On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-9254-97.
Before Judges Skillman, Conley and Wecker.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a three-day liability trial, the jury concluded that, although Plainsboro Township*fn1 had created a dangerous condition of which it had notice and which was a proximate cause of plaintiff's personal injury, the Township's action and/or inaction with respect to remedying the condition was not palpably unreasonable. On appeal plaintiff raises several contentions, only one of which we need address as our consideration as to that issue leads us to conclude a reversal and new trial is required. That issue concerns the trial judge's exclusion of evidence of the motivating force behind the Township's remedial efforts, that is, prior accidents in the general vicinity of plaintiff's accident, which had caused serious injury and death. We are convinced under the particular circumstances that the evidence was highly relevant to the only real issue in contention, whether the Township was palpably unreasonable in its efforts to remedy the dangerous condition which the jury concluded was a proximate cause of plaintiff's injury. We are further convinced the exclusion of this evidence cannot be considered harmless error.
Here are the facts. At approximately 6:19 p.m. on January 3, 1997, plaintiff, who has cerebral palsy and uses crutches to assist him in walking, entered the north side of a crosswalk on Plainsboro Road, near the entrance to Morris Davidson Park. The crosswalk is not located at a signaled intersection, but is located between the Hunters Glen Drive/Deer Creek Drive intersection and the T-intersection at which Thoreau Drive intersects with Plainsboro Road across from Morris Davidson Park. The crosswalk, close to the corner of Thoreau Drive, crosses the four lanes of Plainsboro Road, which runs east and west. As plaintiff entered the crosswalk, he began crossing the westbound lanes of Plainsboro Road. Defendant Jordan, traveling in the left lane of the westbound traffic at approximately forty miles per hour, struck him.
At the time of the accident, the crosswalk was painted with two lines and "hash marks going across." There was no controlling traffic light at this crosswalk, although one was located 1280 feet east of the crosswalk at the intersection of Tamarron Drive/George Davidson Drive. The speed limit on Plainsboro Road was forty-five miles per hour. Posted signs warned both westbound and eastbound motorists that they were approaching a crosswalk. At the crosswalk itself, signs informed both westbound and eastbound motorists of the State law requiring them to "yield to pedestrians in a crosswalk."
Although plaintiff urged a number of actions that could have been taken to improve the safety of the crosswalk prior to his accident, the lighting, or lack thereof, was the primary focus. In that respect, it is undisputed that at the time of the accident the lighting was poor. Indeed, while there was a street lamp on the south side of the crosswalk illuminating the eastbound lanes, there was none on the side from which plaintiff entered. Moreover, there were no street lamps on that side of Plainsboro Road from the corner of Hunters Glen Drive/Deer Creek Drive east to the corner of Tamarron Drive/George Davidson Drive, a distance that encompassed the park.
Thus, the accident report stated "intersection is lit by a street lamp, but it would not be considered a well illuminated area." The driver, defendant Jordan, never saw plaintiff until impact and an independent witness to the accident stated that all he "noticed was a silhouette of something. . . . It was very dark."
Plaintiff's claim against the Township, of course, is governed by the Tort Claims Act, in particular N.J.S.A. 59:4-2, which 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 either:
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a 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.
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 failure to take such action was not palpably unreasonable. See generally, Wymbs ex rel. Wymbs v. Township of Wayne, 163 N.J. 523, 531-32 (2000); Garrison v. Township of Middletown, 154 N.J. 282, 286 (1998).
The evidence here was overwhelming that the crosswalk was a dangerous condition and that danger was a contributing factor to the accident. It is also undisputed that the Township had long been aware of the danger at this crosswalk and the general area, which it had for over a year before the accident made various efforts to remedy. It is those efforts which were the focus of the dispute during the trial, not in terms of what the Township had actually done, but in terms of whether what had been done up to the date of the accident was palpably unreasonable.
To put it another way, as we have said, illumination in the area was undisputably poor. Within five days after the accident, and following a call by the Chief of Police to PSE&G, four new street lamps, among others, were installed along the westbound side of Plainsboro Road which runs along the park entrance and which would have provided better lighting for the side of the crosswalk plaintiff was using. Indeed, one of the new lamps is located at the north side of the crosswalk and now illuminates the westbound lanes. This new illumination, therefore, was clearly feasible and could have quickly been installed. Its cost was not prohibitive. The question was whether the Township's failure to obtain this better illumination sooner was palpably unreasonable.
In discussing what the Legislature meant by palpably unreasonable governmental behavior, we said in Williams v. Phillipsburg, 171 N.J. Super. 278 (App. Div. 1979), cited with approval in Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985):
We conclude that the legislative intention was to allow sufficient latitude for resourceful and imaginative management of public resources while affording relief to those injured because of capricious, arbitrary, whimsical or outrageous decisions of public servants. We have no doubt that the duty of ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff. [171 N.J. Super. at 286.]
Palpably unreasonable conduct is, of course, more than mere negligence; but we have said that it does "not necessarily mean 'very' negligent, 'grossly' negligent or 'extraordinarily' negligent," Holloway v. State, 239 N.J. Super. 554, 560 (App. Div. 1990). The Supreme Court reversed in part our decision in Holloway, but in doing so, it quoted the above language. State v. Holloway, 125 N.J. 386, 404 (1991). As posed by the Supreme Court, the inquiry is whether no prudent person could approve of the governmental entity's action or inaction. Id. at 403; Kolitch v. Lindedahl, supra, 100 N.J. at 493.
The jury here was properly charged on the "no prudent person could approve" language and, we, thus, will consider the issue in that context. The test requires consideration of what the Township did in the face of all of the attendant circumstances, including, of course, the extent of the known danger and what it considered to be the need for urgency.
These are the facts which bear upon that issue. Citizen concerns over the safety of Plainsboro Road in this area date, as far as the record reveals, as early as 1991.*fn2 The Traffic Safety Officer for the Township as of mid-1995, Officer Molnar, who was principally responsible for initiating the remedial efforts at issue here, acknowledged that the problems with the lighting and pedestrian problems "just didn't occur overnight."
As to this particular crosswalk, a letter from a resident in the area to Officer Molnar in September 1995 stated "I have tried on more than one occasion to be aware of pedestrians at the Park crosswalk, but because the road is so wide here and traffic moving rather fast, I am not always able to see pedestrians in time to stop . . . ." And, a December 1995 report from the Township Engineer suggested various options to alleviate the danger at this particular crosswalk, including a pedestrian overpass, the construction of a traffic signal with pedestrian activation, or a flashing pedestrian crossing warning sign.
Of particular importance here, the concerns were not limited just to the particular pedestrian crossing in which plaintiff was struck. As expressed in a July 12, 1995, letter from the Chief of Police responding to a citizen complaint of the dangers faced by pedestrians attempting to cross Plainsboro Road, the area focused upon was Plainsboro Road "between the Scudders Mill intersection and the Cranbury Township line." This area encompasses the crosswalk at issue here. Officer Molnar testified rather emphatically that the dangers to pedestrians crossing Plainsboro Road "existed throughout, I would call it, the Plainsboro Corridor. . . . " This corridor encompassed three crosswalks, including the crosswalk here, and the officer stated that "the problem for pedestrians and the problem for motorists were the same at these crosswalks . . . throughout the corridor." Although there were a number of citizen complaints prompting the Township's attention, the real cause for concern was the fact that in 1995 and 1996 this "corridor" had been the site of three prior accidents involving pedestrian crossings and serious injury and death. It is somewhat difficult to accurately place those accidents in relationship to the location of plaintiff's accident. Along with the trial testimony, we have considered the police reports of these other accidents, which have been included in the appendix but which were not marked or placed in evidence during the trial, and various "not to scale" diagrams of the area, which the record seems to reflect were marked during the trial. As best we can tell, it seems that the first of the prior accidents occurred on September 14, 1995, at 8:46 p.m. on the eastbound side of Plainsboro Road one-tenth of a mile east of Deer Creek Drive, between Deer Creek Drive and Brittany Drive. Just east of Brittany Drive is Thoreau Drive, both of which T- intersect with the eastbound side of Plainsboro Road. The crosswalk at issue here runs from the corner of Thoreau Drive across Plainsboro Road to a point near the park entrance on the westbound side of Plainsboro Road. The first accident, then, occurred within a block of the crosswalk.
In this area, prior to and at the time of plaintiff's accident, there were a number of street lamps lighting the eastbound side of Plainsboro Road. There are no corresponding street lamps between the intersection of Hunters Glen Drive/Deer Creek Drive and the intersection of Tamarron Drive/George Davidson Drive illuminating the westbound lanes of Plainsboro Road, in between which lies the park. But there are lamps at the corners of the Hunters Glen Drive intersection and Tamarron Drive intersection. At the time of the accident in September 1995, the investigating ...