Decided: June 30, 1994. Remanded by the Supreme Court: November 1, 1994. Supplemental Memoranda Submitted: December 9, 1994. On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Before Judges Pressler, Dreier and Kleiner.
The opinion of the court was delivered by
Defendant Township of Montclair appealed to the New Jersey Supreme Court from our earlier decision of June 30, 1994, Eason v. NJAFIUA, 274 N.J. Super. 364, 644 A.2d 142 (App. Div. 1994). While this matter was pending on appeal, the Supreme Court decided the case of Civalier v. Estate of Trancucci, 138 N.J. 52, 648 A.2d 705 (1994), which, as we had noted in our opinion, involved the same issue as a matter of first impression. Eason v. NJAFIUA, supra, 274 N.J. Super. at 372 n.2. The Supreme Court, without argument, has now remanded this matter
to us for reconsideration in light of the Civalier decision.
In our earlier opinion of June 30, 1994, we based our reversal of the involuntary dismissal against the Township of Montclair on two principles. First, we found that the replacement of the stop sign on Willowdale Avenue was merely a ministerial act since the municipality had already determined legislatively, with the approval of the State Commissioner of Transportation, that Washington Avenue was a through street at the intersection in question. Thus, we reasoned, the replacement of the sign within a reasonable time after it had been destroyed was merely a failure of maintenance and did not involve a determination whether a stop sign should be placed at the intersection. Id. at 369-374.
The second basis for our decision was that "plaintiff testified that she knew that the intersections in Montclair were generally controlled by stop signs or traffic lights. When she approached the intersection of Washington Avenue and her street was not controlled by a stop sign or traffic light she assumed that the intersecting street would be so controlled." Id. at 374. Thus we reasoned: "The missing stop sign was a 'dangerous condition which endangered the safe movement of traffic.' An emergency signal or sign indicating that plaintiff must stop (even if it was just a cardboard replica of the stop sign attached to a wooden stake) was needed." Id. at 375.
In Civalier, the Supreme Court concurred with our reliance theory based upon N.J.S.A. 59:4-4 which establishes liability for a failure to provide emergency signals or signs necessary to warn of a dangerous condition which would not be reasonably apparent to a person exercising due care. 138 N.J. at 60. The Court limited its imposition of liability to cases in which a motorist relies upon the proper functioning or presence of previously posted signals. Id. at 64.
The element of a driver's reliance on the sign's presence may create a dangerous condition of property for the purposes of N.J.S.A. 59:4-4 when the signal is
malfunctioning or absent. Therefore we hold that a public entity is liable for its failure to replace a traffic sign only when the motorist's reliance on the previous ...