Before Judges Brochin,Eichen,and Wecker
The opinion of the court was delivered by: Brochin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 1999
On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
This is an appeal by plaintiff Colleen Weiser, administratrix ad prosequendum of the estate of Charles Weiser, deceased, from an order for summary judgment which dismissed her complaint against defendant County of Ocean. For the following reasons, we affirm. Charles Weiser was killed as the result of a two-car automobile accident. Ms. Weiser settled her claim against the driver of the second vehicle, Ms. Joey Amanda Staggard, and then sued the State of New Jersey and the County of Ocean. Plaintiff alleged that a proximate cause of the fatal accident was their "causing to exist and maintaining a dangerous condition of the highway, without adequate warnings, which constituted a trap and which caused . . . Joey Amanda Staggard, to turn her motor vehicle into the path of" decedent's vehicle. The State consented to pay the arbitration award entered against it. The subject of this appeal is Ms. Weiser's claim against the County of Ocean.
The accident occurred near an intersection between State highway, Route 72 and Ocean County highway, Route 554. The intersection is a "Y-intersection." West of the intersection, State Route 72 the leg of the "Y," running approximately east and west. At the point of intersection, State Route 72 turns slightly to the south to form one branch of the "Y" and County Route 554 turns slightly to the north to form the other branch. The angle of separation between the two roads at the point where they diverge is very slight.
Immediately before the collision, Mr. Weiser's car was traveling westbound on Route 72, just west of the intersection. Ms. Staggard's vehicle was traveling eastbound on Route 72, also west of the intersection. There was no turning lane on Route 72 and there were no traffic control signals or warning signs at the intersection of the two highways. Because of the angle of divergence of the two roads, a vehicle traveling eastbound on Route 72 whose driver wanted to turn onto Route 554 and to continue eastbound, like Ms. Staggard, would tend to enter Route 554 by cutting across Route 72, driving eastbound for some distance in the westbound lane of Route 72.
That is what Ms. Staggard did. While she was cutting across Route 72, driving eastbound in its westbound lane, Mr. Weiser was driving his car westbound in the westbound lane of Route 72, just west of the intersection. Ms. Staggard's eastbound travel in the westbound lane of Route 72 brought her vehicle to a head-on collision with Mr. Weiser's vehicle. The premise of plaintiff's claim against the County of Ocean is that the condition of the intersection which tended to cause Ms. Staggard's eastbound vehicle to drive in the westbound lane of Route 72 was a "dangerous condition" of property within the meaning of N.J.S.A. 59:4-1 and -2.
The County moved for summary judgment. It argued that N.J.S.A. 59:4-1 and -2 are not applicable because the accident happened on Route 72, not on property "owned or controlled" by the County. The County also contended that it is immunized from liability by N.J.S.A. 59:2-3(c) and, in addition, by N.J.S.A. 59:2-3(d). The summary judgment court agreed with all three of defendant's arguments. We concur with defendant's first argument, that there is no basis for liability because N.J.S.A. 59:4-1 and -2 are inapplicable, and we therefore do not need to consider its arguments based on the immunities conferred by N.J.S.A. 59:2-3(c) and -3(d).
To recover under N.J.S.A. 59:4-2, a plaintiff must show either that his injury was caused by "a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment [which] created the dangerous condition," N.J.S.A. 59:4-2(a), or that the public entity "had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition," N.J.S.A. 59:4-2(b). Plaintiff's brief alleges both bases for the County's liability in the following terms:
1. The County created the dangerous condition of property by paving and extending the paved width of Route 554 into highway 70 [sic] as a trap for oncoming motorists; and
2. Having constructive and actual notice of the dangerous condition of property a sufficient time before the fatal death [sic] of decedent to have protected against the fatal accident.
The dangerous condition which was a proximate cause of Mr. Weiser's fatal accident was the angle of intersection of Routes 72 and 554 and the absence of a turning lane and markings on Route 72 to prevent vehicles from traveling into traffic heading in the opposite direction. There is no support or explanation in the record for plaintiff's assertion that "paving" the County road created the danger. If the County is liable, its liability rests either on its having created the dangerous intersection or, after notice, having failed to protect against it.
The record dose not support plaintiff's allegation that the State highway, Route 72, existed in its current location before the County road was in place. The only evidence submitted to us on that issue is contained in plaintiff's expert's report. According to that report, the State built Route 72 after County Route 554 was already in place. Since the State highway was built after the County road, the State created the intersection. The angle at which the two highways diverge could not have been the result of ...