On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3194-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 15, 2011 Before Judges Carchman and Messano.
Plaintiff Joseph G. Casella appeals from the grant of summary judgment to defendant, Township of Manalapan, based upon the plan or design immunity provisions of N.J.S.A. 59:4-6(a). We have considered the arguments raised in light of the record and applicable legal standards. We reverse.
On July 20, 2006, plaintiff was riding his motorcycle in an easterly direction on Mill Road in Manalapan. Pauline Dunn was driving her car in a northerly direction on Tall Woods Drive, approaching its T-intersection with Mill Road. There was a stop sign controlling traffic exiting Tall Woods Drive. Dunn stopped and then proceeded into the intersection apparently without observing plaintiff's motorcycle. Plaintiff attempted to avoid a collision with Dunn but was unable to do so. The motorcycle crashed into Dunn's car, and plaintiff was ejected from the bike and rolled over the hood of Dunn's car, landing on the pavement.
On July 7, 2008, plaintiff commenced suit alleging defendant had negligently "design[ed], erect[ed] and maintain[ed]" the stop sign at the intersection at a distance "of approximately fifty . . . feet from the curbline of Mill Road," creating a "dangerous condition" at the intersection.
Defendant answered and filed a third-party complaint against Dunn.*fn1 Discovery ensued.
A November 13, 2006 police department memo authored by Manalapan Police Department patrolman Robert Kelly noted the following:
Recently, a serious motor vehicle crash occurred at the intersection of Tall Woods Drive and Mill Road. During the investigation of the crash, it came to my attention that the stop sign and stop bar placement on Tall Woods Drive were 49 feet from [the] intersection of Mill Road. At the location of the stop bar and stop line, there is very limited sight distance of Mill Road.
I consulted with Township Engineer, Len Miller, regarding the placement of the stop sign and stop bar . . . . In short, the stop sign and stop line placement are not in compliance with the Manual On Uniform Traffic Control Devices (MUTCD). I have attached . . . Miller's memo regarding the proper placement of stop signs/stop bars for your perusal. . . .
I am requesting that you please move the stop sign and stop bar on Tall Woods Drive as close as possible to the intersection of Mill Road, bringing [it] in compliance with the MUTCD.*fn2
The attached memo from Miller, defendant's Director of Engineering, indicated that his review of the MUTCD required the stop sign to "be located as close as practical to the intersection it regulates, while optimizing its visibility to the road user." Miller interpreted the MUTCD to require the stop line to be no "more than 30 ft. nor less than 4 ft. from the nearest edge of the intersecting traveled way."
Plaintiff produced a report from an engineering expert who opined that the placement of the stop line and sign did not comply with the MUTCD and created a dangerous condition at the intersection by limiting the sightlines of drivers exiting Tall Woods Road. Defendant also produced an expert who, while not specifically addressing whether the placement complied with the MUTCD, nonetheless concluded that adequate sightlines were provided, and the accident was essentially Dunn's fault alone.
Defendant moved for summary judgment arguing that it was entitled as a matter of law to the plan and design immunity afforded by N.J.S.A. 59:4-6. In support of its motion, defendant offered various documents setting forth the history of Mill Road Estates I, the residential development which includes the intersection at issue. Manalapan's Planning Board approved preliminary and major subdivision of the project by resolution dated March 13, 1987. As part of the Planning Board's review of the project, the site plans were circulated for review by municipal departments. Defendant's police department recommended that stop signs be erected at both ends of Tall Woods Road, but offered no suggestions regarding details of their installation. The Planning Board's subsequent resolution granting final approval in October 1987 expressly notes consideration of the police department's recommendation concerning the stop signs, but makes no reference to the precise location. It is undisputed that defendant produced no plans indicating where the proposed locations of the stop line or stop sign were to be, or where they were actually installed.
During construction of Mill Road Estates I, defendant retained an independent engineer, CME Associates (CME), to ensure the project was constructed according to approved plans, and to approve releases of the performance bonds posted. On November 11, 1987, CME documented the installation of two stop signs on its list of completed improvements; the locations of the signs are not disclosed. On December 11, 1992, CME submitted a report to Manalapan's mayor and the township committee regarding the balance of performance guarantees required of the developer. The report again lacked detail regarding the developer's installation of two stop signs.
The project was essentially completed in November 1994. In a memo dated December 14, 1994, CME approved the improvements and recommended release of the remaining performance bonds after a field inspection. Miller notified the governing body, which in turn passed a resolution releasing the bonds on December 24.
Miller was deposed during this litigation. He testified that the plans for Mill Road Estates I do not show the placement of any stop signs at the ...