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Rose v. Conde

January 24, 2007

JENNIFER ROSE; FRANK ROSE, HER HUSBAND, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR CARLY AND FRANK ROSE, MINORS, PLAINTIFFS-APPELLANTS,
v.
GREGORY A. CONDE, JR., COSMO'S RECYCLED AUTO PARTS, INC., ANTHONY ZACCARO, READ, INC., ARTHUR WISSING, BERKELEY PLAZA, OCEAN COUNTY AUTO WREAKERS, INC., OCEAN COUNTY AUTO PARTS, TRACY'S FOREIGN & DOMESTIC REPAIR, TEL-PARTS, INC., ABC PROPERTY MANAGEMENT, NELS-HART OF BERKELEY INC., D/B/A FRIENDLY'S BAR & GRILL, HARTRANFT, II, NELSON R. HARTFRANFT, SR., TOWNSHIP OF BERKELEY, COUNTY OF OCEAN, DEFENDANTS, AND STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3161-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 6, 2006

Before Judges C.S. Fisher and Messano.

On November 18, 2000, plaintiff, Jennifer Rose (Rose), sustained serious injuries when struck by an automobile driven by defendant, Gregory A. Conde, Jr. (Conde). While driving south on Route 9 in Bayville, Conde fell asleep at the wheel, swerved across the northbound lane and shoulder, and into the parking lot of a strip mall where plaintiff had parked her car.*fn1 Rose was standing outside her vehicle retrieving items from its passenger side and was pinned between her car and Conde's.

Plaintiff's car was parked in a portion of the parking lot adjacent to the northbound shoulder of Route 9. The owner of the strip mall and parking lot, defendant Arthur Wissing (Wissing), had constructed and modified the lot over the years and knew this portion of the lot encroached into the Route 9 right-of-way owned by the State of New Jersey (the State). He had never sought, and the State had never given, permission to allow the encroachment which violated various regulatory provisions. See, e.g. N.J.A.C. 16:41.1 (a permit is required for any activity within the State's right-of-way).

Plaintiff brought this action against Conde, Wissing, the State and numerous other parties. As the litigation progressed, all defendants except Wissing and the State were dismissed from the action or had settled with plaintiff. On June 10, 2004, the State moved for summary judgment on three independent grounds. First, it argued it was entitled to the immunity provided by N.J.S.A. 59:2-4 as to plaintiff's allegation that it had failed to enforce the regulatory provisions against Wissing. Second, the State argued that it was entitled to plan and design immunity under N.J.S.A. 59:4-6 because both the original construction of Route 9 in 1924 and its re-surfacing in 1998 conformed to the State's plans and specifications. Lastly, the State argued that plaintiff failed to establish liability for a dangerous condition on public property. N.J.S.A. 59:4-2. In an oral opinion, later supplemented by a written memorandum, the motion judge denied the motion and on August 6 entered an order to that effect.

On April 15, 2005, the State filed a motion for reconsideration of the judge's prior order denying summary judgment. After rendering an oral opinion on the motion, the judge entered an order as follows:

[T]he defendant State['s] . . . Motion for Reconsideration . . . is hereby granted in part, denied in part.

It is further ordered that that the order entered on August 6, 2004 . . . is hereby modified in that the State is entitled to Immunity for failure to enforce a Law as to defendant Wissing.

It is further ordered that Summary Judgment in favor of the State of New Jersey . . . be hereby denied . . . but the court will entertain a motion on the specific issue of palpable unreasonable action of the state.

Wissing moved for reconsideration of this order and the State cross-moved for summary judgment arguing that plaintiff had failed to demonstrate its actions or omissions were palpably unreasonable. See N.J.S.A. 59:4-2 (public entity not liable for dangerous condition "if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable"). On September 9, 2005, the motion judge denied Wissing's motion and granted the State's motion for summary judgment. Plaintiff proceeded to trial solely against Wissing and ultimately settled the case during trial.*fn2

Plaintiff now appeals the trial court's grant of summary judgment in favor of the State.*fn3 After carefully considering the arguments in light of the record and applicable legal standards, we affirm.

In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div. 2006). We decide first whether there was a genuine issue of material fact; if not, we then decide whether the motion court's application of the law was correct. Id. at 230-31. We apply the ...


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