On appeal from the Superior Court of New Jersey, Law Division, Morris County, MRS-L-3644-00.
Before Judges Kestin, Axelrad and
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs, Edward Coyne (Coyne or plaintiff) and his wife Sandra Coyne, who has filed a per quod claim, appeal from the Law Division's summary judgment dismissing their complaint against the State of New Jersey and Vincent McDaniel, a state employee. Coyne was injured when a van he was driving collided with a vehicle McDaniel was driving as part of a highway barrier-cleaning operation, which involved cleaning debris from the shoulder adjacent to the barrier that divided the north and southbound sides of the road. The judge dismissed plaintiff's complaint on the grounds that defendants were immune under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to -12-3, specifically N.J.S.A. 59:2-3a, which immunizes both public employees and public entities for the exercise of discretion within the scope of employment. See Willis v. Dept. of Conservation & Econ. Dev., 55 N.J. 534, 540 (1970); Cobb v. Waddington, 154 N.J. Super. 11, 16 (App. Div. 1977), certif. denied, 76 N.J. 235 (1978). We affirm.
The following facts were before the court when it decided the summary judgment motion. On December 14, 1998, at approximately 1:00 p.m., plaintiff was traveling north in a commercial van on Route 287 in Montville Township. According to plaintiff, he was in the left lane, driving between sixty-five and seventy miles per hour (mph), behind an eighteen-wheel tractor-trailer, with another truck in the center lane beside him. Suddenly, the tractor-trailer that was traveling in front of plaintiff moved into the center lane. As it did so, plaintiff first observed the New Jersey Department of Transportation (DOT) truck that McDaniel was driving. McDaniel's truck had an electric arrowboard mounted on it, with a flashing arrow, pointing to the right -- toward the center lane of the highway. McDaniel's truck was in the left lane, and, according to plaintiff, it"appeared to be still."
Once plaintiff saw the DOT truck, he tried to move to the center lane, but he could not do so or stop in time. He crashed his van into the right rear of the DOT truck, causing him serious injuries. The accident took place at milepost 48.4, where the speed limit was 65 mph. Plaintiff had clear visibility and had the tractor-trailer not been in front of him, he could have seen the DOT truck from a sufficient distance to avoid hitting it. He said he"could have seen it... five miles back." Plaintiff denied seeing any warning signs before the accident site, which indicated that the left lane of the highway would be closed ahead.
At the time of the accident, the DOT employees were conducting a shoulder-cleaning, or barrier-cleaning operation, which involved cleaning debris from the barrier that divides the north and southbound sides of the highway. Multiple vehicles were involved in the cleaning operation, including a mechanical sweeper, a dump truck, a pick-up truck with strobe lights driven by Gregory Rusnak, and the dump truck driven by McDaniel that contained an impact attenuator and a flashing directional arrowboard. A work crew walked in front of the DOT vehicles, removing debris from the shoulder of the road adjacent to the barrier. At various times, the sweeper and dump truck were required to stop so the debris could be taken from the sweeper and placed into the dump truck. Because the width of the shoulder varied, it was necessary for the mechanical sweeper to travel both along the shoulder of the road and in the left lane of the roadway. According to witnesses and the police report, another truck was located between one-half and one mile behind the clean-up operation. That truck, which moved in conjunction with the work detail, contained a flashing sign on it that said"left lane closed ahead."
The truck driven by McDaniel performed three safety functions. The arrowboard mounted on the truck alerted oncoming drivers to move to the center lane; the vehicle protected the work detail that was walking ahead of it; and by virtue of its impact attenuator, the truck protected oncoming drivers who could strike the rear of an otherwise unprotected vehicle.
Both the spacing of and the order in which the DOT vehicles were proceeding along the highway were disputed. The testimony of the witnesses was not consistent concerning how many vehicles were in the convoy and exactly where the vehicles were located in relation to each other. These disputes are not material, however, to the undisputed fact that McDaniel's vehicle was in the left lane when struck by plaintiff.
The speed of both plaintiff's and McDaniel's vehicles at the time of the accident was also in dispute. Plaintiff said McDaniel's truck was not moving at the time of impact. McDaniel, on the other hand, when asked to estimate his rate of speed at the time of the collision, said:"Maybe fifteen miles an hour."
Plaintiff testified he was traveling sixty-five to seventy mph prior to impact. According to Leonard Stanfield, an independent witness who gave a statement to plaintiff's investigator, as plaintiff passed Stanfield going north on Route 287,"he was accelerating -- I don't think he was speeding because I was doing around 60-62, his speed was 65 or less. He was in a regular position to pass me when he [saw] the construction truck [and] he accelerated." Another independent witness, Raymond Kazlauskas, told the investigating state trooper that plaintiff's vehicle"was moving pretty fast, my truck was set [at] 65 mph. He went by me fast. I estimate his speed at approx. 70 mph."
Whether DOT employees had placed a sign on a truck in the median, in an area south of the work detail site, is not genuinely disputed. Plaintiff denied seeing such a sign; but, the other witnesses did. Kazlauskas said that prior to coming upon the accident site he"saw a sign in the median which said'left lane closed ahead, roadwork.'" The state trooper who was at the accident scene noted in his report that,"DOT had posted a sign board prior to the work detail which stated'left lane closed ahead.'" Plaintiff's expert's report indicated that the DOT"had posted a signboard prior to the work detail which stated'left lane closed ahead.'"
Rusnak, who was driving a DOT pick-up truck in the convoy, said the first warning sign a motorist would encounter prior to coming upon the work detail would have been the"big flashing sign on top of a five-man dump truck that read'left lane closed ahead.'" The truck was located approximately three-quarters of a mile behind the work detail, in the grassy area on the left, just off the shoulder. The driver of the truck on which the sign was mounted kept the truck approximately three-quarters of a mile behind the work detail. Rusnak noted that although the DOT Safety Manual (manual) did not require this warning, the sign was placed on the truck as an extra safety measure. John Scala, the DOT crew supervisor, said"the message board... wasn't even required [by the manual]. We decided to put it out anyway."
The width of the left shoulder in the area of the accident is disputed. The left shoulder width varied along Route 287. According to plaintiff's engineering expert, John Lacz, the width varied from three feet to twelve feet, and near the point of the accident the shoulder was approximately three feet wide. Lacz never stopped to measure the shoulder, but"gauged" its width while driving his vehicle along the road. Lacz testified at his deposition that a three-foot shoulder was the equivalent of"no shoulder," but he acknowledged no authority to support that position and he did not arrive at that conclusion in his written report. Mark Marpet, the State's engineering expert, who measured the left shoulder, noted in his report that between the mileposts where the accident took place,"the shoulder is of full width," and he"was able to drive fully on the shoulder with approximately two feet of clearance between [his] vehicle and both the median barrier and the left travel-lane's left edge line." John Deighan, one of plaintiff's co-workers who was driving on Route 287 about five minutes behind plaintiff on the day of the accident, testified at his deposition that the shoulder to the left of the road was slightly narrower than the traveled roadway.
Scala said the barrier cleaning on the day of the accident was considered a"slow moving" operation under the terms of the manual. The pertinent provisions of the manual read:
The safety rules in this manual are based on years of practical experience combined with knowledge gained from a great many national accident prevention studies....
Employee Responsibilities ...