On appeal from Superior Court of New Jersey, Law Division, Civil Part, Sussex County, Docket No. L-268-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Waugh and Newman.
Plaintiff Kathleen Fitzgerald appeals the dismissal by summary judgment of her personal injury action against the County of Sussex (County).*fn1 We reverse and remand for further proceedings.
On the morning of May 30, 2004, Fitzgerald was riding her Harley Davidson motorcycle northbound on Maxim Drive in the Borough of Hopatcong, Sussex County. After Fitzgerald entered a curve in the road, she collided with the outside guard rail. She "was ejected off the seat and over the handlebars," sustaining injuries.
Maxim Drive, also known as County Road 607, was built by the County in 1929. At the time of the accident, it had substantially the same configuration as when originally constructed. The curve at issue in this case is a 135-degree curve. It is marked with two signs, one on each side of the road, indicating a left turn at 90 degrees.*fn2 The sign posts also contain 10 miles-per-hour speed signs.
For the purposes of this appeal, the gravamen of Fitzgerald's May 2005 complaint against the County is that the signage installed by the County, specifically the two 90-degree left turn signs, enhanced an already dangerous condition because they were misleading with respect to the nature of the turn involved.*fn3 In support of her position, Fitzgerald points to accident reports concerning the same location for the period between 1999 and 2004, which reflects twenty-two incidents within the five-year time frame, and the report of an expert witness.
After discovery was completed, the County filed a motion for summary judgment. The motion judge, in an oral opinion, determined that the County was entitled to immunity pursuant to several provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. He relied upon the following relevant findings of fact, based upon his review of the motion papers:
This road Maxim Drive, at the place where the accident occurred is, I think, properly described as a very sharp, almost a hairpin type turn. I think it was agreed in our discussion this morning that as you're proceeding northbound on Maxim Drive, you come to the point in question and the roadway is a 135 degree turn to the left. In other words, as you come up into the so-called hairpin turn, and as you approach it and enter it, you will need to first go to the left and then continue around to the point to where you've made a turn of greater than 90 degrees. In other words, not just your standard left-hand turn but rather a turn ultimately, through the course of the road, of 135 degrees.
It is not a complete U-turn type situation. In other words, a U-turn would be 180 and would be described as a road where you come into the turn and you continue around and when you're done, you're going in exactly the opposite direction from which you started. Here, it is not a 180 degree hairpin turn, but it is an abrupt, and I think properly described as a hairpin type turn, and it goes around in an arc and degree of 135 degrees.
At issue in this case is the, in particular, the signage that is attendant to the road. And let me place on the record what the relevant directional and speed limit signs were at the time of the accident.
It appears undisputed from the record that as the road approaches the curve, as the plaintiff did in this case coming northbound, you see two important signs to this litigation on each side of the road, and they are a short distance from where the road turns sharply. But what they indicate, and there's one on each side of the road, in other words there's one on the right-hand side outside of the right-hand side northbound lane of travel. There is also one facing the northbound driver on the other side of the road. So there's, in effect, sort of a gateway established by these signs. And what the signs are are signs that indicate that the speed limit is 10 miles per hour and that the road is turning to the left.
The left-hand sign that I'm referring to basically is an arrow showing a 90 degree perpendicular turn. And right below each of those signs, one on each side of the roadway, is on the same pole, an indication that the speed limit is 10 miles per hour.
As the County pointed out in its argument this morning in addition to that signage, through the course of the turn, there are signs called chevrons, basically sort of arrows without the straight part of the arrow but chevrons that are indicating that the traveler on the road should turn to the left. We see these pretty frequently on the roads and they're an indicator of where you're headed as you're traveling on the road. So that is the configuration of the road.
As far as the signage I'm referring to, it appears from the exhibits to the movant's motion here, that as I mentioned before, the road was initially built in 1929. It further indicates that back in 1965, Sussex County requested and the New Jersey Department of Transportation performed a traffic engineering assessment to establish speed limits for the roadway. This generated a report dated January 18th, 1965.
This report indicated a speed limit of 15 miles per hour for the curve of Maxim Drive and in fact the County passed a resolution approving this speed limit in 1966.
A second event in the history of the speed limit and signage at this portion of the road occurred in 1977. At that time, the Department of Transportation did a signage review on Maxim Drive and generated a report dated September 28th, 1977. This report recommended removal of the 15 miles per hour signs and replacement with 10 miles per hour signs, and this was done. So after 1977, the 15 miles per hour speed limit and signage was replaced with 10 miles an hour signage.
After setting out the parties' arguments, the motion judge reached the following conclusions of law:
I'm going to start with a portion of the analysis that, to me, jumps out fairly strongly and that is the question of whether there is a dangerous condition. And I think there is an element of immunity established by ...