On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3997-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2011
Before Judges Fisher and Baxter.
Plaintiff Lettitia Jackson is the mother of Qaadir Jackson and Wayne Jackson who, at 9:30 p.m. on the night of June 25, 2004, attempted to cross State Highway 38 near the Cherry Hill Mall, not at a crosswalk or traffic light, but instead by running across the three westbound lanes and attempting to cross a three-foot high concrete medial barrier dividing the eastbound and westbound sides. Both boys were struck by a vehicle operated by defendant Saul A. Friedman. Wayne, who was thirteen years old, did not survive. Qaadir, who was twelve, was severely injured.
Plaintiff instituted suit against the State,*fn1 Friedman and a number of other defendants. Our focus in the present appeal is confined to plaintiff's allegations against the State.*fn2
Plaintiff asserted that the State was liable for the death and injuries sustained by her sons because the State negligently failed to replace a pedestrian overpass that was demolished when a commercial vehicle struck the overpass in December 1999. She alleged that the State breached its duty to replace the overpass, and was liable to her for its failure to do so, as the lack of a pedestrian overpass made the highway unreasonably dangerous to pedestrians, such as her sons. The Law Division granted the State's motion for summary judgment, reasoning that: the road was not in a dangerous condition; the children failed to exercise due care; and that several statutory immunities entitled the State to a grant of summary judgment. While we do not agree with the judge's conclusion that N.J.S.A. 59:4-5 confers immunity, we do agree with his determination concerning N.J.S.A. 59:2-3(c) and (d). As a result, we affirm the grant of summary judgment to the State.
In reviewing a trial judge's grant of summary judgment, this court applies the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The judge's legal conclusions are subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). An issue of fact is considered 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." Ibid.
The trial court must determine whether the evidence presented, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Where "there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue [is] insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. The inquiry is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536).
On appeal, plaintiff maintains the trial judge erred in granting summary judgment to the State because neither of the statutes upon which the judge relied, N.J.S.A. 59:4-5 or 59:2-3(c), (d), affords immunity to the State under the circumstances presented here.
The two statutes upon which the judge relied are a part of the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3. The guiding principle when construing a portion of the Act is the Act's command that a public entity is immune from tort liability unless the Act expressly provides otherwise. N.J.S.A. 59:2-1. The statute states:
a. Except as otherwise provided by this
[A]ct, a public entity is not liable for an injury whether such injury arises out of an act or omission of the public entity or a public employee or any other person.
b. Any liability of a public entity established by this [A]ct is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person. [N.J.S.A. 59:2-1(a) and (b).]
See also Weiss v. N.J. Transit, 128 N.J. 376, 381-82 (1992) (holding that any immunity provision under the Act prevails over any liability provision). Any tort claim asserted against a public entity such as the State "involves a search for a unifying principle-to identify the cause of the accident . . . and to ask if that identified cause or condition is one that the Legislature intended to immunize." Id. at 380. As a result, we must begin our analysis by determining whether an immunity applies to the set of facts presented, not whether an immunity applies to defeat the particular theory of ...