On appeal from the Superior Court of New Jersey, Law Division, Hudson County, HUD-L-4508-01 and HUD-L-6166-01.
Before Judges Kestin, Alley and Fuentes.
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The appeals in these consolidated cases arise out of a horrific October 2000 accident on Route 7 in Jersey City that killed four persons: Rahul Patel (Rahul), the driver of a vehicle that crossed over into the oncoming traffic, and three of Rahul's four passengers. The surviving passenger, the estates of all of the deceased passengers, and their interested relatives (collectively, the Pandya plaintiffs) filed a complaint against the State of New Jersey and New Jersey Department of Transportation (collectively, DOT) and others who are not involved in the appeal. Rahul's estate filed a separate action against the DOT, and the matters were consolidated.
On April 15, 2003, the DOT filed a motion for summary judgment. The Pandya plaintiffs filed voluminous documentation in opposition and Rahul's estate filed a cross-motion seeking to strike the DOT's defense asserting immunity under N.J.S.A. 59:4-5. On July 3, 2003, the trial judge entered orders granting summary judgment in favor of the DOT and denying the cross motion. On August 5, 2003, the judge issued a written opinion on the motions and entered an amended final order on September 23, 2003.
The Pandya plaintiffs appealed in A-813-03T2, and the Rahul estate appealed in A-957-03T2; the appeals were subsequently consolidated. Because the Rahul estate has joined in the brief of the Pandya plaintiffs, we use"plaintiffs" to refer to both sets of plaintiffs, collectively, in this opinion.
We reverse and remand, because of the existence of a genuine issue of material fact precluding summary judgment with regard to the DOT's entitlement to immunity under the Tort Claims Act, N.J.S.A. 59:4-5.*fn1
The stretch of highway where the accident occurred is known as Route 7 in Jersey City (formerly known as Route 10 and sometimes referred to as Newark Avenue), just west of the Charlotte Circle and approaching the Wittpen Bridge over the Hackensack River. (We will sometimes refer to it as the"roadway.") The Charlotte Circle was within three-tenths of a mile of the Wittpen Bridge. The westbound portion of the roadway had a rightward curve with a rising grade, just prior to the beginning of the bridge elevation.
The State became the owner of the roadway in about 1929 and its width, grade, curvature, and curbing design were set forth in plans dated May 10, 1937, and approved by the State Highway Commissioner. Plans dated February 13, 1956, and May 31, 1973, showed the roadway, as built, as part of repaving or resurfacing projects, respectively, but no detail about the roadway appears from those documents in the record.
The record contains Plans C-2A, C-3A and C-4A, which are all dated February 4, 1998, and which showed the roadway with two westbound lanes as it existed prior to the accident involved here. Those February 1998 plans were drawn as part of a DOT project to work to reconstruct the Wittpen Bridge and to change the Charlotte Circle. The DOT planned to build a new bridge, and upon its completion, the old bridge would be demolished. The approach roadway would also need to be realigned. This construction was not yet underway as of October 2000. The record does not show, however, whether a plan was ever approved for the roadway that affirmatively embodied a design using two lanes of westbound travel through the curve. None of the drawings from 1937, P-5A, P-5B or P5C, showed two lanes of travel for the roadway. The DOT's legal liaison Patrick Weber believed that he had seen plans that showed the"striping plan" for that roadway, meaning how the lane markings on the roadway would be painted, but he agreed that the striping plans prior to the accident were not in the 1937 drawings. Richard Dunne, the DOT's Director of Design Service and Deputy State Transportation Engineer, recalled reviewing plans from between the 1930s and 1970s that showed two lanes of westbound travel on the roadway, but he could not identify the plans more specifically.
DOT had taken"photo logs" of this area of the roadway on September 12, 2000, as a record of its appearance. These photo logs showed that there were two westbound lanes of travel on the roadway, marked by a painted broken line dividing the two lanes.
The record also contains a drawing showing a striping plan for the Charlotte Circle on the approach to the Wittpen Bridge, Routes 7, 1 & 9, sometimes referred to in the record as P-5D, as originally drawn on September 25, 1984, by"A. Bernhard" of the DOT's Traffic Bureau, and revised on May 14, 1986, and August 11, 1987, as listed in the box for revision entries on the drawing form (the 1984-87 drawing). That drawing showed one lane of traffic at the curve where Route 7 begins its approach to the bridge, and becoming two lanes of traffic over the bridge. No one ever explained why this document was drawn or whether it was ever approved, but it does not appear to have been implemented any time prior to October 9, 2000. Richard Eng, a DOT Project Engineer who made the May 14, 1986, revision to the 1984-87 drawing, did not recall why the plan was drawn. Chester J. Lyszczek, the DOT's Executive Director of North Regional Operations having responsibility for maintenance of Route 7 in Jersey City at the time of the collision, was considered the most knowledgeable person at the DOT regarding the conditions on the roadway. Lyszczek had not been involved in responding to the discovery requests for plans regarding the roadway, and when shown the 1984-87 drawing, he responded that he did not know about any other plans for that area in effect prior to October 9, 2000.
At about 1:00 a.m. on October 9, 2000, approximately twelve hours prior to the accident involving the victims in these appeals, a separate accident occurred on the roadway. Weather conditions were clear, cold, and dry. A Nissan car driven by Catarina A. Luz was in the left lane of the two westbound lanes of Route 7, coming around the curve toward the bridge. Luz lost control of the vehicle and began to"fishtail," crossing the double yellow lines and entering the left lane of the two eastbound lanes of Route 7. Gary W. Gerwer was driving a Mack garbage truck traveling downhill on the bridge in the left eastbound lane when he observed the car fishtail and then begin to straighten out. Despite braking and veering to the right, Gerwer was unable to prevent the truck from colliding with the car. Neither Gerwer nor his passenger, Shaun Brandon, was injured, but Luz died at the scene, her vehicle having been crushed under the truck. Gerwer estimated that the Nissan and truck speeds prior to the collision were fifty-five and thirty five miles-per-hour respectively. Brandon estimated them as sixty miles-per-hour for the Nissan and forty-five miles-per hour for the truck. According to Gerwer, who regularly traveled on westbound Route 7 on his way to work, there was a dip in the westbound curve that could have caused Luz's vehicle to fishtail, and excessive speed could cause a driver to lose control in the dip.
The details concerning the fatal accident in suit, which occurred later on October 9, 2000, were these. Ankit S. Pandya, Dhaval Patel, Chirag Patel, and Pallavi Zalawadia, all Jersey City residents, entered Rahul's red Toyota vehicle to travel with him to Newark. Rahul and Zalawadia, who were college students at NJIT, and Pandya, a Rutgers student, were on their way to afternoon classes. Dhaval and Chirag Patel were high school seniors who planned to spend the Columbus Day holiday on campus with the others. Zalawadia had ridden with Rahul to classes about once a week since September, when the semester had started. Once or twice they traveled via ...