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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...