On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket Nos. L-4036-07 and L-4065-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and J. N. Harris.
In this interlocutory appeal, we consider aspects of the instant wrongful death action in which plaintiff Thomas C. Haynes -- the guardian ad litem of Adiel Varela and Christopher Varela, minors*fn1 -- seeks remedies for the deaths of the children's parents. We granted leave to appeal in order to review the summary judgment dismissal of Haynes's claims against defendant State of New Jersey, pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 14-4. We affirm.
Haynes's claim arises out of a tragic incident that occurred two and one-half hours before sunrise on December 9, 2005, in Egg Harbor Township. Co-defendant Ober Canales crashed a motor vehicle owned by defendant Cristobal Mendoza into the Varela family home, killing the parents of three young children while they slept in their bedroom. The adjoining roadway, Black Horse Pike, did not have guide rails or rumble strips along the traveled way to either alert drivers to their position or protect persons and property immediately adjacent to the right of way. Because we find that no reasonable jury could find that the span of roadway outside the Varela home constituted a dangerous condition within the meaning of the TCA, we affirm.
The facts are essentially undisputed. On December 9, 2005, at approximately 4:30 a.m., Canales was driving eastbound on the Black Horse Pike in Egg Harbor Township when he fell asleep at the wheel. The vehicle, borrowed from Canales's father-in-law, was now moving out of control. It struck a traffic sign post and utility pole; careened across a sidewalk, smashed through a hedgerow, sideswiped a tree, and crashed into the Varela residence. The vehicle came to a rest atop the bed of Jose Varela and Blanca Santiago, resulting in their deaths. To better visualize the path of the vehicle, the following is an excerpt from the police report prepared by the Egg Harbor Township Police Department:
In his deposition, Canales remembered that before the crash, "[he] felt like -- for a minute [he] felt like [he] was falling asleep, that [he] was going to lose control of the car," and then encountered a curve in the road. Canales did not recall striking the traffic sign, hedge, and utility pole or colliding with the house, and did not awake until he heard shouts and screams coming from the front of his vehicle. Once alerted by the sounds, he attempted to back out of the residence but was unable to do so.
Canales pled guilty to two counts of second-degree vehicular homicide, N.J.S.A. 2C:11-2, third-degree attempting to leave the scene of an accident, N.J.S.A. 2C:5-1, and driving while intoxicated, N.J.S.A. 39:4-50, for which he is currently serving an aggregate fourteen-year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. According to the judgment of conviction, Canales had a blood alcohol level of .08.*fn2 He testified at deposition that he had consumed approximately four drinks in the seven hours preceding the accident and had slept six or seven hours the night before. He also averred that he was "driving just at the speed limit" prior to leaving the roadway.
The Black Horse Pike, also referred to as Route 322, is owned and maintained by the State. It is a four-lane roadway with two eastbound and two westbound lanes of travel. In August 2004, the New Jersey Department of Transportation (NJDOT) completed a road widening project in which the eastbound lanes in front of the Varela residence were widened from approximately eleven feet to fourteen feet. The posted speed limit at that location was forty-five miles per hour.
An investigation conducted by Haynes's expert, Keith A. Bergman, P.E. (Bergman), revealed that approximately forty-nine vehicles were reported to have left the roadway of the Black Horse Pike within one and one-half miles from the scene of the accident between January 1, 2001, and December 9, 2005. Twenty-eight of these vehicles were traveling in the eastbound lanes of travel. On February 18, 2004, one such vehicle struck the Varela's porch.*fn3
Bergman opined that the State "acted in a palpably unreasonable manner when it created a dangerous condition by widening Route 322 virtually to the doorstep of the unprotected home where [plaintiff's decedents] were killed on December 9, 2005." Concluding that the four-inch high curb was insufficient to keep vehicles from going off the road, he further asserted that a barrier, such as a guide rail, should have been installed to protect the residences directly adjacent to the roadway. Moreover, he noted that the State had sufficient notice of the dangerous condition by virtue of the extensive accident history of vehicles leaving the roadway in the vicinity of the Varela home. Bergman ...