The opinion of the court was delivered by: Coleman, J.
On certification to the Superior Court, Appellate Division.
This case involves a claim that a sharp curve in a roadway was a "dangerous condition" on public property as defined in N.J.S.A. 59:4-1a of the New Jersey Tort Claims Act. The specific issues raised involve a number of evidentiary rulings made by the trial court that, according to plaintiffs, improperly restricted their opportunities to satisfy their burden of proof. The jury found that plaintiffs had failed to prove that the road in question was a dangerous condition. The Appellate Division affirmed, finding that none of the alleged evidentiary errors was relevant to the issue of whether the road was a dangerous condition.
We hold that properly presented evidence of prior accidents at the same location as the one involved in a trial may be admissible to prove the existence of a dangerous condition. We also hold that the trial court committed reversible error when it permitted a surprise key witness for the State to testify over plaintiffs' objections.
On May 29, 1991, four high school students, Nancy Connelly, Ian Wymbs, Frank Goffredo, and Mark Harding, drove home together from a church meeting in Wayne Township (Township), Passaic County (County). Connelly, who was driving her mother's car, dropped off Harding and proceeded onto Preakness Avenue. As she proceeded westbound on Preakness Avenue, she entered a curve between Garside Avenue and Jansen Lane and lost control of the vehicle. The car swerved several times, traversing the eastbound lane of Preakness Avenue, and then traveled sideways, eventually striking a utility pole on the eastbound shoulder of the roadway. Fortunately, all of the vehicle's occupants survived. Wymbs, however, sustained severe head injuries resulting in substantial mental and physical impairments.
Preakness Avenue is owned by the County and is patrolled by the Township of Wayne Police Department. Although no speed limit sign was posted on the westbound side, the area is residential with a speed limit of twenty-five miles per hour. N.J.S.A. 39:4-98b(1). On the night of the accident, there were no street lights illuminating the curve. There was one yellow warning sign with a black curve symbol placed approximately 150 feet from the curve. It is undisputed that the sign was partially obstructed by foliage.
On December 16, 1992, Wymbs and his parents initiated the present litigation against Connelly, her mother, the Township, the County, the State of New Jersey, Public Service Electric and Gas Company (PSE&G), and several fictitious individuals, corporations, and public officials. The relevant portion of the complaint alleged that the public entities and employees were liable for Wymbs's injuries because the curve constitutes a "dangerous condition" under the New Jersey Tort Claims Act, N.J.S.A. 59:4-1a. Based on a settlement reached prior to trial, plaintiffs filed voluntary stipulations dismissing the complaint with prejudice against Connelly, her mother, and PSE&G. The three public entities were the only remaining defendants in the case at the time of trial.
Plaintiffs asserted three theories of liability to support the claim that the curve on Preakness Avenue was a dangerous condition: (1) the physical characteristics of the roadway were inherently dangerous, including the curve's severity, radius, and super-elevation; (2) the curve's warning sign failed to adequately warn motorists of the severity of the curve; and (3) the warning sign was obstructed by foliage. Defendants denied the curve was a "dangerous condition", arguing instead that the accident was caused solely by the driver's negligence. Alternatively, defendants contended that they lacked sufficient control of the roadway and its signage to be held liable.
Plaintiffs presented expert testimony by William Poznak, a civil engineer and land surveyor, in an attempt to establish the dangerousness of the curve. Poznak testified that his measurements indicated that the curve was 40.74 degrees with a super elevation of 0.064. *fn1 Poznak asserted that for a twenty-five miles-per-hour zone, the maximum curvature should have been 31.49 degrees, and added, "if the super elevation was higher, it would be safer." Poznak conceded, however, that the curve could be safely negotiated at twenty-one to twenty-five miles per hour, and hazardous speeds for driving that curve were "around thirty, thirty-five."
Plaintiff presented three additional types of evidence to establish the existence of a dangerous condition and that defendants had notice of such a condition. Plaintiff offered prior signage evidence, testimonial evidence regarding prior accidents at the curve, and a 1966 engineering plan calling for a widening of the curve's radius that was never implemented. The trial court limited the use of that evidence to the issue of notice of a dangerous condition pursuant to N.J.S.A. 59:4-3, and disallowed it as substantive evidence of a dangerous condition. Finally, over plaintiffs' objection, the trial court permitted the State to call a previously undisclosed witness, William Anderson, a Traffic Engineer.
The jury returned a verdict, by a vote of five to one, finding plaintiffs had failed to prove "by a preponderance of the evidence that the nature of the curve and the warning signs on Preakness Avenue between Garside and Jansen created a substantial risk of injury when used with due care." Plaintiffs' motion for a new trial was denied. The Appellate Division affirmed the judgment in an unpublished opinion. We granted plaintiffs' petition for certification, 161 N.J. 332 (1999), and now reverse.
The New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, specifies the circumstances under which a public entity can be held liable for injuries to another. "Generally, immunity for public entities is the rule and liability is the exception." Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999). The exception relevant to this case is found in N.J.S.A. 59:4-2, which provides that public entities may be liable for injuries caused by a "dangerous condition" on the property of a public entity. A successful plaintiff under this subsection of the TCA must prove by a preponderance of the evidence that "at the time of the injury the public entity's property was in a dangerous condition, that the condition created a foreseeable risk of the kind of injury that occurred, . . . that the condition proximately caused the injury. . . . [and that] the action the entity took to protect against the [dangerous] condition or the failure to take such action was . . . palpably unreasonable." Garrison v. Township of Middletown, 154 N.J. 282, 286 (1998) (internal quotations omitted). The term "palpably unreasonable" connotes "behavior that is patently unacceptable under any given circumstance." Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985). Within the TCA, a "dangerous condition" is defined as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1a. A dangerous condition under that provision refers to the "physical condition of the property itself and not to activities on the property." Levin v. County of Salem, 133 N.J. 35, 44 (1993)(citations omitted).
Plaintiffs argue that the trial court erred in limiting the use of evidence of prior accidents, prior warning signs, and a 1966 engineering plan to the issue of notice of a dangerous condition. Plaintiffs, relying on Manna v. State, 129 N.J. 341, 348 (1992), contend that multiple accidents at a specific location establish a prima facie case under N.J.S.A. 59:4-2. Plaintiffs maintain that by "limiting the evidence of prior accidents at the site, the trial court prejudicially prevented them from utilizing all possible proofs in connection with the roadway's dangerous condition." Finally, plaintiffs contend that they were severely prejudiced by the surprise testimony presented by William Anderson. They argue that the jury could have found the curve was not a dangerous condition based solely on Anderson's testimony.
Both the State and the County argue that the trial court properly limited the prior-accident evidence to the issue of notice because plaintiffs failed to proffer any testimony with regard to the specific causation of any of the accidents. According to the State, plaintiffs did not offer such evidence because the police reports of the prior accidents clearly indicated that none of them was attributable to the curve. The Township agrees that the trial court properly limited the testimony regarding prior accidents, and argues that "plaintiffs cannot ...