August 13, 2010
SUNDARRAJ CHINNARAJ, AN INCAPACITATED INDIVIDUAL, BY AND THROUGH MALINI SUNDARRAJ, GUARDIAN OVER PERSON AND PROPERTY; AND MALINI SUNDARRAJ, HIS SPOUSE, PER QUOD, PLAINTIFFS-APPELLANTS,
NABIL HUSSEIN CHEHAB, AN INDIVIDUAL, COUNTY OF MIDDLESEX, A PUBLIC ENTITY, STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, A PUBLIC ENTITY, NEW JERSEY TRANSIT CORPORATION, WILNER LIVERY SERVICE, A BUSINESS ENTITY, DAVID J. WILNER, AN INDIVIDUAL, JAI HSIV SHAMBHU, LLC, A LIMITED LIABILITY COMPANY, RITU BATRA, AN INDIVIDUAL, AND TRILOKI BATRA, AN INDIVIDUAL, DEFENDANTS-RESPONDENTS, AND ASRA MALIKZAY, AN INDIVIDUAL, RAFODIAN MALIKZAY, AN INDIVIDUAL, NEPTUNE MALIKZAY, AN INDIVIDUAL, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8708-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted:*fn1 February 11, 2010
Before Judges Cuff, Payne and C.L. Miniman.
Plaintiff Sundarraj Chinnaraj was struck by a car and suffered catastrophic injuries. We granted leave to appeal four summary judgment orders that left the driver of the car who struck plaintiff as the only remaining defendant. We affirm the summary judgments entered in favor of New Jersey Transit (NJT) and the County of Middlesex (County), but reverse the summary judgments entered in favor of Wilner Livery Service and David J. Wilner (the Wilner defendants), Jai Hsiv Shambhu, LLC (Shambhu), and Ritu Batra and Triloki Batra (the Batra defendants).
Oak Tree Road in Edison is a five-lane road. Two lanes head east, two lanes head west, and a turning lane forms the fifth lane. On November 15, 2005, at approximately 9:15 p.m., plaintiff attempted to cross Oak Tree Road from the south side to the north side of the road. Defendant Nabil Hussein Chehab was driving west on Oak Tree Road in the far right lane. Plaintiff had crossed four of the five lanes. When he walked into the far right lane, the fifth lane, Chehab struck plaintiff.
The accident occurred where Minebrook Road intersects Oak Tree Road from the south, and where a one-way exit road from a shopping plaza intersects Oak Tree road from the north. The parties stipulated for motion purposes that plaintiff crossed the road within the crosswalk.*fn2
Plaintiff contends that the accident occurred due to several dangerous conditions at that area of the road. He identifies the following dangerous conditions that contributed singly or in combination to the accident: (1) the absence of a marked pedestrian crosswalk; (2) the absence of a pedestrian crossing sign on the westbound side of Oak Tree Road; (3) the improper placement of an advance pedestrian crossing sign for westbound drivers; (4) the placement of a bus stop sign too close to the advance pedestrian crossing sign; and (5) placement of large commercial signs creating visual clutter. Consistent with these contentions, plaintiff named the County, NJT, New Jersey Department of Transportation (NJDOT), and the owners and occupiers of commercial property (the Wilner defendants, the Batra defendants and Shambhu) as defendants.*fn3
We granted leave to appeal summary judgment orders entered in favor of the County, NJT, NJDOT,*fn4 the Wilner defendants, the Batra defendants and Shambhu.
In this appeal, we review four orders granting summary judgment. In doing so, we must apply the standard articulated in Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995):
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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. [Id. at 540.]
Therefore, we must assume plaintiff's version of the facts is true and give plaintiff the benefit of all favorable inferences. Id. at 536. However, a court "may pick and choose inferences from the evidence to the extent that 'a miscarriage of justice under the law' is not created." Ibid. (quoting R. 4:49-1(a)). To prevail on a summary judgment motion, defendants must show that plaintiff's claim "was so deficient as to warrant dismissal of [the] action." Butkera v. Hudson River Sloop "Clearwater," Inc., 300 N.J. Super. 550, 557 (App. Div. 1997). We address the summary judgment orders entered in favor of the public entities first.
A. County of MiddleseX
In his complaint, plaintiff argued that defendant County was negligent in failing to properly maintain an advance pedestrian crossing sign on the westbound side of Oak Tree Road. Plaintiff asserted that the sign was tilted and obscured by a bus stop sign erected by defendant NJT. Moreover, plaintiff alleged that the County had not painted a pedestrian crosswalk on Oak Tree Road at the intersection of Oak Tree and Minebrook Roads. He also contended that the presence of the advance pedestrian warning sign led plaintiff to believe that it was safe to cross the roadway at the point he chose.
Plaintiff supported his contentions by photographs of the sign taken soon after the accident and the expert report of a professional engineer. The expert opined that roadway standards required placement of a pedestrian warning sign and a pedestrian crosswalk at the Oak Tree Road and Minebrook Road intersection. A pedestrian crosswalk is a white painted path across a roadway. He also stated that a driver utilizing low beams would have detected a pedestrian garbed in black against the white paint of the crosswalk. The expert also opined that a driver would have seen a similarly garbed pedestrian if he crossed close to but not within the crosswalk. The expert further noted that in 1991 the County issued a work order for installation of a pedestrian crosswalk at the site and an advance pedestrian warning sign; another record indicated that the County had completed the work. Notwithstanding the existence of documents attesting to the existence of the pedestrian signage and roadway markings, however, neither existed at the intersection on the evening of November 15, 2005.
In addition, plaintiff's expert discovered that a nearby business had filed a petition in 2000 seeking installation of a traffic light at the intersection. The expert also observed that the advance pedestrian warning sign installed 225 feet from the crosswalk was obscured or partially obscured by a bus stop sign installed by NJT.
The expert opined that the absence of the crosswalk contributed to the accident because defendant was denied an adequate opportunity to visually detect [plaintiff] in time to avoid the accident. The absence of the crosswalk resulted from the failure of the Middlesex County Engineering Department to either install or retain the crosswalk that was noted in the 4/26/91 sign installation order. Furthermore, the County failed to act on the 1999 petition that they received in 2000 advising of the pedestrian safety problem at Minebrook and Oak Tree to install (or reinstall) a crosswalk or any other pedestrian safety measure.
Indeed, the expert opined that the presence of a crosswalk at the intersection "would have been sufficient to prevent the subject accident."
Plaintiff's expert also explained that properly placed pedestrian warning signs are highly effective at night, and the advance pedestrian warning sign "is designed to alert drivers in advance of locations where unexpected entries into the roadway by pedestrians may occur." The expert emphasized that the advance pedestrian warning sign installed by the County did not conform to the 2000 standards requiring a permanent sign post to ensure the device remains visible. He noted that in November 2005, the advance warning sign was improperly mounted and partially obscured. He opined that the County had a continuing obligation to ensure that all traffic safety devices are functional, and it should have adopted a device maintenance, inventory and inspection program. The failure of the County to do so denied defendant driver of an advance warning of the pedestrian and contributed to the occurrence of the accident.
In his oral decision on the County's motion for summary judgment, the motion judge held that the County was immune from liability pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, specifically pursuant to N.J.S.A. 59:2-3, the discretionary function exception. In so holding, the judge stated, "whether or not the County installed the signs or whether or not the sign was not in good repair [are] discretionary acts by the... County."
The TCA governs the liability of public entities for tortious acts. Fundamental to this scheme is restoration of the common law immunity enjoyed by public entities, except as allowed by the TCA. Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998). In other words, "[w]hen both liability and immunity appear to exist, the latter trumps the former." Tice v. Cramer, 133 N.J. 347, 356 (1993).
Here, plaintiff relies on N.J.S.A. 59:4-2, which imposes liability on public entities for dangerous conditions on public property. However, N.J.S.A. 59:4-5 confers immunity on a public entity and its employees for "an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices."
In Weiss v. New Jersey Transit, the Court stated quite plainly, "[w]hen the absence of a traffic signal or the design of the crossing is the true culprit, government is immune." 128 N.J. 376, 385 (1992). Similarly, in Civalier by Civalier v. Estate of Trancucci, the Court held that the failure to affix a traffic safety sign with "vandal-proof" bolts to prevent removal of the sign or to impede removal did not expose a public entity to liability. 138 N.J. 52, 59 (1994). Finally, in Kolitch v. Lindedahl, the Court held that a public entity is immune from liability for placement of a sign that informs the public of a fact, such as the lawful speed limit, or as in this case, the place a bus will stop to pick up passengers. 100 N.J. 485, 495 (1985).
Here, a portion of plaintiff's theory of liability against the County is based on its failure to install a traffic signal at the intersection, to affix the advance pedestrian warning sign to a permanent pole, to install a pedestrian crossing sign at the crosswalk and to allow NJT to place its sign at the site of its bus stop. These claims, founded as they are on the failure of the County to act, or the manner in which it executed its decision to install a traffic safety device, are barred because the County is immune from such claims.
Of course, having installed a traffic safety device, the County has a duty to maintain it, and its conduct regarding maintenance of the device is governed by N.J.S.A. 59:4-2. Shuttleworth v. Conti Constr. Co., 193 N.J. Super. 469, 472-74 (App. Div. 1984). In Shuttleworth, we allowed a claim to proceed founded on a traffic safety device obscured by heavy brush. Id. at 470-71. On the other hand, we have emphasized that "Shuttleworth did not deal with the question of maintaining the stop sign where it was posted or whether the stop sign was placed in a proper location initially. It dealt only with the need to trim bushes on the public entity's property which partially obscured the sign." Smith v. N.J. Dep't of Transp., 247 N.J. Super. 62, 67 (App. Div. 1991), certif. denied, 130 N.J. 13 (1992). In Smith, we held the public entity immune for not replacing a bridge clearance sign. Id. at 68-69.
In Civalier, supra, the Court held that the public entity was not immune from a tort claim based on a missing stop sign. 138 N.J. at 65-66. The accident occurred on November 30, 1989, at an intersection that had been controlled by a stop sign for some time. Id. at 56-57. The stop sign had been reported missing earlier in the month and had been replaced. Id. at 57. Between the time of replacement and the accident, the sign had been removed again. Ibid. The driver of one of the cars involved in the fatal collision was familiar with the intersection and entered the intersection in reliance on the existence of a stop sign controlling the crossing traffic. Id. at 56-57. The Court explained that the recognition by the public entity of the need for signage and the reliance of the other driver on that device qualified the case for treatment under N.J.S.A. 59:4-4, the emergency signal liability provision of the TCA. Id. at 59-61.
Notably, in the course of its discussion, the Court referred to Hoy v. Capelli, 48 N.J. 81 (1966), a pre-TCA case. The Civalier Court recognized that N.J.S.A. 58:4-4 (the emergency signal liability provision) and N.J.S.A. 59:4-5 (the traffic signal immunity provision) codified the law announced in Hoy. 138 N.J. at 60. The Hoy Court held that the public entity was immune from liability following removal of a defective traffic safety device and its failure to install emergency traffic control devices when the defective device had been removed for several months prior to the collision at the intersection and there was no evidence that either driver relied on it. 48 N.J. at 86.
Here, while the records identified by plaintiff's expert create an inference that a crosswalk and a pedestrian crossing sign had been installed at or very close to the point where defendant driver struck plaintiff, we have no evidence that refutes the expert's statement that no crosswalk existed at the time of the November 2005 accident. On the other hand, there is no evidence to establish when the crosswalk markings were removed. There is also no evidence by which a reasonable jury could find that plaintiff relied on the previously installed crosswalk or pedestrian crossing sign. This case is closer to Hoy than the trap situation identified in Civalier. Under these circumstances, we hold that the judge properly granted summary judgment to the County.
B. New Jersey Transit
Plaintiff asserts that an NJT bus stop sign obscured the advance pedestrian sign placed by the County. His expert opined that the sign was placed too close to the advance pedestrian sign and contrary to NJT standards. According to plaintiff's expert, the bus stop sign blocked a westbound motorist's view of the advance pedestrian warning sign and contributed to the occurrence of the accident.
A public entity is immune from liability for claims derived from the placement of a sign that does not misinform the public. Kolitch, supra, 100 N.J. at 495. The public entity is also immune for failing to reinstall a sign that would call attention to an ordinary, continuing and long-standing traffic condition. Smith, supra, 247 N.J. Super. at 71. NJT posted a sign that informed the public of the existence of a bus stop. It is immune from liability in this case.
C. The Commercial Property Owners and Occupiers
The Wilner defendants placed two signs on Oak Tree Road. One sign read "Limousine Service" and the other read "Help Wanted." Defendant Shambhu and the Batra defendants own and operate the commercial property at 1710 Oak Tree Road. They had placed a "For Rent" sign outside the property. Plaintiff also alleged that the Batra defendants allowed other signs to be placed on their property that contributed to a cluttered visual environment that had the capacity to distract drivers.
Plaintiff's claim was supported by an expert opinion. The expert related that advertising signage, particularly in the vicinity of urban intersections, is associated with high accident rates. He described the area around 1710 Oak Tree Road, including the property owned by defendant Shambhu and occupied by the Wilner defendants, as visually cluttered. He opined that the close proximity of the visual clutter to the advance pedestrian warning sign "significantly diminished the prominence of the pedestrian in the driver's field of view, thus contributing to the accident."
The judge granted summary judgment to the commercial property owners and occupiers because plaintiff could not establish that the visual clutter proximately caused the accident. The judge cited defendant driver's deposition testimony in which he testified that he never took his eyes from the road in front of him, he did not see any roadway signs, and his attention was never diverted from the road. The judge concluded, therefore, that the roadway signage did not contribute to the occurrence of this accident. When disputed facts remain, the judge may grant summary judgment if the judge finds that no reasonable jury could find in favor of the party opposing summary judgment even in the face of the disputed facts. Here, however, whether the driver's field of vision was obstructed and whether his attention was diverted from the road are central issues in this case. The judge accepted defendant driver's testimony without qualification and resolved all questions of fact in favor of the moving party.
The Supreme Court, in adopting Judge Baime's dissent in Yun v. Ford Motor Co., 276 N.J. Super. 142, 158-62 (App. Div. 1994), cautioned judges from granting summary judgment based on the absence of proximate cause. Yun v. Ford Motor Co., 143 N.J. 162, 163 (1996). In Yun, a tire mounted on the back of a van fell off, and the operator of the van ventured into the busy road to retrieve it. The operator of the van was struck by another car and killed. 276 N.J. Super. at 152. After noting that questions of proximate cause are ordinarily left to the jury for its factual determination, Judge Baime observed that a reasonable jury might differ whether the van operator's death was proximately caused by the defective spare tire assembly. He wrote:
A jury could find that it was reasonably foreseeable the tire would dislodge and fall onto the roadway while the van was in operation and that the operator or passenger might sustain injuries in his or her attempt to retrieve it. Indeed, some might think it odd if the operator or passenger were to abandon the tire and drive off, especially where, as shown by the record here, traffic is "very light," and "visibility [is] good." And if the operator or passenger were negligent in his or her attempt to retrieve the tire, this would be reflected within the calculus of comparative fault. In other words, the entire incident could reasonably be viewed within an "objective 'realm of foreseeability.'" Bendar v. Rosen, 247 N.J. Super. [219,] 229-30 [(App. Div. 1991)] (quoting Koenig v. General Foods Corp., 168 N.J. Super. [368,] 373 [(App. Div.), certif. denied, 81 N.J. 329 (1979)]. A jury could also reasonably find that the harm that resulted was not proximately caused by the defective assembly and that fairness and logic demand that defendants be absolved from responsibility. I am of the view that the issue is reasonably debatable and one that should be submitted to the jury for its determination. [Id. at 161-62.]
Applying these principles to this case, we hold that whether the visual clutter created by the assemblage of signs in the vicinity of the crosswalk posed a distraction to the driver or whether the signage obscured other signs giving notice of the crosswalk and contributed to the accident should be resolved by a jury. The jury may find that the clutter readily observable in daylight is not noticeable at night and not likely to obstruct a driver's vision or have the capacity to distract a driver. On the other hand, the jury may find that defendant driver's testimony that he never saw anything but the roadway ahead of him strains credulity. It is for this reason that the summary judgment orders in favor of the Wilner defendant and defendant Shambhu and the Batra defendants are reversed.
Affirmed in part, reversed in part and remanded for further proceedings.