On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Approved for Publication June 5, 1997.
Before Judges Dreier, Newman and Villanueva. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
The opinion of the court was delivered by
Plaintiffs, Patrice M. Grzanka and Kurt P. Pfeifer, appeal from summary judgments dismissing their complaints against the City of Paterson and American Winko-Matic Sign & Signal, Inc., the manufacturer of a vandalized and thus nonfunctioning traffic light maintained by the City.
The basic facts in the instant appeal are uncontested. On May 2, 1992, at approximately 7:15 p.m., plaintiff Kurt P. Pfeifer was driving his motorcycle east on Broadway in Paterson. Plaintiff Patrice M. Grzanka was his passenger. At the intersection of Broadway and Straight Street, the motorcycle collided with a car traveling south on Straight Street. The car was owned by defendant Crystal L. Heredia and was driven by defendant Gladys M. Urena. The traffic signal at the intersection of Broadway andStraight Street was not working at the time of the incident. The City alleges, and all parties apparently agree, that the malfunction was caused because the "door to the meter cabinet had been forced open and all circuit breakers were turned off by vandals." Apparently, the traffic control box was secured by a locked handle as well as a padlock. The City was informed of the malfunction at 8:10 p.m. on May 2, 1992, and repaired the problem by 8:30 p.m. that same evening.
Urena, the driver of the car, set forth her version of the events in an answer to an interrogatory:
I was proceeding south on Straight Street approaching the intersection of Broadway. As I entered [the] intersection I observed a motorcycle approaching on [my] right at an excessive rate of speed; I assumed that the other vehicle had a red light as I did not observe a red light for [my] vehicle and also assumed that the motorcycle would slow down as I had entered the intersection first; when [the] motorcycle did not appear to slow down I attempted to brake [my] vehicle and was struck on the passenger side ... by the motorcycle.
Pfeifer also set forth his version of the events in response to an interrogatory:
was travelling at approximately 25 mph and entered the intersection .... When [my] motorcycle was more than 3/4 of the way through the intersection, the motorcycle and the [passengers] were struck by a vehicle operated by the co-defendant, Urena and owned by the co-defendant, Heredia. At the time of the accident, the light controlling traffic at the intersection was inoperable. I never saw the other vehicle prior to the accident occurring.
He added in a handwritten statement, "The street light did not catch my attention. I learned that it was not in working condition [only] after the accident." Pfeifer claimed to have no knowledge as to how long the traffic signal had been malfunctioning.
Grzanka submitted an expert report, dated November 28, 1995. The expert reached the following Conclusions "with a reasonable degree of scientific certainty:"
1. Winko-Matic should have been aware of the vandalism susceptibility of the traffic control signal device and the potential dangers of not properly making their traffic control signal devices tamper-resistent.
2. The subject traffic control signal device was defective in that it did not contain vandalism deterrent devices.
3. The incident could probably have been avoided by the implementation of simple, inexpensive, and easy-to-install vandalism deterrent safety protection.
Plaintiffs argue that the court should not have granted summary judgment to the City because there were genuine issues of fact still in dispute. Brill v. Guardian Life Ins. Co. 142 N.J. 520, 540, 666 A.2d 146 (1995); R. 4:46-5. The Judge was to determine whether
the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.... If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of Rule 4:46-2."
Plaintiffs contend that the City is not immune under the Tort Claims Act, N.J.S.A. 59:4-1 to -9, *fn1 but rather is liable under the municipal property liability section of that Act, N.J.S.A. 59:4-2. The City claims it is not liable because it had no notice of the signal's malfunction.
N.J.S.A. 59:4-2 provides:
A public entity is liable for injury caused by a condition of 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 ...
b. a public entity had actual or constructive notice of the dangerous condition ... 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 ...