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Asper v. State

September 3, 2009

FRANK ASPER, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5416-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 23, 2008

Before Judges Skillman, Graves and Grall.

This case involves a one-car accident that occurred while plaintiff Frank Asper was traveling northbound on Interstate 295 (I-295) in the area of Milepost 31.8, in Cherry Hill Township. It was raining at the time of the accident, and plaintiff's vehicle, a 2002 Honda, "collided with the median barrier" after it "began to hydroplane." Plaintiff sued the State of New Jersey, Department of Transportation (DOT), claiming that the highway had not been properly maintained and that the accumulation of rainwater on the roadway surface, which was "uneven and significantly rutted," caused the accident. Plaintiff also alleged that the State's failure to provide emergency warning signals at the site of the accident, such as a "slippery when wet" sign, contributed to the happening of the accident.

Plaintiff appeals from an order entered on June 8, 2007, granting the DOT's motion for summary judgment. The trial court reasoned that "the reconstruction and rehabilitation of the roadway, as well as the placement of warning signs are matters that require Governmental discretion and decision making which are subject to the immunity under the Tort Claims Act."

On appeal, plaintiff presents the following arguments:

POINT I

THE TRIAL JUDGE'S CONSIDERATION OF THE CERTIFICATION OF ROBERT SAUBER PRODUCED IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT CONSTITUTES REVERSIBLE ERROR AND A MANIFEST INJUSTICE.

POINT II

THE TRIAL COURT'S FINDING THAT DEFENDANT IS IMMUNE FROM LIABILITY FOR FAILING TO REMEDY THE DANGEROUS CONDITION OF THE HIGHWAY CONSTITUTES REVERSIBLE ERROR AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT REGARDING DEFENDANT'S IMMUNITY DEFENSE.

A. PUBLIC ENTITY LIABILITY.

B. IMMUNITY.

POINT ...


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