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Thomas C. Haynes, Esquire, Guardian Ad Litem of Adiel Varela, A Minor v. State of New Jersey


April 29, 2011


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket Nos. L-4036-07 and L-4065-07.

Per curiam.


Submitted April 6, 2011

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 did not explain in detail how any of these other accidents occurred or their exact locations, except to assert that the location had a history of "run-off-the-road accidents."


On December 4, 2007, Haynes filed a seven-count complaint against the State, Canales, Mendoza, and various unnamed individuals and entities. The pleading alleged that there existed on Route 322, a "dangerous condition . . . not limited to the following: a dangerous cross-slope and/or super-elevation, dangerous geometry and profile, lack of traffic control devices (such as guide rails and reduced speed limit signs), lack of curbing, lack of pavement markers, lack of rumble strips, improper lighting and unsafe sight distances." It was further asserted that the State had actual or constructive notice of the hazardous condition and "knew or should have known that it created a reasonably foreseeable risk of . . . injury to [others]." Lastly, it was alleged that the State breached its duty to maintain its roads in a "reasonably safe condition," and to repair or warn foreseeable plaintiffs of the dangerous condition.

With regard to defendant Canales, the complaint alleged that he contributed to the negligence of the State by "fail[ing] to make proper observations of the road conditions . . . [and by] operating his motor vehicle at a high rate of speed." It also claimed that Mendoza negligently entrusted Canales with the vehicle.

The State moved for summary judgment asserting immunity pursuant to the TCA. Without addressing the State's claim of plan and design immunity, N.J.S.A. 59:4-6, the Law Division granted summary judgment on the basis of N.J.S.A. 59:4-2, finding that Canales's "decision to drive in the early morning hours while tired . . . was an objectively unreasonable use of the property and, accordingly, there was no dangerous condition within the meaning of the [TCA]." We granted leave to appeal this interlocutory determination.



Because this appeal arises from a grant of summary judgment, we apply the same standard applied by the motion court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We first must decide whether there is a genuine issue of fact. Luchejko v. City of Hoboken, 414 N.J. Super. 302, 309-10 (App. Div.), certif. granted, 205 N.J. 98 (2010). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2. If there is no genuine issue of fact in dispute, we must then determine whether the moving party is entitled to judgment as a matter of law. Luchejko, supra, 414 N.J. Super. at 310. Our review of the motion court's ruling is plenary and we owe no deference to legal conclusions "that flow from established facts." Posso v. Acceleration Nat'l Ins. Co., 402 N.J. Super. 381, 385 (App. Div.) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 197 N.J. 14 (2008).


The principal issue on appeal is whether, when viewed through the prism of the TCA, the proofs offered by Haynes were sufficient to raise a genuine material dispute as to whether the road conditions at the accident site, including the absence of guide rails or rumble strips, created a "dangerous condition." Haynes asserts that the Black Horse Pike -- State property -- in the vicinity of the subject residence was in a dangerous condition as a result of the road widening project that brought the traffic lanes approximately three feet closer to the property, together with the absence of guide rails and lack of rumble strips. The State counters that the court properly found that operating a motor vehicle while sleeping is not an objectively reasonable use of the road, precluding liability under the TCA.

The TCA governs actions against governmental entities and public employees. Specifically, N.J.S.A. 59:4-2 deals with governmental liability for injuries caused by "dangerous conditions" on public property. See also Polzo v. Cnty. of Essex, 196 N.J. 569, 578-79 (2008). Under the TCA, liability is the exception, not the rule. Id. at 578; Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 488 (2005). Accordingly, before a public entity will be held liable, a plaintiff must establish that (1) "the property was in dangerous condition at the time of the injury"; (2) the dangerous condition proximately caused plaintiff's injury; (3) the dangerous condition created a reasonably foreseeable risk of the type of injury that occurred and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. [N.J.S.A. 59:4-2.]

Even if all of these elements are satisfied, liability will only be imposed where "the action the entity took to protect against the condition or the failure to take such action was . . . palpably unreasonable." Ibid.

The first requisite to liability under the TCA, and the threshold issue in this case, is the existence of a dangerous condition. Ibid.; Margolis & Novak, Claims Against Public Entities, comment on N.J.S.A. 59:4-2, at 126 (Gann 2011) (N.J.S.A. 59:4-2 "applies only where a dangerous condition of the property itself is at issue"). Whether a dangerous condition exists is a question of fact. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 123-24 (2001). However, like any other fact question before a jury, the court may make preliminary findings to determine whether a reasonable factfinder could conclude that the property was in a dangerous condition. Id. at 124.

N.J.S.A. 59:4-1 defines "dangerous condition" as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." Ibid. The term "'used with due care' implies a standard of objective reasonableness." Garrison v. Twp. of Middletown, 154 N.J. 282, 291 (1998). Therefore, in determining whether a dangerous condition exists in fact, the test is "'whether the property creates a substantial risk of injury to persons generally, who would use the property with due care in a foreseeable manner.'" Id. at 291-92 (quoting Daniel v. N.J. Dep't of Transp., 239 N.J. Super. 563, 587 (App. Div.) (emphasis in original), certif. denied, 122 N.J. 325 (1990)); see also Vincitore, supra, 169 N.J. at 125 (2001) ("[T]he standard is whether any member of the general public who foreseeably may use the property would be exposed to the risk created by the alleged dangerous condition.").

This inquiry necessarily requires us to consider "the activity in which the plaintiff engaged." Garrison, supra, 154 N.J. at 292. In Garrison, plaintiff injured his knee when he tripped on a declivity in a paved commuter parking lot while playing night football. Id. at 285. There, the Court held that the declivity did not pose a substantial risk of injury to "commuters or to other persons" who used the parking lot in a foreseeable manner and with due care. Id. at 293. It further held that Garrison's conduct, playing "[t]ouch football on a poorly-lit uneven railroad-station parking lot" at night was "as a matter of law, 'without due care.'" Ibid.

In the instant case, Canales was using the State's property for its permitted and intended use: driving a motor vehicle. The critical question then, is not whether Canales was making an objectively reasonable use of the road, but whether the complained-of span of highway posed a "substantial risk of injury" to the public at large who utilized the roadway with due care. See N.J.S.A. 59:4-1.

In this regard, the motion court's reliance on Garrison was misplaced. It concluded that Canales's independent act of negligence -- falling asleep at the wheel -- was not consistent with due care, and therefore "there was no dangerous condition within the meaning of the [TCA]." While we agree that Canales failed to exercise due care when he fell asleep at the wheel and that the span of roadway in front of the decedents' home was not a dangerous condition, these are independent findings that should have been kept separate.

The controlling question, more accurately stated, is whether, under N.J.S.A. 59:4-1(a), the roadway created a "substantial risk of injury" when used in a reasonably foreseeable manner and with due care. See King ex rel. King v. Brown, 221 N.J. Super. 270, 275-76 (App. Div. 1987) ("[T]he test is whether the condition complained of creates a substantial risk of injury despite the exercise of due care."); Speaks v. Hous. Auth. of Jersey City, 193 N.J. Super. 405, 411 (App. Div.) ("While the degree of that risk may vary from slight or nonexistent to great depending on the use made, it remains the condition of the property which will determine whether any risk exists."), certif. denied, 97 N.J. 655 (1984).

Thus, "[w]hen the property [itself] poses a danger to all users, an injured party may establish that property was in a dangerous condition notwithstanding his or her failure to exercise due care." Garrison, supra, 154 N.J. at 292 (citing Furey v. Cnty. of Ocean, 273 N.J. Super. 300, 310-11 (App. Div.) (holding that because a drop-off on the road where the lane met the shoulder was unsafe "for drivers in general," it was "irrelevant why decedent's vehicle left the road"), certif. denied, 138 N.J. 272 (1994)). By contrast, where external factors, such as heavy traffic or in the instant case, a drowsy driver, make the act of driving more hazardous, the property itself does not become more dangerous. Rather, "the greater the risk, the greater the care required." King, supra, 221 N.J. Super. at 276; see also Vincitore, supra, 169 N.J. at 127-28 (distinguishing facts from Garrison and concluding that because plaintiff was using the property in a reasonably foreseeable manner -- driving across railroad tracks in reliance on an open gate -- his inattention to the oncoming train was relevant to proximate causation, not the existence of a dangerous condition).

Here, the roadway was not inherently dangerous to all foreseeable users. That is, Haynes adduced no evidence to show that the Black Horse Pike in the vicinity of the accident site created a substantial risk of injury despite the exercise of due care by motorists and pedestrians alike. C. William Kingsland, manager of South Region Maintenance at the NJDOT; Frank Schoenstein, NJDOT Assistant Crew Supervisor for Highway Maintenance; Malcolm Palmer, NJDOT Regional Construction Engineer; and Douglas Bartlett, NJDOT Manager of the Bureau of Traffic Engineering and Investigations, all denied ever receiving or hearing complaints about the accident site before or after the incident, or that the location had a particular reputation for safety or lack of safety within the NJDOT. David Martin, NJDOT Supervising Engineer, also testified that the Department had received no requests for guide rails at the accident site.

Furthermore, Haynes's reliance on prior accidents in the vicinity of the accident site, which included twenty-eight vehicles leaving the road from the eastbound lanes of travel and a single vehicle hitting the Varela's porch, is not significant. In Wymbs v. Township of Wayne, 163 N.J. 523 (2000), a passenger sued the Township of Wayne and the State after he sustained injuries when the driver of the car he was in failed to negotiate a curve in the road. The Court held that prior accident history may be admissible as substantive evidence of a dangerous condition only where plaintiff can establish "(1) the same or substantial similarity of circumstances between the prior accident and the one involved in the case on trial, and

(2) the absence of other causes of the accident." Id. at 536. Although plaintiff's expert reported twenty-eight instances

of vehicles departing from the eastbound lanes of travel within one and one-half miles of the decedents' home in the previous almost-five years and one instance involving the striking of decedents' porch, there was no evidence to suggest that those instances were caused by a dangerous condition on the road. Thus, because a general listing of a roadway's accident history or "nonspecific testimony that the roadway had been the site of numerous accidents," without more, is insufficient to establish a dangerous condition within the meaning of N.J.S.A. 59:4-1, the evidence of prior accidents had no probative value in the context of this case. Pandya v. State, 375 N.J. Super. 353, 371-72 (App. Div. 2005); see also Di Domenico v. Pennsylvania- Reading Seashore Lines, 36 N.J. 455, 464-65 (1962) (before a location's accident history "can have any probative value it is incumbent upon the party who offers the evidence to show the other occurrences took place under the same or substantially the same conditions as the accident in question").

Haynes nevertheless argues that the five-year accident history, when combined with the foreseeable acts of third parties, created a dangerous condition. For support, he relies on Roe ex rel. M.J. v. New Jersey Transit Rail Operations Inc., 317 N.J. Super. 72 (App. Div. 1998), in which we held that N.J. Transit may be held liable for enhancing the risk of assault on pedestrians who utilized a shortcut created by an open gate on N.J. Transit property and which led pedestrians into a high crime area. Specifically, we held that if N.J. Transit knew or should have known of the inherent peril of the neighborhood, especially in the dark and isolated gateway under the Route 280 underpass, it could be liable for enhancing pedestrians' risk of assault by leaving the gate open and inviting them to utilize the shortcut. Id. at 81-82. Plaintiff also cites to Saldana v. DiMedio, 275 N.J. Super. 488 (App. Div. 1994), in which Camden property owners sued the city to recover for fire damage to their property caused by fires originating in adjacent abandoned buildings owned by the city. There, the court adopted the reasoning set forth in Menth v. Breeze Corp., 4 N.J. 428 (1950), which held that where "'an owner or occupier by reason of his negligence has kept his premises in an unsafe and dangerous condition . . . [he] may be held answerable for the damage caused by the spread of the fire even though such fire may have been started by the act of a third person . . . if such act was reasonably foreseeable as the natural and probable consequence of the negligent manner in which the premises were kept.'" Saldana, supra, 275 N.J. Super. at 498 (quoting Menth, supra, 4 N.J. at 439-40). Finally, plaintiff analogizes the instant case to Speaks, in which we imposed liability on a housing project when a bicycle frame was thrown out of an eighth floor stairwell window, striking a child playing in the common yard below. Speaks, supra, 193 N.J. Super. 405. There, the alleged dangerous condition was a missing upper window frame, enabling the bicycle to fit through the open window. Id. at 410-12.

These cases are inapposite. First, Canales's independent act of falling asleep at the wheel was not the "natural and probable consequence" of the absence of guide rails or rumble strips at the accident site. Saldana, supra, 275 N.J. Super. at 498 (internal quotations omitted). In fact, Bartlett testified at his deposition that guide rails are designed to "redirect traffic," not to prevent vehicles from driving off the road.

Moreover, unlike the neighborhood in Roe, Haynes has not established that the portion of Black Horse Pike in front of the Varela home was inherently dangerous to motorists, such that failure to erect guide rails would enhance an existing risk of harm or invite motorists to drive off the road. In other words, there was no "defect in the property itself," that when combined with "the acts of third parties," posed an unreasonable risk of harm. Roe, supra, 317 N.J. Super. at 79.

Speaks is also distinguishable. Relying on Speaks, Haynes urges that the condition of the highway in front of the home posed a danger to the inhabitants of those in the adjacent homes just as the open window in Speaks posed a danger to innocent bystanders below. However, as noted in Levin v. County of Salem, 133 N.J. 35 (1993), where there is no defect in the property, which, when combined with the "foreseeable neglect or misconduct of third parties . . . renders the property unfit," there can be no liability under the Act. Id. at 49; Margolis & Novak, supra, comment on N.J.S.A. 59:4-2 at 129 ("[A]bsent a defect in the public property itself foreseeability of risk is not enough to create a dangerous condition."). Here, unlike the missing window frame in Speaks, there was no defect in the road that when combined with the foreseeable neglect of third-party drivers, "render[ed] the property unfit." Levin, supra, 133 N.J. at 49.

The instant case is more akin to Ross v. Moore, 221 N.J. Super. 1 (App. Div. 1987), in which plaintiff, an evening student at a public high school, brought suit against a local board of education after she was struck by a car while on her way to class. She alleged that the high school's failure to provide a sufficient number of parking spaces in the school parking lot, made it reasonably foreseeable that students would park in the shopping center lot across the street and jay-walk across the public street to get to class, creating a dangerous condition. Id. at 4-5. There, consistent with prior case law, the court "rejected the contention that dangerous activities of other persons on public property, even if reasonably foreseeable, establish a dangerous condition of the property itself." Id. at 5.

As in Ross, where it was conceded that "no danger inhered in the school's failure to provide sufficient parking spaces for adult evening students except in combination with the reasonable foreseeability of an accident to an adult evening student forced to park elsewhere," no danger inhered in the section of highway in front of decedents' house, except in combination with the reckless actions of third-party drivers. Ibid. Haynes has pointed to no dangerous condition on the property that actively contributed to Canales driving off the road. See Levin, supra, 133 N.J. at 49. Accordingly, summary judgment was properly granted to the State on this basis alone.

Even if the property constituted a dangerous condition, it cannot be said that the State's action or inaction in maintaining the stretch of highway in front of decedents' residence was "palpably unreasonable." N.J.S.A. 59:4-2. For an action or inaction of a public entity to be considered "'palpably unreasonable,' . . . 'it must be manifest and obvious that no prudent person would approve of [it].'" Holloway v. State, 125 N.J. 386, 403-04 (1991) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)).

Haynes's bald assertion that the accident could have been avoided by the installation of guide rails or rumble strips at the accident site is not enough to show that the State's inaction was "palpably unreasonable." As previously noted, guide rails are principally intended to "redirect traffic," not to stops cars from attempting to leave the road. Second, Bergman's report, which cited The American Association of State Highway and Transportation Officials (AASHTO) Roadside Design Guide 2002, noted that "[b]arriers . . . to protect adjacent land use" are a matter of "design judgment." Finally, there had been no prior complaints to the NJDOT about the stretch of highway that would have alerted its employees to the alleged dangerous condition. As such, the State's failure to implement safety measures that may or may not have prevented the injuries suffered in the instant case was not palpably unreasonable and Haynes's claims under the TCA must fail.


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