On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1138-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
Plaintiffs Joseph and Kathleen Sansone appeal from the motion judge's grant of summary judgment dismissing their complaint against defendant City of Newark (Newark) as barred by the exclusivity provisions of the Workers' Compensation Act, N.J.S.A. 34:15-8 and because plaintiff failed to demonstrate that his injuries resulted from a dangerous condition on public property N.J.S.A. 59:4-2.*fn1 Newark cross-appeals from that portion of the same order that denied summary judgment on the alternative ground that the injuries suffered by plaintiff were insufficient to allow recovery under N.J.S.A. 59:9-2(d). After review of the motion record and applicable legal standards, we affirm those portions of the order under review that granted Newark summary judgment; as a result, we dismiss the cross-appeal as moot.
The litigation arose as a result of a motor vehicle accident that occurred in Newark during the early morning hours of May 10, 2002. Plaintiff, a trooper with the New Jersey State Police, was a passenger in an unmarked police vehicle that was being operated by defendant Newark Police Officer Horacio Lorenzo. At approximately 2:00 a.m., Lorenzo and plaintiff were responding to a call for backup assistance requested by Newark Police Department (NPD) units in connection with a bar fight. Plaintiff's vehicle was traveling westbound on 14th Avenue with its lights and sirens on when it was struck by a vehicle traveling northbound on the intersecting 11th Street.
The second vehicle was operated by defendant Terrance L. Jones and was owned by defendant Deshaunn L. Venable. It was alleged that Jones failed to obey a stop sign before entering the intersection; he was subsequently charged with driving while intoxicated and other motor vehicle violations. When the vehicles collided, both cars spun and slid diagonally across the intersection until plaintiff's vehicle's front passenger door impacted a telephone pole. Plaintiff sustained injuries as a result of the accident.*fn2
To this day, plaintiff has no memory of how the accident occurred; therefore, he relies upon the facts gathered during the subsequent investigation conducted by the police. This revealed that the intersection of 14th Avenue and 11th Street had been the location of another motor vehicle accident approximately two hours prior to plaintiff's accident. As part of its clean-up of the earlier accident, Newark had spread a large amount of sand throughout the intersection and this was still present at the time of plaintiff's collision. It is undisputed that no warning signs, cones, or other devices of any kind were posted to alert motorists to the presence of the sand on the road.
On the date of the accident, plaintiff was assigned to a special law enforcement task force, the Drug Interdiction and Gang Group (DIGG), a joint effort of the NPD and the State Police, which patrolled high-crime and narcotic-trafficking areas in Newark. The State Police assigned twenty-three of its employees to DIGG on a full-time basis and they worked uniformed, undercover, and investigative details alongside NPD officers. While participating in Operation DIGG, plaintiff was paid by the New Jersey State Police, and there is no evidence in the record that Newark reimbursed or provided any other remuneration to the State for plaintiff's participation.
Plaintiff was required to report to NPD headquarters and attend roll call prior to beginning work each day. A NPD lieutenant or sergeant ran the shift and devised the "game plan" for the officers, although on occasion a state police sergeant was also present as a supervisor. Although plaintiff was ultimately answerable to any State Police supervisor present, he acknowledged that he followed the orders of the NPD supervisors on a day-to-day basis.
Newark moved for summary judgment and argued three alternative grounds for relief. First, it contended that plaintiff's action was barred by the Workers' Compensation Act, specifically N.J.S.A. 34:15-8. In this regard, Newark asserted that plaintiff was a "special employee" of the City and therefore covered by the statute's prohibition of suits against one's employer. Second, Newark argued that plaintiff failed to prove a prima facie case that the intersection was a dangerous condition on public property pursuant to N.J.S.A. 59:4-2. Third, the city argued that plaintiff had not suffered injuries sufficient to meet the threshold requirements of N.J.S.A. 59:9-2(d).*fn3
We have not been supplied with a transcript from any oral argument that may have occurred or a transcript of the judge's reasons for entering the dispositional order that she did. However, as evidenced by the order of September 8, 2006, the judge found "a genuine issue of material fact [existed] as to whether sand in the street was a dangerous condition that was the proximate cause of [plaintiff's] accident." She denied the motion.
Newark moved for reconsideration arguing that the judge had failed to consider all three grounds for summary judgment raised by the City. It also argued, based upon our then-recent unreported decision in Barnabei v. City of Ocean City, No.A-2425-05 (App. Div. October 16, 2006), that the judge had erred in determining a factual dispute existed regarding a dangerous condition on its property.
In her oral opinion of October 31, 2006, the judge granted Newark's motion for reconsideration. She found that plaintiff could not demonstrate the elements of a dangerous condition pursuant to N.J.S.A. 59:4-2 as a matter of law and that plaintiff was barred from recovery under N.J.S.A. 34:15-8. However, the judge also concluded that plaintiff had demonstrated injuries sufficient to vault the threshold set forth in N.J.S.A. 59:9-2(d). On November ...