On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-1300-05, L-2222-05; Hudson County Docket No. L-664-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Ashrafi.
Thomas Perina appeals from judgments of the trial court dismissing on summary judgment his claims against the New Jersey Highway Authority and three contractors and denying a new trial against remaining defendants. Perina was both plaintiff and defendant in these consolidated cases arising out of a motor vehicle accident. The jury found Perina solely liable for the accident that injured him and his passenger. We affirm.
The accident occurred on October 23, 2004, after 11:00 p.m., on the northbound Garden State Parkway just before the roadway passes over the Driscoll Bridge in Sayreville. The New Jersey Highway Authority had recently removed northbound toll collection booths located about 1.1 miles south of the bridge. Defendant contractors were awarded public contracts to remove the toll plaza and reconfigure the roadway.*fn1 At that location, seven northbound lanes merged from the express and local lanes into a single roadway of six lanes going over the bridge. When the toll plaza was present, traffic slowed to pay tolls before the lane reduction. After the reconstruction, there was no mechanism to reduce speed as traffic merged and entered the bridge.
Perina alleged that he was driving in the far right lane with Maria Diaz riding as his passenger. He claimed that his lane ended suddenly without adequate warning signs, and he was forced to move to the left. As he did so, his car was struck in the rear by a car owned by defendant Danilo Catbagan and driven by defendant Allen Catbagan. The collision caused Perina's car to spin around and strike the highway divider on the bridge. Perina and Diaz alleged injuries caused by the negligent driving of Catbagan and the negligence of the State defendants in creating a dangerous condition of the roadway. In her separate complaint, Diaz also named Perina as a defendant and alleged that his negligent driving was also a cause of the accident.*fn2
After discovery was completed, the State defendants filed motions for summary judgment claiming immunity under New Jersey's Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Specifically, they claimed they were immune under N.J.S.A. 59:4-6 for plan and design of the highway improvements and under N.J.S.A. 59:4-5 for alleged failure to post warning signs.
Perina responded that the State defendants were not entitled to immunity because they had failed to place warning signs in accordance with the approved plan for reconfiguration of the roadway. In addition to an expert engineering report, Perina proffered photographs taken nine days after the accident to show that the two warning signs intended by the approved plan were not in place at the locations designated. The court granted summary judgment to the State defendants both on the ground that the photographs did not prove the warning signs were not present nine days earlier when the accident occurred and also on the ground that Tort Claims Act immunities applied.
The case against the Catbagans went to trial before a jury and a different judge, but only on the issue of comparative negligence and responsibility for the accident as between Perina and Catbagan. Diaz agreed to be bound by the jury's verdict without participating as a party at the trial. Before trial began, the court granted Catbagan's motion in limine to bar testimony by Perina's accident reconstruction expert, James Eastmond. The only witnesses at trial were Perina, Diaz, and Allen Catbagan.
Perina testified that he only saw a flashing arrow pointing to the left but did not see any signs or lane markings warning that the far right lane was ending, and he was forced to move his car suddenly to the left. Diaz also testified that she did not see any warning signs or lane markings on the highway. Both testified they did not see Catbagan's car before the collision. Both also testified they heard and felt two impacts to the rear of Perina's car before it was spun around and struck the divider.
Catbagan testified that he was traveling at about sixty-five miles-per-hour in the third lane from the right as he approached the Driscoll Bridge. He saw Perina's car ahead and one lane to his right. He believed it was moving faster than his car. He intended to change lanes to the left to move further away from traffic and engage his cruise control. He briefly looked to his left to check the blind spot to his side. As he turned his head back to the front, Perina's car was suddenly coming into his lane and he could not avoid hitting it in the left rear side with the right front of his car. He testified there was only one impact, and he denied striking the rear of Perina's car.
The jury was asked to answer five special interrogatories. The first four questions asked whether Perina and Catbagan were each negligent and whether their negligence was a proximate cause of the accident. The fifth question, to be answered only if all four prior answers were "yes," asked the jury to designate by percentages the responsibility of Perina and Catbagan for the accident.
After deliberations, the jury returned with a verdict finding both Perina and Catbagan negligent but answering "no" to whether Catbagan's negligence was a proximate cause of the accident. Despite the "no" answer, the jury answered the fifth question, finding Perina 80% and Catbagan 20% responsible for the accident.
The court did not accept the verdict. It informed the jury that its answers were inconsistent and did not comply with the court's instructions. It sent the jury back to resume deliberations and to resolve the inconsistency. When the jury returned with a revised verdict sheet, it had changed its answers and found that Catbagan was not negligent.
As a result of the jury's verdict, Perina had no cause of action against Catbagan for his own injuries, and Diaz could recover for her injuries only from Perina. Subsequently, Diaz settled her claims against Perina. Perina moved for a new trial, which the trial judge denied, concluding that the jury's verdict was not inconsistent.
Perina now appeals from the orders dated October 19, 2007, granting summary judgment to the State defendants and the order dated August 4, 2008, denying a new trial.
In reviewing a grant of summary judgment, an appellate court applies the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), cert. denied, 154 N.J. 608 (1998). The court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The court's function is not to weigh the evidence, but rather to determine whether there is a genuine issue requiring trial. Ibid.
With respect to the State defendants, Perina argues that genuine issues of fact exist regarding the presence and location of warning signs and whether, as a result, defendants had created a dangerous condition of the roadway subjecting them to liability under N.J.S.A. 59:4-2. Defendants argue they were entitled to immunity under the plan and design, N.J.S.A. 59:4-6, and the traffic sign, N.J.S.A. 59:4-5, provisions of the Tort Claims Act. We agree with defendants.
The Tort Claims Act provides general immunity for all governmental bodies, except where the Legislature has provided for liability. See N.J.S.A. 59:1-2 and 2-1; Bell v. Bell, 83 N.J. 417, 423 (1980); Malloy v. State, 76 N.J. 515, 519 (1978). The immunities provided under the Tort Claims Act, if applicable, prevail over any provision under which ...