On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Before Judges Shebell, Long and Landau.
The opinion of the court was delivered by
This is a wrongful death action brought under the Tort Claims Act (N.J.S.A. Title 59). The direct appeal involves an issue of first impression, i.e., whether N.J.S.A. 59:9-2e remains viable following the enactment of N.J.S.A. 2A:15-97.
While responding to an emergency call on November 20, 1988, Eugene Furey, a volunteer fireman, was killed when he lost control of the 1987 Chevrolet Blazer he was driving and struck a tree. On August 7, 1989, his surviving spouse and administratrix of the estate, Kerry A. Furey, filed a Wrongful Death and Survival Action. The Fureys had one child, Megan, on whose behalf the action was also brought. The Complaint named as defendants, the County of Ocean (County), the State of New Jersey, and the Borough of Beachwood, where the accident occurred. By order dated August 7, 1992, plaintiff was granted leave to amend her complaint to add the claim against Applegate, the County road foreman. At the time of jury deliberations, only the wrongful death action against the County and its road foreman, Thomas Applegate, remained. It was alleged that decedent's death was caused by a dangerous condition on public property and a failure to warn of that dangerous condition.
On December 6, 1991, the County moved for summary judgment arguing that no dangerous condition existed and that it had no duty to warn. The County's motion was denied. On November 29, 1992, the jury returned a verdict in plaintiff's favor and against the County only. The jury apportioned 40% fault against plaintiff's decedent, 60% against the County, and awarded $475,000 in total damages.
After the verdict, the County requested a credit, pursuant to N.J.S.A. 59:9-2e, for Workers' Compensation and Social Security benefits. Plaintiff then moved for an additur, or in the alternative, a new trial as to damages, for counsel fees pursuant to N.J.S.A. 59:9-5, and for the appointment of a guardian ad litem for Megan. The County cross-moved for a new trial.
On January 7, 1993, the trial Judge denied the plaintiff's motion for additur or a new trial on damages, the plaintiff's request for the appointment of a guardian ad litem, and the County's motion for a new trial. The Judge granted the County's request for credits for Workers' Compensation and Social Security*fn1 benefits pursuant to N.J.S.A. 59:9-2e "subject to the distribution hearing and the Court's determination of the amount of any credits which the defendant is to receive and the extent to which the distributive shares of Kerry and Megan Furey may be reduced."
By letter dated January 13, 1993, plaintiff's counsel reiterated his request for the appointment of a guardian ad litem and for a hearing to determine the value of the distributive shares and the present value of the credits which the Judge had ruled would be applied. At a hearing held on February 19, 1993, after applying credits for Workers' Compensation and Social Security benefits, the trial Judge determined that a net sum of $21,626.25 remained for distribution to the estate. The Judge did not apportion the verdict or the credits between Mrs. Furey and her daughter,
Megan. Also at the hearing, the Judge awarded counsel fees of $15,000, pursuant to N.J.S.A. 59:9-5.
Later that same day, the attorney for the County submitted a letter to the Judge, bringing to his attention an additional Workers' Compensation credit that was not included in the initial determination. The trial Judge, by letter dated February 22, 1993, stated "that the court, in fact, did err in omitting to consider the present value of future payments to Megan Furey from the period of July 7, 1997 to June 3, 2002." The Judge concluded that since the total credit to the County was greater than the jury verdict, no monetary judgment would be entered against the County. The Judge then stated that since plaintiff had entered into a contingency fee arrangement with counsel, it would not be appropriate to grant any attorney's fee.
On March 25, 1993, the court entered its final order and judgment setting forth that pursuant to N.J.S.A. 59:9-2e, the County was entitled to $294,820.80 in credits for benefits payable to Kerry Furey and Megan Furey from the Workers' Compensation award and from the Social Security Administration. Since these credits exceeded the County's percentage share of the jury verdict, 60% of $475,000 or $285,000, the Judge held that plaintiff could have no recovery.
Plaintiff appeals from the credits allowed and defendant appeals from the judgment of liability.
The parties stipulated as to the following facts at the time of trial:
In the early morning of November 20th, 1988 Eugene Furey, age twenty-eight and a volunteer fireman with the Bayville Fire Department died from injuries he sustained when the 1987 Chevrolet Blazer he was driving crashed into a tree in Beachwood, New Jersey. There were no eyewitnesses to the accident.
At the time of the accident Mr. Furey in his capacity as a volunteer fireman was responding to an emergency call and he was proceeding from his home on Spruce Street in Beachwood to the Bayville Fire Department substation. He was traveling south on Pinewald Road just prior to the accident.
Pinewald Road in its entire right-of-way is and was owned, maintained and controlled by the defendant, Ocean County. The defendant, Thomas Applegate, was and still is the road foreman for the area of Pinewald Road where the accident
occurred. Mr. Applegate was and still is an employee of Ocean County. As a road foreman for Pinewald Road, Mr. Applegate was and still is the person responsible for the inspection, maintenance and repair of Pinewald Road and its adjoining right-of-way and shoulder.
Mr. Furey had been married to Kerry Furey, the plaintiff in this case and the duly appointed representative of Mr. Furey's estate. Gene and Kerry Furey had a daughter, Megan, who was born in 1984 and is currently eight years old.
Plaintiff's theory of liability was that the County failed to inspect, maintain, or repair the dirt shoulder adjacent to the paved portion of Pinewald Road. At trial, the police officer in charge of the investigation testified as to the following:
my Conclusion was that Mr. Furey's vehicle had a reaction, okay, to right wheel drop-off, and as a result of the right wheel drop-off, the vehicle lost control or he lost control of the vehicle and struck the tree on the opposing side.
In drawing his Conclusion, the police lieutenant took into consideration the road condition, the weather at the time, the right wheel drop-off, and that decedent was negotiating a curve. He described a right wheel drop-off as "a difference in the level of two road surfaces, in this case I referred to it as a berm, an unpaved portion, that . . . a vehicle could pull over to the side of the roadway." The drop-off generally ranged between two and four inches, and was as high as six inches at the worst portion. The officer opined that this drop-off was a substantial contributing factor to the cause of the accident.
The officer testified that when he arrived at the scene of the accident, it was raining hard and the roadway was slippery. He could not make any specific observations that day for such things as tire marks, because the area of the berm was flooded. On the day after the accident, when the officer did his vehicle data collection sheet analysis, he took a photograph depicting a tire print in the dirt portion of the roadway that he believed was made by decedent's vehicle.
Plaintiff's expert, Herman J. Rich, a consulting civil engineer, testified that he examined the scene of the accident on May 24, 1989, and categorized it "as a rural-type, two-lane road constructed without paved shoulders but with earth or sandy-type roadside shoulders." The unpaved shoulder was composed of "sandy, silty
material." He opined that the accident occurred in the following way:
It occurred as a result of the driver of the vehicle, Mr. Furey, attempting to get back onto the pavement with the right wheels of his vehicle after they dropped off onto the depressed surface, and having reached the critical steer angle - I may have to explain this, I'm sure I have to explain this in greater detail - that when he first mounted the pavement with the right front wheel, which necessarily had to be steered fairly sharply in order to attain what's called a critical steer angle, that the car began to yaw and literally went across the road on a diagonal as evidenced by the tire marks at such a rapid rate that he had no opportunity to recover and hit the tree.
He noted that since the roads were wet, it would exacerbate a slide. He explained why drop-offs are so dangerous and what usually happens:
with only three wheels of the car on the pavement, the car starts to counterclockwise yaw. It starts a kind of a slow spin-out toward the left. So, consequently, as the car, the vehicle, crosses the pavement, as it yaws toward the left, the passenger's side becomes the leading side. That side is the side that's exposed to any trees, and that's why you find very often, also in this case, that it's the right side of the vehicle that hits the tree or whatever other obstruction there is there.
Rich opined that the drop-off would have been clearly visible to anybody looking for it, such as someone involved in the construction or maintenance of the road. He believed that the magnitude of risk presented by this drop-off posed a substantial hazard to passing motorists. Rich asserted that there was no doubt that the right wheels of decedent's vehicle traveled from the paved portion of the road onto the berm. He further testified: "People are constantly straying off the paved portion of a road onto a shoulder without incident. That's not an accident. The accident is if they encounter a shoulder that can't properly receive that vehicle and create the trap that Furey apparently found himself in."
Numerous deposition transcripts of employees of the County were read into evidence by the plaintiffs demonstrating that it was the responsibility of County employees to monitor the roads regularly and to repair and maintain situations where there was erosion on the shoulder. The County admitted that its road department maintained the traveled roadways and was responsible for keeping them in a safe condition. The objective was to have
the shoulder level with the paved roadway if possible. Typically, if a drop-off were three to four inches, the foreman would get someone out there to fix it. A County employee acknowledged that a drop-off could be dangerous and affect a driver's control.
In rebuttal, the County presented a portion of the deposition of the assistant road supervisor for the County, wherein he stated that the County did not become concerned about a drop-off unless it was five or six inches. If the drop-off were in an area where there were "a few houses," he would want something done immediately to repair it.
The County engineer testified that "roadway" usually referred to the whole pavement, but they broke it down into the "traveled way," which was the portion of the pavement which actually had the traffic lanes on it, and the shoulder, which was the portion beyond the traffic lanes. He explained the priority of maintenance of the roads in the County. Of greatest concern, was the traveled way, i.e., the actual driving lanes of the roadways. The second highest priority was the shoulder because it structurally supported the pavement. On cross-examination, he agreed that the roadside was difficult to maintain in this area because of the sandy soil conditions.
We deem it advisable to first consider the arguments raised by defendant in its cross-appeal concerning the County's liability. The County urges that the trial court erred in determining that the plaintiff's proofs established a cause of action under N.J.S.A. 59:4-1a and N.J.S.A. 59:4-2. At trial, the Judge ...