On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9510-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Baxter.
Plaintiff Gilbert Hernandez appeals from the June 7, 2007 order granting summary judgment dismissing his complaint against defendants Woodbridge Township (the Township) and MiddleseX County (the County) (collectively defendants). The motion judge concluded that the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (Act), barred plaintiff's claims against defendants. We agree and affirm.
Plaintiff sustained injuries as a result of a motor vehicle accident occurring at the intersection of Smith Street and Highland Avenue in Woodbridge. Plaintiff commenced a civil action in which he named, among others, the Township and the County on the basis that these two defendants "owned, maintained, supervised, controlled, operated, and [were] otherwise responsible for in some capacity, either in whole or in part, the roadways and intersection in question." Following the completion of discovery, defendants filed motions for summary judgment. Prior to the return date of oral argument on the motions, plaintiff filed a motion on short notice to reopen discovery and serve an expert report. That motion was granted.
Plaintiff's expert, Robert T. Hintersteiner, a professional engineer, authored a ten-page report in which he opined that the Township's actions resulted in this accident. He explained that the Township, knowing of the hazardous condition that existed, should have "installed and maintained advance warning signs on Smith Street prior to Highland Avenue to give adequate warning to motorists [that] were approaching a blind intersection." In addition, Hintersteiner opined:
The Township of Woodbridge, as a public entity, had a duty to provide emergency signals, signs, markings or other devices if such devices were necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care. The Township of Woodbridge failed in this duty by allowing people driving on Smith Street to drive into a palpably unreasonable trap situation with an unusual risk of serious injury due to, among other issues addressed elsewhere in this report, the speed of the vehicles driving on Smith Street at the location of the accident and the visibility for the vehicles traveling in the direction Mr. Hernandez was driving on the day of the accident and for the vehicles driving in the direction of the vehicle driving on Highland Avenue at this intersection.
Oral argument on defendants' summary judgment motion took place on May 25, 2007. Defendants argued that they were entitled to summary judgment based upon the plan and design immunity provisions under Chapter 4 of the Act, Conditions of Public Property, Liability of the Public Entity and, more specifically, Section 59:4-6. Additionally, defendants argued that the Act's discretionary provisions contained in Section 59:2-3 and the immunity provisions under Section 59:4-5 for failure to provide ordinary traffic signals, provided additional grounds for relief.
In opposition to the motion, plaintiff urged that there were genuinely disputed factual issues as to whether the plan and design immunity provisions applied. Relying upon the Supreme Court's decision in Costa v. Josey, 83 N.J. 49, 59 (1980), plaintiff's counsel argued that defendants were required to show that discretion was exercised at the planning level by an official who[,] faced with alternative approaches, weighed the competing policy considerations and made a conscious choice.
That's what they have to show. They have to show that there's a balancing of the risks, the different risks and advantages of the different approache[s] to the design of this area . . . of road.
Plaintiff also highlighted the deposition testimony of a number of defendants' representatives; in particular, Richard Wallner, Assistant County Engineer, who was unable to testify with any certainty when the intersection of Smith Street and Highland Avenue was first designed, nor did he know whether the roadway had been redesigned. Plaintiff's counsel also pointed out that in response to his opposition, he received a certification from another County engineer certifying that there are "600 design plans for this[,]" which plaintiff's counsel represented he had not seen or been provided. Finally, plaintiff's counsel argued that the roadway had been redesigned in 2000, resulting in the diversion of all of the traffic from what was formerly two intersections to one intersection on Highland Avenue, causing an increase in traffic.
In response to these arguments, counsel for the County represented to the court that the design plans plaintiff's counsel advised he had not seen were for the entire Route 440 connector and that for purposes of the motion, what was produced was the "first sheet to show the intersection and the continuing one, because the continuing one doesn't show the intersection, but the intersection is right near the border." Defendants also produced documentation evidencing approval of the entire Route 440 construction project that included Smith Street. With respect to the contention that the roadway had been redesigned in 2000, the County attorney argued that this action represented an improvement to the property, not a redesign of a plan, and the plan and design immunity applied to improvements as well.
In a subsequent written decision, the court found that defendants were entitled to summary judgment based upon the plan and design immunity provisions under the Act and there was no evidence "that either defendant affirmatively altered either Highland Avenue or Smith Street to create a dangerous condition." Plaintiff moved for reconsideration. On the return date of the motion, plaintiff's counsel represented to the court that all of its arguments in support of reconsideration were directed to the County's liability and that plaintiff was "ask[ing] for reconsideration of the . . . judgment granted to the County." The Township nonetheless ...