On appeal from the Superior Court, Appellate Division.
Chief Justice Wilentz and Justices Handler and Stein join in Justice O'HERN's opinion. Justice Garibaldi has filed a separate Dissenting opinion in which Justice Pollock joins. Justice Clifford did not participate.
The opinion of the court was delivered by O'HERN, J.
At issue in this case is the liability of public-entity defendants, Gloucester County, Washington Township, and the Washington Township Police Department, for an automobile accident allegedly caused by a missing traffic sign. Three people lost their lives in the accident.
Because the case arises on summary judgment, all inferences of fact must be drawn in favor of those parties opposing the motion. Pretrial discovery discloses the following. Margaret Trancucci was driving an automobile west on Mariner Drive, a municipal road in Washington Township, New Jersey, in the early evening of November 30, 1989. Anthony Previte was driving a panel truck south on Pitman-Downer Road, a county road. A stop sign was ordinarily posted at the northeast corner of the intersection of the two roads, facing east on Mariner Drive. Previte knew that a sign regulated the intersection and he assumed that he had the right of way. However, at the time of the accident, the sign was missing, leaving only a bare pole. The sign had been reported missing earlier in November and Washington Township had replaced it. Between the time of that replacement and the accident, the sign had been removed again. The Chief of the Washington Township Police Department acknowledged that vandalism of stop signs is a recurring problem for the community.
A Wawa convenience store is located on the same northeast corner of the intersection. Overgrown shrubbery on that corner obscured visibility of southbound traffic on Pitman-Downer Road. An eyewitness estimated the speed of Previte's truck to be forty-five miles per hour and the speed of Trancucci's car to be five miles per hour as she entered the intersection. When Trancucci reached the center of the intersection, she apparently noticed Previte's oncoming truck and accelerated in an unsuccessful effort to avoid being hit by the truck.
As a result of the accident, Trancucci and her two adult passengers, Genevieve Dianora and Barbara Civalier, died. Ten-year-old Steven Civalier, another passenger in Trancucci's car, and Anthony Previte were injured. These suits variously charge the drivers, the convenience store, the store's landscape contractors, and the public entities with causing the accident. The three public entities filed motions for summary judgment on the basis that N.J.S.A. 59:4-5 grants them immunity from liability for "failure to provide ordinary traffic signals, signs, markings or other similar devices."
The trial court granted those motions, holding that the asserted dangerous condition of property arose from the absence of an ordinary traffic signal, a condition for which N.J.S.A. 59:4-5 specifically grants public entities immunity. The court concluded that the intersection did not constitute a "dangerous condition" of public property for purposes of liability under either N.J.S.A. 59:4-2 or N.J.S.A. 59:4-4 (requiring emergency warning of dangerous conditions that are not apparent) because, when the sign was removed, the intersection became an ordinary "uncontrolled intersection" under N.J.S.A. 39:4-90, and the regulations promulgated under that statute dictated the appropriate conduct of drivers approaching the intersection. The court thus reasoned that an uncontrolled intersection is not an unusual, extraordinary, or unexpected occurrence or condition calling for immediate action under N.J.S.A. 59:4-5. The Appellate Division denied leave to appeal that ruling. We granted leave to appeal, 134 N.J. 556, 557 (1993).
In a recent series of cases, we have considered 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 Act). For example, in Weiss v. New Jersey Transit, 128 N.J. 376, 608 A.2d 254 (1992), we faced an issue similar to that currently before us. In that case, a driver's car was struck by a train at an uncontrolled railroad grade crossing. A traffic signal had long been planned for the grade crossing, but a "tortuous history of bureaucratic red-tape," 245 N.J. Super. 265, 270 (App. Div. 1991), delayed its operation. Plaintiffs in Weiss claimed that the legislative grant of immunity for failure to place a traffic signal 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 signal but rather the independent negligence of the public bodies in delaying the installation of the traffic signal.
We did not agree. We believed that the denial of immunity to a public entity on the basis of administrative negligence in implementing a plan to post a traffic signal would result in there being "little left to the immunities granted by the Act." 128 N.J. at 380. We recognized the closeness of the call, but we believed that the liability provisions of the Act could not take precedence over specifically-granted immunities. Our precedent supported that Conclusion. In Bombace v. City of Newark, 125 N.J. 361, 593 A.2d 335 (1991), we had 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. In Pico v. State, 116 N.J. 55, 560 A.2d 1193 (1989), we had held that the express immunity for weather conditions under N.J.S.A. 59:4-7 barred suit against the State for any negligent delay in dispatching the road sanders to clear up icy roads. In short, we recognize that "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. * * * [When] an immunity applies, liability does not attach." Weiss, supra, 128 N.J. at 383.
Although this accident might not have happened had the public bodies used "vandal-proof" bolts to make removal of the sign much more difficult, were we to recognize the failure to affix properly an ordinary traffic signal as a basis for government liability, we would be logically compelled to recognize liability for failure to post promptly a traffic signal as well. We do not believe that the Legislature intended such liability. See Kolitch v. Lindedahl, 100 N.J. 485, 496, 497 A.2d 183 (1985) ("Both the decision [to post a sign] and the act of implementation are one and the same for the purposes of the [traffic sign immunity]."). Were that issue (improper posting of the sign) the only issue, we would affirm.
One fact, however, distinguishes this case from Weiss and Kolitch. As the driver to the right at an uncontrolled intersection, Previte had the right of way, N.J.S.A. 39:4-90. In addition, he believed that he was entering a controlled intersection that provided him the right of way. Although N.J.S.A. 59:4-5 explicitly grants public entities immunity from liability "for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices," an exception to the immunity provisions of the Act allows public entities to be held liable for injuries caused by their failure to provide emergency warning signals:
Subject to section 59:4-2 of this act, a public entity shall be liable for injury proximately caused by its failure to provide emergency signals, signs, markings or other devices if such devices were necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.
[N.J.S.A. 59:4-4 (emphasis added).]
How does the foregoing provision relate to the immunity for failure to provide ordinary traffic signals under N.J.S.A. 59:4-5? Spin Co. v. Maryland Casualty Co., 136 N.J. Super. 520, 524, 347 A.2d 20 (Law Div. 1975) (finding no emergency in failure to post height of bridge), explains that "in enacting N.J.S.A. 59:4-4 and 5, * * * the Legislature intended to codify pre-existing case law * * * ." The comment to the sections indicates that those sections codified Hoy v. Capelli, 48 N.J. 81, 222 A.2d 649 (1966), and Bergen v. Koppenal, 52 N.J. 478, 246 A.2d 442 (1968). See N.J.S.A. 59:4-5 comment (stating that "this section is consistent with existing New Jersey law," and citing Hoy); N.J.S.A. 59:4-4 comment (stating that provision imposes liability "for the failure on the part of a public entity to provide an emergency warning signal or device when a condition exists constituting a 'trap' to a person using a street or highway with due care," and citing Bergen).
In Hoy, supra, 48 N.J. 81, the City of Wildwood removed a defective traffic light that needed to be replaced. The City took no further action to ensure that the intersection, which had been regulated by two stop signs prior to the initial installation of the traffic light, remained safe while the traffic light was down. As a result, a collision occurred. The Court held that the common law furnished the City with immunity from liability for the accident because "the sole traffic light at the intersection had been completely removed for almost two months and there [was] not the slightest suggestion that either driver relied on the fact that it or any other traffic regulation device had existed." Id. at 86.
On the other hand, in Bergen, supra, 52 N.J. 478, this Court allowed a jury to consider public-entity liability for failure to take remedial action after a broken cable caused a traffic light to turn and become misdirected. The Court identified the issue as "whether for tort purposes the Township was * * * under a duty to take over traffic control when its officer learned of the situation * * *." Id. at 480. It held that "a duty may be found if a police officer learns of an emergent road condition which is likely not to be observed by a motorist and which holds an unusual risk of injury." Ibid.
The facts of our case differ from the facts of Hoy in that the truck driver, Previte, was relying on the existence of a stop sign on the municipal road as he drove down the county road, whereas the drivers in Hoy were not relying on the existence of any traffic signal. Thus, because the Court qualified its ruling in Hoy by emphasizing the absence of reliance by either driver, the codification of Hoy does not automatically bar suit against the public bodies in this case.
New Jersey patterned its Tort Claims Act largely on the California Tort Claims Act. Tice v. Cramer, 133 N.J. 347, 361, 627 A.2d 1090 (1993). In its May 1972 report to the New Jersey Legislature, the Attorney General's Task Force on Sovereign Immunity gave a paragraph-by-paragraph summary of the prototype California Tort Claims Act of 1963. The California act has similar interrelated provisions granting immunity for "failure to provide" traffic signals but imposing liability for "failure to warn" of dangerous conditions not readily apparent to the public.
The text of the two California provisions as they existed in 1972 read as follows:
§ 830.4 [Traffic control signs, roadway markings].
A condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.
[Cal. Gov't Code § 830.4.]
§ 830.8 [Failure to provide traffic or warning signals, markings, etc.]
Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.
[Cal. Gov't Code § 830.8.]
The approved California Law Revision Commission Comment to that section stated:
This section prevents the imposition of liability based on the failure to provide traffic regulatory or warning signals or devices of a type not listed in Section 830.4 but liability may exist for failure to provide such a signal or device where the condition ...