On certification to the Superior Court, Appellate Division.
Garibaldi, Wilentz, Clifford, Pollock, O'Hern, Stein, Handler
The opinion of the court was delivered by
In 1986 Joseph Manna was killed in a car accident on a wet and slippery bridge. Gail Manna, the General Administratrix and Administratrix ad Prosequendum of the Estate of Joseph Manna, sued the State Department of Transportation based on the bridge's dangerous condition. We address the State's liability under the New Jersey Tort Claims Act, N.J.S.A. §§ 59:1-1 to 12-3 (the Act), the statute governing tort suits against public entities. The Act creates an underlying presumption of immunity, N.J.S.A. § 59:2-1, unless liability is specified. Even when that liability exists, however, it may be subject to specific statutory immunities. In this appeal we address the applicability of two such immunities: (1) the immunity for dangerous conditions caused solely by the weather, N.J.S.A. § 59:4-7; and (2) the immunity for dangerous conditions attributable to the plan or design of the public property, N.J.S.A. § 59:4-6.
In July 1986 Joseph Manna was driving northbound on Route 35 toward the Matawan Creek Bridge in Aberdeen. The bridge was wet from an earlier rain and very slippery. As Manna approached the bridge, the driver of the car in front of him applied his brakes. In response, Manna applied his brakes. When the car reached the open-steel-grid deck of the bridge, it slid out of control and into the oncoming lane of traffic, striking another car head-on. Ten days later Manna died from his injuries.
The bridge was originally built as a drawbridge in the 1920s. When the present bridge was constructed in 1960, the wood-block deck was replaced by an open-steel-grid deck. The steel grid was constructed with raised blocks to prevent skidding. According to plaintiff's expert, by the time of the accident the raised blocks had worn down and created a smooth surface that would "retain a water film and allow hydroplaning." Numerous accidents had been associated with the bridge in the past.
Gail Manna, the Administratrix for Joseph Manna's estate, filed a survival and wrongful death action against the State of New Jersey and the State Department of Transportation (State) under the New Jersey Tort Claims Act. She alleged that by failing to provide adequate warnings and failing to install metal studs to prevent skidding, the State was liable for the dangerous condition it had created. Because plaintiff has conceded that N.J.S.A. § 59:4-5 grants immunity for the failure to post warning signals, that issue is no longer in dispute.
The State moved for summary judgment. Reviewing the condition of the bridge, the trial court held that "the plaintiff would be able to establish a prima facie case that a dangerous condition existed." However, the court noted that the purpose of the Act was to grant immunity, and that "any immunity provisions provided in the Act, or by common law, will prevail over the liability provisions." Finding that "the sole cause of the accident was the wet condition of the * * * bridge deck," the court held that § 59:4-7, the weather-immunity provision, provided the State with immunity from Manna's suit. The court also held that the plan-or-design immunity, § 59:4-6, protected the State from liability for Manna's injuries. The court reasoned that the immunity was designed to be perpetual, and hence protected the State from liability when its original design choice proved hazardous. The court therefore granted the State's motion for summary judgment.
The Appellate Division affirmed in an unpublished opinion. The court rested its holding on the trial court's reasoning, but specifically declined to express an opinion concerning the applicability of the plan-or-design immunity.
We granted Manna's petition for certification. N.J. (1991).
In 1972 the Legislature passed the New Jersey Tort Claims Act in response to the judiciary's weakening of the traditional doctrine of sovereign immunity. See Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 404 (1988) (describing Act's history). Although the Legislature recognized that the strict application of the doctrine of sovereign immunity could lead to inequitable results, it chose to create an initial presumption of immunity to limit State liability. The Legislative Declaration states that
the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein.
Section 59:2-1(a) makes the presumption of immunity explicit, stating that "except as otherwise provided by this act, a public entity is not liable for an injury * * *." (footnote omitted). The official comment to the section states that limiting liability to statutorily-created areas will enable the State to foresee and plan for the costs of any future liability. N.J.S.A. § 59:2-1 cmt. (quoting reasoning of California Law Revision Commission with regard to that state's similar Tort Claims Act).
When the Act does establish liability, that liability is in turn subject to specific immunities created by the Act, as well as to any common law defenses. N.J.S.A. § 59:2-1(b). According to the official Comment, the section "is intended to insure that any immunity provisions provided in the act or by common law will prevail over the liability provisions." As we have frequently recognized, "'immunity is the dominant consideration of the Act.'" Rochinsky, supra, 110 N.J. at 408 (quoting Kolitch v. Lindedahl, 100 N.J. 485, 498 (1985) (O'Hern, J., Concurring)).
Section 59:4-2 of the Act creates public liability for dangerous conditions on public property. The statute defines a "dangerous condition" as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. § 59:4-1(a). A public entity will be liable for a dangerous condition on its property
if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.
In deciding a summary-judgment motion, we accept all of the facts presented by plaintiff as true and draw all reasonable inferences in the light most favorable to plaintiff. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75 (1954). Plaintiff relied on an expert report provided by Dr. Richard A. Haber, a professional engineer. He stated that the original steel-grid pattern constructed in 1960 had "presented square ends and sharp edges to directional traffic and acted as a deterrent in the 1960 era of lesser speeds and different tread tires." The raised portions have now worn away, leaving a "smooth, skidprone surface." The expert concluded that the existing structure will retain a film of water and allow hydroplaning. He noted that the vehicle's tires had had good tread and so were probably not the cause of skidding, and noted the police report's observation ...