at 416 (weather immunity did not include "artificial creation of a snow bank that makes a highway impassable").
Plaintiff argues that the Tort Claims Act is meant to insulate only high-level policy decisions of government because only judicial review of such decisions implicates the separation-of-powers doctrine. See Costa v. Josey, 83 N.J. 49, 55-56 (1980) (citing Fitzgerald v. Palmer, 47 N.J. 106, 110 (1966), in which Chief Justice Weintraub admonished "as to such matters [governmental policy decisions], the question is whether a Judge or jury could review the policy or political decisions involved without in effect taking over the responsibility and power of those other branches"). The plaintiff would have us divide the decision-making and implementation processes in assessing the traffic-signal immunity under N.J.S.A. 59:4-5. However, the Task Force Comment to N.J.S.A. 59:4-5 refers to the analysis of this Court in Hoy v. Capelli, 48 N.J. 81 (1966). There the Court suggested that a public entity would be immune from liability whether the entity decided to eliminate the traffic light permanently or simply was delayed in reinstalling the light. Id. at 87.
The failure to send out the road sanders in Pico, supra, 116 N.J. 55, might also have been classified as a low-level administrative decision rather than a "political decision," but we found that the express immunity for weather conditions prevailed over the negligent delay in dispatching the sanders. We have been adjured by the framers of the Tort Claims Act that we should approach these cases from the perspective that immunity is the dominant theme of the Act.
In the absence of a comprehensive statute the New Jersey Supreme Court had developed the analytical approach that courts "ought not to be . . . asking why immunity should not apply in a given situation but rather . . . asking whether there is any reason why it should apply." B. W. King, Inc. v. West New York, 49 N.J. 318, 325, 230 A.2d 133 (1967). This approach is no longer necessary in light of this comprehensive Tort Claims Act. Rather the approach should be whether an immunity applies and if not, should liability attach. It is ...