August 12, 2011
OLGA RAMIREZ, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY, NEW JERSEY TRANSIT CORPORATION, AND NEW JERSEY DEPARTMENT OF TRANSPORTATION, DEFENDANTS-RESPONDENTS, AND MARLBORO TOWNSHIP,*FN1 HESS REALTY CORPORATION, WHOLLY-OWNED SUBSIDIARY OF HESS OIL AND CHEMICAL CORPORATION,*FN2 DEFENDANTS, AND STATE OF NEW JERSEY, NEW JERSEY TRANSIT CORPORATION, AND NEW JERSEY DEPARTMENT OF TRANSPORTATION, THIRD-PARTY PLAINTIFFS,
FABIO RODRIGUES AND ALEXIS ROMAN CRUZ, THIRD-PARTY DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5684-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 1, 2010
Before Judges Cuff and Sapp-Peterson.
Plaintiff sustained serious injuries when she was struck by a motor vehicle while attempting to cross Route 9 near Sandburg Drive in Marlboro Township ("Township"). At the time plaintiff crossed Route 9, it was night and she was attired in dark clothing. Route 9, at that location, consists of a four-lane highway, with two lanes in each direction. When struck, plaintiff was crossing Route 9 to reach the bus stop, which was located mid-block rather than at an intersection. According to plaintiff, she had to walk more than 2000 feet to the nearest intersection. There were no traffic markings, pedestrian crosswalk markings, or other traffic warnings near the bus stop. Defendants, New Jersey Department of Transportation ("NJDOT") and New Jersey Transit ("NJT") (hereinafter referred to as "defendants"), filed summary judgment motions invoking the immunity provisions of the Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-3. The court granted the motions, finding there was no dangerous condition of public property occasioned by the location of the bus stop sign, and that no liability could be imposed against defendants based upon their installed traffic signals or other warning devices. We affirm.
The facts, viewed in the light most favorable to plaintiff for summary judgment purposes, are largely undisputed. In 1986, the Township passed a resolution requesting permission from the NJDOT Commissioner "to erect appropriate signs" at certain established bus stops, including those on the northbound and southbound sides of Route 9 at Sandburg Drive. In 1996, the Township passed a similar resolution requesting permission from the NJDOT Commissioner "to erect appropriate signs" at certain established bus stops, including the southbound side of Route 9 at Sandburg Drive. The bus stops are located within the NJDOT right-of-way.
NJDOT does not own the property where the bus stop sign is located, nor did it establish the right-of-way at that location.
It installed the bus stop sign and pole after the location was designated as a bus stop by the Township. Although the bus stop was created by the Township, NJDOT "works closely with municipal officials to identify safe and convenient locations as bus stops, which the municipalities may accept or reject."
Plaintiff retained an expert, S. Maurice Rached, a professional engineer, who authored a report in which he disclosed that over a four-year period, there had been seven accidents on Route 9 in the area of Sandburg Drive, including four pedestrian fatalities and three other pedestrian/vehicle accidents that resulted in serious injuries. He indicated that in order for plaintiff to access the bus stop, she had to either "walk south over 2000 feet to Union Hill Road[,] then back north to the stop at Sandburg Drive, totaling over 4000 feet[,]" without any sidewalk, or she could cross Route 9. He opined that an acceptable distance for a pedestrian to walk "in an urban environment, as is Route 9 . . . [would be] 300-700 feet." His report also referenced a September 2003 publication from NJDOT titled, "Pedestrian Safety and Mobility Aids for Crossings at Bus Stops." He noted that the study of bus stops in the report included the bus stops located near Sandburg Drive. He indicated that the report recommended improvements that should include "sidewalk[s], advance signage, better lighting and ultimately relocation of bus stops." He noted that none of the recommendations had been implemented or initiated by the Township in the area of Sandburg Drive. He concluded:
[T]he various agencies involved, to wit, [NJT], NJDOT and [the Township] have failed to take the necessary steps to ensure that pedestrians in the relevant area, and bus riders in particular, are afforded safe access to mass transit. It is apparent that neither [NJT], NJDOT nor [the Township] conducted any study, design or planning for the Sandburg Drive bus stop. The Bus Stop Design Guidelines, published by the Transportation Research Board, and contributed to by representatives of [NJT], was not adhered to or referenced in the establishment of this bus stop. Furthermore, [the Township] has experienced seven (7) pedestrian/auto collisions at the area where Ms. Ramirez attempted to cross and has not investigated nor asked the NJDOT or [NJT] to initiate any study or implement any supplementary measures to enhance pedestrian safety.
It is apparent from the totality of the circumstances herein that the establishment and maintenance of the subject bus stop and the invitation that it presented to pedestrian traffic originating from the northbound side of Route 9 represents a dangerous condition as the same, within a reasonable degree of engineering probability, created a substantial risk of injury to those pedestrians seeking to utilize the same. Furthermore, that risk was clearly foreseeable under the circumstances given the apparent nature of the safety concerns involved and the prior incidents occurring in the relevant area. The creation and maintenance of the subject dangerous condition was palpably unreasonable in that remediation of this condition would not have involved significant cost, nor would the same be unduly burdensome from an implementation perspective. The remedial measures employed in neighboring Manalapan Township clearly evidence the same. The failure of the uninvolved public entities to take such remedial measures in and of itself was palpably unreasonable. The creation and maintenance of the Sandburg Drive bus stop and the failure to utilize readily available remedial measures was a substantial factor in the happening of this motor vehicle/pedestrian collision.
The motion judge, citing Levin v. County of Salem, 133 N.J. 35 (1993), Ross v. Moore, 221 N.J. Super. 1 (App. Div. 1987), and Sharra v. City of Atlantic City, 199 N.J. Super. 535 (App. Div. 1985), first found that there was no defect associated with the bus stop itself. The judge determined that "absent any such physical defect with the subject property, there can be no dangerous condition" of public property.
The judge rejected plaintiff's contention that a genuine issue of material fact existed as to whether her decision to cross Route 9 at night, rather than walk in the dark to the nearest proper crossing area, was objectively reasonable:
While it may have imposed difficulty on the part of the plaintiff to travel approximately a mile to cross at an appropriate crosswalk, a motor vehicle operator can reasonably foresee people being adjacent to the highway. Cars aren't going to be driving on the side of the road as a matter of habit. However, motor vehicle operators are not likely to anticipate somebody who's going to be crossing in a non-crosswalk or non-intersection area on a high speed roadway at night. This is obvious to motor vehicle operators and should be obvious to the plaintiff as well thereby necessitating even more so the need to go to a safer location to cross the road.
The court also concluded that plaintiff's contention that defendants had constructive notice of the dangerous condition located at the bus stop near Sandburg Drive was not supported by the record. The court noted that "these records do not establish whether any other pedestrians were struck attempting to reach the bus stop. Further, plaintiff includes such a broad area radius as to make connecting any potential for harm to the [siting] of the bus stop far too indefinite to be of any material value." The court noted further that the record was devoid of any evidence indicating that any person or entity requested that defendants remove the bus stop sign.
Next, the judge found that defendants did not engage in any "affirmative act" that altered the location of the bus stop, which was originally placed by the Township, or altered "the area of Route 9 surrounding the bus stop that would in any way constitute a defect in the property itself."
The court also distinguished the facts here from those in Roe ex rel. M.J. v. New Jersey Transit Rail Operations, Inc., 317 N.J. Super. 72 (App. Div. 1998), certif. denied, 160 N.J. 89 (1999). There, we held that NJ Transit may be liable for creating a dangerous condition resulting in injuries to the plaintiff, the victim of an assault, "if it created a dangerous condition on its property that enhanced the risk of assault to persons[,] [such as the plaintiff,] crossing through its property even though the assault [took] place on adjoining property provided, of course, that NJ Transit was aware of, or should have been aware of, the enhanced risk." Id. at 80.
The motion judge also found that in addition to the absence of evidence of an affirmative act by defendants creating or enhancing the risk of danger to pedestrians such as plaintiff, the "risk of injury by traversing a high[-]speed[,] multi-lane highway is clear, open, and obvious." The judge stated: "[T]he danger in crossing [a] four[-]lane[,] high[-]speed highway at night is apparent to any reasonable person or reasonable pedestrian."
Finally, the motion judge recognized the express immunity provisions under Chapter 4 of the TCA for a public entity's failure to place appropriate signage or similar devices in the area of the bus stop and the immunity accorded to defendants in exercising their discretion in not installing sidewalks, a medial barrier along Route 9, or crosswalk in the area of the bus stop near Sandburg Drive.
On appeal, plaintiff contends:
THE TRIAL COURT IMPROPERLY APPLIED A STRICT PHYSICAL DEFECT/ACTIVITY DICHOTOMY AND FAILED TO CONSIDER WHETHER THE PHYSICAL CHARACTERISTICS OF THE PROPERTY[,] COMBINED WITH THE REASONABLY FORESEEABLE USES OF SAID PROPERTY[,] ENHANCED AND/OR CONTRIBUTED TO THE SUBSTANTIAL RISK OF INJURY THAT THE APPELLANT WAS SUBJECTED.
THE TRIAL COURT IMPROPERLY CONSIDERED THE DETAILS OF THE APPELLANT'S ACTIONS IN DETERMINING DUE CARE, WHICH IS MORE APPROPRIATELY A CONSIDERATION FOR A COMPARATIVE NEGLIGENCE ANALYSIS[,] AND SHOULD HAVE CONSIDERED THE NATURE OF THE ACTIVITY ITSELF, WHICH[,] UNDER THE CIRCUMSTANCES[,] A JURY CLEARLY COULD HAVE FOUND TO HAVE BEEN OBJECTIVELY REASONABLE. POINT III
THE TRIAL COURT IMPROPERLY DECIDED THAT THE RESPONDENTS WERE NOT CAPABLE OF PROXIMATELY CAUSING THE APPELLANT'S INJURIES EVEN THOUGH THEY INSTALLED THE SUBJECT BUS STOP, WORKED CLOSELY WITH THE MUNICIPALITY TO IDENTIFY A SAFE AND CONVENIENT LOCATION FOR THE BUS STOP, AND FAILED TO INSTALL A CROSSWALK, TRAFFIC CONTROL DEVICE, MEDIAL BARRIER, OR SIDEWALK.
THE TRIAL COURT FAILED TO CONSIDER THE 2003 NEW JERSEY DEPARTMENT OF TRANSPORTATION REPORT, WHICH IDENTIFIES THE SUBJECT BUS STOP AS A PROBLEMATIC SITE AND INDICATES THAT THE RESPONDENTS IN FACT HAD ACTUAL NOTICE OF THE DANGEROUS CONDITION COMPLAINED OF.
THE TRIAL COURT IMPROPERLY APPLIED THE ORDINARY TRAFFIC SIGNALS STATUTE, N.J.S.A. 59:4-5, TO A SITUATION WHERE THE RESPONDENTS HAVE NEGLIGENTLY AND AFFIRMATIVELY CREATED A DANGEROUS CONDITION ON PUBLIC PROPERTY.
We have considered the points in light of the arguments of counsel, the briefs, the record and applicable legal principles, and we are satisfied there were no genuinely disputed issues of fact sufficient to defeat defendants' summary judgment motion, and the motion judge applied the correct law to the facts. We therefore affirm substantially for the reasons expressed by Judge Paul A. Kapalko in his oral opinion of December 18, 2009. We add the following comments.
Our review of the grant of summary judgment is de novo, employing the same legal standards used by the motion judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006).
In so doing, we view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 529 (1995). We accord no special deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Spring Creek, supra, 399 N.J. Super. at 180; Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
Measured against this standard, the record establishes, as a matter of law, that no liability may be imposed against defendants arising out of a defect in public property or their failure to provide a medial barrier, crosswalk, or traffic signal in the area of the bus stop. We initially reiterate that the Legislature adopted the TCA in response to the judicial abrogation of sovereign immunity. Gilhooley v. Cnty. of Union, 164 N.J. 533, 538 (2000). Under the TCA, immunity of public entities from tort liability is re-established, except where there is a statutory declaration of liability. Ibid.
Because the facts here are not disputed, the only question before the motion judge was whether an exception to the immunity provisions under the TCA existed to defeat summary judgment.
Plaintiff attempts to avoid the express provisions under N.J.S.A. 59:4-5, immunizing public entities for injuries caused by the "failure to provide ordinary traffic signals, signs, markings or other similar devices," by arguing that the bus stop was placed in a location where pedestrians would be at risk for attempting to access the bus stop. However, her theory of liability repeatedly points to the absence of a crosswalk or traffic signal at or near the location of the bus stop, omissions that are expressly immunized under the TCA.
Likewise, plaintiff's attempt to establish a prima facie case of a dangerous condition of public property is flawed in two respects. First, the principle that immunity always trumps liability is well-settled. Fleuhr v. City of Cape May, 159 N.J. 532, 539 (1999); Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008). Second, plaintiff's argument focuses on the physical characteristics of the area surrounding the bus stop, none of which are alleged to have been defective. Plaintiff's expert concluded there were no physical defects in the public property itself. Rather, he opined that it was the activity associated with the property, namely, the traffic conditions and absence of a crosswalk and traffic signals in the area of the bus stop, that caused the harm to plaintiff, factors that implicate the immunity provisions under the TCA. Weiss v. N.J. Transit, 128 N.J. 376, 385 (1993).
A similar argument was advanced by the plaintiff in Levin, which the Court rejected. Levin, supra, 133 N.J. at 37. There, the plaintiff sustained severe injuries when he dove from a county-owned bridge that spanned shallow tidal waters. Ibid. There was no dispute that the county was aware that the bridge was used for diving and other recreational purposes, although it was disputed whether warning signs and signs prohibiting diving had been erected. Id. at 39. In affirming our decision upholding the trial court's grant of summary judgment to the public entities, the Court observed that there was no physical defect in the property:
[T]here was no missing plate, no broken bolt, no defect in the bridge itself that caused or contributed to cause the tragic accident. The danger arose because the bridge [traversed] shallow water. No other activity or inactivity of the public entities in this case forms a basis for liability under the Act[.] [Id. at 50.]
Thus, the Court did not adopt our reasoning in King v. Brown, 221 N.J. Super. 270, 275 (App. Div. 1987), that activity on the property, along with the physical character of the property, may establish a dangerous condition within the meaning of Chapter 4 of the TCA. Therefore, the focus of the analysis of whether a dangerous condition of public property exists remains upon the "the physical condition of the property itself." Levin, supra, 133 N.J. at 44 (quotation and internal quotation marks omitted).
In short, in the absence of any physical defect in the property, no liability may be imposed upon defendants arising out of their failure to place appropriate signs in the area of the bus stop or based upon the activities of the public entity on the property. Ibid.