On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1297-05 and L-1362-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez and C.L. Miniman.
Plaintiffs Anthony Conforti and Susan Conforti, his wife, appeal from a January 9, 2009, order granting summary judgment in favor of defendant State of New Jersey, Department of Transportation (the DOT). We affirm.
Before addressing the merits of this appeal, we address its procedural posture. Plaintiffs urged that the 2009 order was rendered final by virtue of a 2010 order dismissing their complaint against defendant Mariusz Kantorowski. The 2010 order recited that plaintiffs intended to appeal the 2009 order and then provided that, should it "be reversed and remanded, . . . the Judgment of No Cause of Action against . . . Kantorowski will be vacated and the complaint reinstated so that the matter will proceed to trial against both [the DOT and Kantorowski]."
Rule 2:2-3(a) allows parties to appeal as of right from final judgments and orders. To be eligible for appeal as a final judgment, the order must be final as to all parties and all issues. N.J. Sch. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308 (App. Div. 2010); Grow Co. v. Chokshi, 403 N.J. Super. 443, 457-58 (App. Div. 2008). Where a dismissal without prejudice of a party contemplates further action and is entered for the purpose of rendering an otherwise interlocutory order appealable, such a dismissal precludes finality and hence the appealability of an earlier order. Richard A. Pulaski Constr. Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 462-63 n.5 (2008); Grow Co., supra, 403 N.J. Super. at 460-61; Ruscki v. City of Bayonne, 356 N.J. Super. 166, 168-69 (App. Div. 2002).
This rule exists because the review of interlocutory orders is committed to our sound discretion, in the interest of justice, pursuant to Rule 2:2-4. It is not a discretion allowed to the trial courts. We employ a stringent standard to our review of motions for leave to appeal. See Brundage v. Estate of Carambio, 195 N.J. 575, 599 (2008) (noting that the stringent standard for grant of leave to appeal is based on the "general policy against piecemeal review of trial-level proceedings" (citation omitted)). This power is "highly discretionary" and "exercised only sparingly." State v. Reldan, 100 N.J. 187, 205 (1985) (citations omitted). Thus, plaintiffs had no right to appeal the 2009 order, and the judge ought not to have entered the order submitted by them. Lest the DOT avoid criticism, we note that we have commented that motions to dismiss improvidently filed appeals should be made by a respondent prior to the filing of a responding brief. Gloucester City Bd. of Educ. v. Am. Arbitration Ass'n, 333 N.J. Super. 511, 519-20 (App. Div. 2000) ("[W]hen an appeal [from an interlocutory order] has been improvidently filed, a respondent has a responsibility to the court to file a timely motion to dismiss the appeal."). Although this appeal by all rights ought to be dismissed by us, we elect in this instance to grant leave to appeal nunc pro tunc and will decide the matter on the merits.
Plaintiff Anthony Conforti (Anthony) was driving on Old York Road in Branchburg at the intersection with Route 202 on September 19, 2003. He came to a halt at the traffic signal, intending to turn left. The traffic signal appeared to be red, although it was actually green, because it had been blown "out of focus" as a result of high winds during Hurricane Isabel earlier that morning. When the light appeared to turn green for Anthony, he began to proceed through the intersection, making a left-hand turn to travel north on Route 202. Meanwhile,
Kantorowski, who was traveling south on Route 202, observed a different traffic signal at the intersection indicating green for his direction of travel. The vehicles collided, and Anthony suffered a serious injury to his knee.
Plaintiffs sued Kantorowski, the DOT, the County of Somerset, and the Township of Branchburg. In their complaint, they alleged that the DOT "was responsible for the maintenance, repair, road control signage and road control signals and devices on State Highway Route 202." They asserted that the DOT, through its officers, agents, and employees, "negligently, carelessly and recklessly designed, constructed and maintained said roadway and traffic control devices," causing defects to the traffic control light and the ensuing accident.
After discovery, the DOT moved for summary judgment. There was no dispute that the traffic light had in fact been turned as a result of the high winds. It was also undisputed that the DOT's first and only notification that the traffic light was turned due to the high winds of Hurricane Isabel was received twenty minutes after the accident happened. The intersection is controlled by six fixtures, including fixtures 1, 7 and 11, which became twisted by the high winds. Plaintiffs' expert opined that the wind force actually moved light fixtures 1, 7, and 11 out of alignment. The DOT argued that it was entitled to weather immunity pursuant to N.J.S.A. 59:4-7. It also urged that plaintiffs could not establish all of the elements of a dangerous condition within the meaning of N.J.S.A. 59:4-2.
Plaintiffs opposed the motion, arguing that weather immunity did not protect the DOT from liability in the case. They also urged that they had satisfied each of the requirements of N.J.S.A. 59:4-2. They asserted that weather immunity did not apply because Anthony's injuries were not caused solely by the effect of the weather on the traffic signals. As a result, they contended that they should have the opportunity at trial to demonstrate that negligent maintenance in addition to the weather caused the dangerous condition leading to the accident.
As to N.J.S.A. 59:4-2, plaintiffs argued that palpable unreasonableness was a question of fact to be determined only by a jury and that a public entity can also be liable under N.J.S.A. 59:4-4 for failure to provide warnings of emergent and dangerous conditions on roads and highways. They pointed to the fact that the DOT maintenance man who testified at a deposition admitted that other traffic control fixtures at the same intersection had loosened or slipped over time because of loose mechanical apparatus, causing them to be ...