Argued telephonically on April 3, 1998
On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Before Judges Long, Stern and Kleiner.
The opinion of the court was delivered by: Kleiner, J.A.D.
Plaintiff, Nora Luczak, appeals from a directed verdict granted to defendant, Evesham Township, in plaintiff's wrongful death action brought against defendant under the Tort Claims Act, N.J.S.A. 59:1-1 et seq. (The Act). Defendant was granted a directed verdict based upon plan/design immunity, pursuant to N.J.S.A. 59:4-6.
Plaintiff brought this action against defendant alleging wrongful death after her husband was killed while driving on a road in Evesham Township on January 29, 1989. She alleged that her husband died as a result of a dangerous condition at the intersection of Kettle Run Road and Borton's Road, public roads owned and controlled by defendant. She asserted that defendant was responsible for her husband's death because it had actual and constructive notice of the dangerous condition for a sufficient time prior to the fatal accident and was palpably unreasonable in failing to correct it.
After protracted discovery, defendant filed a motion for summary judgment based upon, among other things, plan/design immunity, which was denied except for the count in plaintiff's complaint regarding defendant's failure to construct or erect ordinary traffic signals, signs or markings under N.J.S.A. 59:4-5. Discovery then continued and eventually a jury trial commenced on October 15, 1996. After five days of trial, plaintiff rested and defendant moved for a directed verdict based upon plan/design immunity, N.J.S.A. 59:4-6, which was granted on November 13, 1996.
It was conceded at trial that Kettle Run Road, previously an old stagecoach road, was never formally designed. Defendant submitted no evidence concerning when and how the road was upgraded from a stagecoach road to a paved roadway over which cars travelled at least up to fifty miles per hour. There was evidence that certain short-term improvements, suggested in a 1984 report and a 1985 report by a traffic consultant hired by defendant to study Township traffic problems, were made to Kettle Run Road, including the posting of signs indicating an upcoming curve. Defendant, however, never implemented the long-term solutions suggested in the 1984 and 1985 reports. In fact, the Township Manager, Burton Conway, testified at his deposition, which was read at trial, that while he was Township Manager from 1984 to 1989, the Township had no long-range plans for the rehabilitation of Kettle Run Road which would have included straightening the curve and adding shoulders, as suggested by the consultant's two reports. He also could not recall anyone within the Township discussing the condition of Kettle Run Road even after the reports were generated.
The trial Judge granted defendant's directed verdict motion, concluding that, by paving Kettle Run Road, defendant in effect designed the road, and therefore was entitled to immunity for any injuries proximately caused by the design. He stated:
Clearly, this was a decision by the municipality at its highest level, the mayor, council level as to what to do in connection with Kettle Run Road.
And I determine, as a matter of law, that their decision to act or not act or to do certain things was, in fact, discretionary. . . .
This was a road that came into being that none of us know exactly. But at some point in time, it was decided by the municipality to improve that road. The decision to improve it was really a decision, in effect, to build a road because all that existed was a dirt path or dirt road.
It is not for the judiciary to second guess as the cases have talked about decision making on the part of the municipality. . . .
I am absolutely convinced based upon the arguments that I have heard that this is a design slash improvement situation. . . .
On appeal, plaintiff argues that the trial Judge erred in granting defendant a directed verdict based on plan/design immunity because defendant failed to prove that the specific design or plan of Kettle Run Road and/or improvements thereto were the subject of ...