January 24, 2007
JENNIFER ROSE; FRANK ROSE, HER HUSBAND, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR CARLY AND FRANK ROSE, MINORS, PLAINTIFFS-APPELLANTS,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
We must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.
We apply these standards to the evidence in the record. Plaintiff established that between 1991 and 1995, Wissing had expanded the parking lot for patrons and employees of his strip mall. This expansion abutted Route 9 north and Wissing created parking spaces facing the roadway in this area of expansion. The parking lot at this point encroached upon the State's right-of-way and both Wissing and the State were aware of the encroachment. Plaintiff also established that Wissing never obtained proper regulatory approval for the parking lot's encroachment and the State never attempted any enforcement actions based upon the violations.
Route 9 was constructed in 1924 in conformity with approved plans which provided for: a right-of-way that was sixty feet wide with travel lanes in each direction that were ten feet wide; a paved shoulder that was ten feet wide on each side of the travel lanes; and, a border area that was thirteen feet wide on the side of each shoulder. A double yellow line separated the north and southbound travel lanes, and a solid white line separated each travel lane from the shoulder.
In 1998, the State's Department of Transportation (DOT) prepared detailed project plans pursuant to Contract No. 225 ("A Substantial Resurfacing Plan") and inspected each of the properties fronting on Route 9 within the project area. The plans reflected existing driveways, curbs, sidewalks and other structures including those that encroached in the State's right-of-way. As a result, the State was aware of Wissing's property's encroachment. In addition to the inspection of property that took place during the 1998 resurfacing project, DOT maintained a small unit that, among other assignments, inspected the state's highways for encroachments. In the Central Region, which is comprised of seven counties and included Bayville, four individuals were assigned to the unit. Because of this limitation on its resources, DOT addressed only those encroachments that were obvious and which, in the opinion of DOT, created a clear safety hazard.
The plans and specifications for the 1998 resurfacing project, like the original road construction project in 1924, required the creation of a paved shoulder delineated by a solid white line along each travel lane. Although the 1998 plans called for the construction of handicap ramp cuts that would extend into existing sidewalks and adjacent four-inch curbing, after a field inspection, Charles Bassano, DOT's resident engineer for the project, realized that many of the border areas in the State's right-of-way along the six-mile stretch of road did not contain sidewalks. He decided that because no sidewalks existed, no handicapped ramps and no concrete curbs would be needed. The "as built" plans for the re-surfacing show the deletion of the handicapped ramps, the curbs and adjacent sidewalks at the intersection closest to the site of this accident.
Plaintiff's experts noted that some stretches of Route 9 immediately adjacent to the shopping center had curbing and that such curbing could have deflected the Conde vehicle by altering its path of travel. They opined that the installation of the four-inch curbing called for in the original repaving plans would have performed such a function. In their opinion, a dangerous condition was created by the encroaching parking lot and the lack of curbing or other protective barriers at the site.
Though the motion judge did not expressly rule on the issue, we nonetheless address whether the State was entitled to "plan and design immunity" pursuant to N.J.S.A. 59:4-6 which provides:
Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, either in its original construction or any improvement thereto, where such plan or design has been approved in advance of the construction or improvement by the Legislature or the governing body of a public entity or some other body or public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.
"Application of plan-or-design immunity turns on whether the public entity has approved the feature in question so as to immunize it from challenge." Manna v. State, 129 N.J. 341, 353 (1992). Essentially, the defect that causes the injury must be in the plans before immunity is conferred. Thompson v. Newark Hous. Auth., 108 N.J. 525, 535 (1987). However, the public entity need not show that a particular feature of the plans "was specifically considered and rejected." Thompson, supra, 108 N.J. at 537; see Manna, supra, 129 N.J. at 358 ("[I]mmunity for an original design does not fail because alternative options regarding the feature of concern . . . were not considered in the original plans."). "Rather, a public entity must offer evidence that it had considered the general condition about which a plaintiff complains in formulating the original plan or design." Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 109 (App. Div.), certif. denied, 156 N.J. 407 (1998). Plan and design immunity is an affirmative defense and the public entity must carry its burden to plead and prove facts sufficient to establish its entitlement to the provision's protections. Id. at 108.
Here, to the extent plaintiff's theory of liability rests upon DOT's failure to construct a curb or install other protective barriers at the intersection's interface with the parking lot, it clearly must fail in light of N.J.S.A. 59:4-6. Bassano's undisputed testimony demonstrated that DOT decided to eliminate the construction of handicap ramps and curbing at points along the length of the repaving project wherever a sidewalk was lacking, resulting in the modification of the plans at several dozen intersections along Route 9. This was consistent with DOT's policy to replace handicapped access ramps and curbing when a sidewalk existed, but not to construct them in its absence. This is precisely the kind of decision-making and approval made by a "public employee exercising discretionary authority to give such approval" that is immune from attack. N.J.S.A. 59:4-6.
With respect to plaintiff's theory that plan and design immunity cannot immunize the State from liability based upon the encroachment of the right-of-way, we note that the 1998 plans maintained the existing road width, shoulder width, and demarcation of shoulder areas contained in the prior plans. These designations were consistent with DOT's Design Manual that noted the importance of providing shoulders along the roadway to address issues of driver, pedestrian, and bicyclist safety. Although the encroachment of the parking lot was known to the State, it nevertheless concluded that repaving the road in a manner consistent with its approved plans adequately addressed these safety issues. As such, the plan and design immunity applies because the plans "sufficiently embrace[d] the condition that is the subject matter of plaintiff's claim," Thompson, supra, 108 N.J. 537, that is, the width of the roadway and the alleged dangerous condition caused by the parking lot's encroachment.
Since the State was entitled to plan and design immunity, and since once that immunity attached it trumped all issues of liability for the dangerous condition, see Weiss v. N.J. Transit, 128 N.J. 376, 381 (1992) (liability is negated if the public entity possesses corresponding immunity); see also Manna, supra, 129 N.J. at 355 (once immunity attaches, it is not lost even if later events demonstrate the design resulted in the creation of a dangerous condition), the motion for summary judgment was appropriately granted and the issue of whether the State's conduct was "palpably unreasonable" under N.J.S.A. 59:4-2 need not be addressed. We add only these brief comments.
Though not explicitly defined by statute, our Supreme Court has stated that palpably unreasonable conduct is "behavior that is patently unacceptable under any circumstance and that it must be manifest and obvious that no prudent person would approve of the public entity's course of action or inaction." Kolitch v. Lindedahl, 100 N.J. 485 (1985). "Part of the equation in determining whether a public entity acted in a palpably unreasonable manner involves the exercise of its 'discretion in determining what action should or should not have been taken.'" Muhammad v. N.J. Transit, 176 N.J. 185, 196 (2003) (quoting Brown v. Brown, 86 N.J. 565, 575 (1981)).
It was undisputed that the State owns more than 4,500 miles of road shoulders along more than 8,000 miles of State highways. Encroachments into adjacent rights-of-way are prevalent throughout the State. Within one mile of the accident site alone there are numerous private parcels that abut the edge of the shoulder and encroach the right-of-way. Given the vast number of encroachments, DOT addressed only those that created an obvious safety hazard by blocking visual lines of sight or physically intruded into the shoulder. Plaintiff failed to demonstrate any prior complaints about the parking lot or any prior accidents in the immediate area that implicated the encroachment as a causative factor. See Carroll v. N.J. Transit, 366 N.J. Super. 380, 390-91 (App. Div. 2004) (lack of prior incidents or complaints can be a factor demonstrating public entity's conduct was not palpably unreasonable).
The trial judge concluded that, "given all the commercial properties and encroachments into the right of way along Route 9, it is both economically and practically unreasonable to expect DOT to remove every encroachment." We concur with the trial judge's assessment of the proofs and conclude that the State's conduct was not palpably unreasonable.