On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-561-05.
The opinion of the court was delivered by: Lihotz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Lihotz and Simonelli*fn1.
By our leave granted, defendant Hamilton Township (Township) appeals and plaintiff Robin Dickson cross-appeals from the denial of their respective requests for summary judgment in this negligence action. The Township asserts it is immune from suit and plaintiff argues the Township's liability is bottomed on the negligence of its employee. We are asked to examine provisions of the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-2 to 12-3. Specifically, we address the scope and applicability of weather immunity, pursuant to N.J.S.A. 59:4-7.
Plaintiff, while operating a motor vehicle eastbound on Route 322, hit a patch of black ice. Her vehicle left the roadway, slid fifty feet, and hit a tree. As a result of the impact, plaintiff sustained serious injuries. Plaintiff's complaint against the State of New Jersey (State), Atlantic County, and the Township alleged a dangerous roadway condition caused or contributed to her accident.
Route 322, also known in this area as the Black Horse Pike, is owned, controlled, and maintained by the State. The Township's police department exercises law enforcement responsibilities over that portion of Route 322 where the accident occurred. Because it lacked a connection to the roadway, Atlantic County was dismissed from the litigation.
The State, the Township, and plaintiff requested summary judgment. The motion judge granted the State's motion, citing immunity pursuant to N.J.S.A. 59:4-7, and denied plaintiff's motion concluding sufficient disputed material facts concerning liability precluded summary judgment. The Township's motion was also denied as the motion judge determined the weather alone was not the "true culprit" contributing to the accident. The judge perceived a disputed factual issue existed: whether the Township's actions were a reasonable response to the weather situation presented or whether the Township's failure to repeatedly contact the State and to warn drivers of the hazardous road conditions on Route 322 were "palpably unreasonable" and contributed to the cause of the accident.
Our review examines the propriety of the trial judge's ruling on the immunity issue. We determine that the Township is immune from suit pursuant to N.J.S.A. 59:4-7. We reverse and remand to the Law Division for entry of judgment for the Township.
We accept as true plaintiff's version of the facts gleaned from the pleadings, affidavits, and depositions, giving her the benefit of all inferences favorable to her claim. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). Plaintiff's accident occurred at 5:22 a.m. on February 2, 2003, near mile post 48 on Route 322. Prior to plaintiff's accident, five single motor vehicle mishaps occurred on Route 322, between mile posts 41 and 52. Each accident report notes that ice on the roadway was a contributory cause of the accident. The Township police officers responded to and reported these accidents and submitted accident information to the Township's police dispatcher. The police did not close the roadway or place warning markers to warn motorists of the icy conditions.
Steven Mitchell, the Hamilton Police Department dispatcher who worked that morning, acknowledged he was to notify the State when he learned of conditions on a State roadway that warranted remediation. Mitchell had no specific recollection of the day's events.
The Township police radio recordings from the morning hours prior to plaintiff's accident contained no calls to the State reporting accidents on Route 322. However, the Township's police telephone records show communication to the State regarding road conditions on Route 322 at 2:31 a.m. Additionally, the records contain a second entry at 3:10 a.m. stating an unidentified caller reported "conditions on the Pike" and Mitchell confirmed the State "had been called."
According to the State's records, it opened the snow room at 2:20 a.m. and received a telephone call from the Township by 2:30 a.m. The log notation states: "icing on Rt. 322 at MP 39-40." Further, Charles W. Kingsland, the executive assistant of South Region Operations in the State Department of Transportation (DOT), testified a work crew was dispatched after receiving the initial call from the Township. Kingsland believed the crew was assigned to address roadway conditions below mile post 48. He acknowledged the DOT responded to specific calls and no storm emergency was declared.
Daniel Voltaggio, the State crew chief responsible for mile posts 41 to 50 of Route 322 did not recall being assigned by Kingsland to address an icy roadway on February 2, 2003. However, Voltaggio did learn of ice on the roadway when a crew member, who was driving in the area, called him.
At 3:30 a.m., Patrol Sergeant Robert B. Richards, who supervised the day-to-day operations of the Hamilton Township Police Department patrol squad, investigated an accident occurring at mile post 48.8 on Route 322. He recalled seeing State work trucks salting the roadway at the scene of this accident. Richards explained that although the dispatcher "should call" the DOT following every accident, he would not because repeated calls relaying the same information would result in "the same response." ...