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Kats v. Township of Wayne

February 2, 2009

YELENA KATS AND KONSTANTIN KATS, HER HUSBAND, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
TOWNSHIP OF WAYNE, DEFENDANT-RESPONDENT/ CROSS-APPELLANT, AND BOROUGH OF POMPTON LAKES AND COUNTY OF PASSAIC, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1495-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 6, 2009

Before Judges Wefing, Parker and Yannotti.

Plaintiffs Yelena Kats (Yelena) and Konstantin Kats (Konstantin) appeal from orders entered by the trial court on September 25, 2007, granting summary judgment in favor of defendants Township of Wayne (Township), Borough of Pompton Lakes (Borough), and County of Passaic (County). The Township cross-appeals from the provision of the September 25, 2007 order that denied its motion for the imposition of counsel fees and costs pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8. For the reasons that follow, we affirm.

I.

We briefly summarize the relevant facts, which are drawn from the record presented to the trial court. At approximately 5:19 a.m. on April 8, 2003, Eleuterio Bonilla (Bonilla) was traveling northbound on Hamburg Turnpike in Passaic County. Bonilla lost control of his vehicle as he was crossing the Norton House Bridge, which runs over the Ramapo River and connects the Township and the Borough. Bonilla's car struck a sign and utility pole in front of George's Market on the Pompton Lakes side of the bridge. It is undisputed that the County owns the bridge where the accident occurred.

Officers Frank Jaconetta (Jaconetta) and Jamil Aburomi (Aburomi) of the Borough's police force responded to the scene. Jaconetta arrived first and spoke with Bonilla. Bonilla told the officer that he was attempting to make a turn when his vehicle slid on ice. The officers inspected the roadway for ice but apparently they did not check the northbound lanes of the bridge upon which Bonilla had been traveling. Jaconetta initially concluded that Bonilla lost control of his vehicle because he had been traveling too fast. Jaconetta and Bonilla went into George's Market and Aburomi returned to the Borough's police headquarters.

At about 5:32 a.m., Yelena was traveling northbound on Hamburg Turnpike in Passaic County. Yelena's vehicle slid on ice on the bridge and struck a utility pole. She sustained injuries to her face, pelvis, knee, leg and foot. Yelena's accident occurred near the spot where the Bonilla accident occurred.

Officer Jaconetta was inside the market at the time of Yelena's accident. Jaconetta contacted Officer Aburomi and asked him to return to the scene. Aburomi returned and found spots of black ice in the northbound lanes of the bridge. Aburomi informed Jaconetta and they closed the bridge.

On April 6, 2005, plaintiffs filed a complaint against the Township, Borough, and the County.*fn1 Plaintiffs alleged that Yelena lost control of her vehicle due to a dangerous condition that existed on Norton House Bridge, which caused the bridge "to be slippery and dangerous to vehicular traffic." Plaintiffs further alleged that the dangerous condition was due to the "negligence, recklessness, carelessness, inaction and failure to warn of the defendants[.]" They asserted that Yelena had sustained permanent injuries in the accident. Yelena's husband, Konstantin, also asserted a claim for the loss of his wife's services and consortium.

After the completion of discovery, defendants filed motions for summary judgment. They argued that they were entitled to immunity under the Tort Claims Act (the TCA or the Act), N.J.S.A. 59:1-1 to 12-3, specifically N.J.S.A. 59:4-7, the provision of the TCA that confers immunity for injuries that result solely from the effect that weather conditions have upon the use of public streets and highways. In its motion, the Township also sought the imposition of counsel fees and costs under Rule 1:4-8 and N.J.S.A. 2A:15-59.1. The Township argued that plaintiffs did not have a reasonable factual basis for any claim against the Township.

Plaintiffs opposed the motions, arguing that weather immunity did not apply because the icy condition of the bridge was not the sole cause of Yelena's accident. Plaintiffs also argued that the Township's motion for counsel fees and costs should be denied because they had a reasonable basis for pursuing their claims against the Township.

The trial court heard the motions on September 25, 2007 and placed its decision on the record. The court found that defendants were entitled to immunity under N.J.S.A. 59:4-7 because "[t]he accident was caused by the weather." The court also declined to award the Township counsel fees and costs pursuant to N.J.S.A. 2A:15-59.1 and Rule ...


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