December 21, 2011
LETTITIA JACKSON, INDIVIDUALLY, AS A PARENT AND NATURAL GUARDIAN OF QAADIR JACKSON, A MINOR, AND AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF WAYNE M. JACKSON, DECEDENT, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY; STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION; JACK LETTIERE; AND JAMES WEINSTEIN, DEFENDANTS-RESPONDENTS, AND SAUL A. FRIEDMAN; HILLVIEW SHOPPING CENTER, L.L.C.; LEND LEASE REAL ESTATE INVESTMENT, INC.; HILLVIEW CH, L.L.C.; THE RUBIN ORGANIZATION, INC. AND HILLVIEW RETAIL CENTER, DEFENDANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 liability asserted by the plaintiff. Kyriakos v. State, Dep't of Human Servs., 216 N.J. Super. 308, 311 (App. Div.), certif. denied, 108 N.J. 182 (1987).
We turn first to N.J.S.A. 59:4-5, which provides that a public entity is not liable: for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices. [N.J.S.A. 59:4-5.]
We must decide whether the trial judge was correct when he concluded that the immunity provided in N.J.S.A. 59:4-5 applies to the State's failure to provide a pedestrian bridge across Route 38 near the Cherry Hill Mall. The statutory immunity contained in N.J.S.A. 59:4-5 applies to a public entity's failure to provide or install "traffic control devices, including signs and roadway markers," Pandya v. State, Dep't of Transp., 375 N.J. Super. 353, 368 (App. Div. 2005), although in Pandya we ultimately reversed the grant of summary judgment, concluding that the plaintiff's expert engineer's opinion that the roadway in question suffered from "'insufficient or improper configuration'" did not fall within the immunity provisions of N.J.S.A. 59:4-5. Id. at 371 (alteration in original). As a result, it was error to grant summary judgment to the State on the ground of N.J.S.A. 59:4-5 immunity. Ibid.
Plaintiff's claim here is confined to an assertion that Route 38 was in a dangerous condition because it did not have a pedestrian overpass. Plaintiff does not assert that the roadway was dangerous because of the State's failure to provide traffic signals, signs, [or] markings[.]" N.J.S.A. 59:4-5. We must therefore decide whether a pedestrian overpass is a "similar device" within the meaning of N.J.S.A. 59:4-5. We recognize that the immunities conferred by the Act must not be applied in so stingy a fashion as to defeat the very immunity that the Legislature intended when it adopted the Act. Pico v. State, 116 N.J. 55, 59 (1989). See also N.J.S.A. 59:2-1(a) (providing that "[e]xcept 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").
Nonetheless, in construing the statute, we must not impart to the Legislature's words a meaning the Legislature never intended. "Our task in statutory interpretation is to determine and effectuate the Legislature's intent." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009). In determining legislative intent, we remain mindful of the command of N.J.S.A. 1:1-1, which requires us, when construing a statute, to give words and phrases "their generally accepted meaning" unless doing so is plainly "inconsistent with the manifest intent of the [L]egislature or unless another or different meaning is expressly indicated[.]" As a result, we must "'look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen.'" In re Trenton Ordinance 09-02, 201 N.J. 349, 358-59 (2010) (quoting Bosland, supra, 197 N.J. at 553).
Applying those standards, we are satisfied the motion judge erred when he concluded that the failure to provide a pedestrian overpass was akin to a failure to provide "ordinary" traffic control devices such as traffic lights, signs, roadway markings or blinking lights. We reach that conclusion for two reasons. First, a pedestrian overpass is not a "device." N.J.S.A. 59:4-5. Second, unlike "traffic signals, signs, [or] markings," ibid., all of which are directed at motorists, a pedestrian overpass has no bearing on the safety of a motorist or the ways in which the motorist would navigate a roadway, but is instead designed for the safety and security of a pedestrian. For both of those reasons, we conclude that a pedestrian overpass is not an example of the "other similar devices," ibid., that the Legislature had in mind when it adopted N.J.S.A. 59:4-5.
None of the cases cited by the State cause us to reach a different result. Hoy v. Capelli, 48 N.J. 81, 83 (1966), involved a public entity's failure to replace a broken traffic signal that the municipality had removed and not replaced prior to the accident, which occurred while the intersection was uncontrolled. Unquestionably, Hoy involved the failure to replace a traffic signal, for which N.J.S.A. 59:4-5 expressly provides immunity. That is not the case here.
The State's reliance on Weiss, supra, 128 N.J. at 379, suffers from the same infirmity. There, the plaintiff's decedent was killed when her car was struck by a train at a railroad crossing where the State's planned installation of a traffic signal had been delayed for eight years prior to the accident in question. In Weiss, as in Hoy, immunity was conferred because it was based upon one of the expressly- enumerated items contained in the statute, namely, an "ordinary traffic signal".
The State also relies on Aebi v. Monmouth County Highway Department, 148 N.J. Super. 430, 433-34 (App. Div. 1977), which involved the State's failure to provide signs warning motorists that a bridge was smaller than the road leading up to it. There, we held that immunity was available under N.J.S.A. 59:4-5 because the claim involved a failure to provide a traffic sign, for which the statute expressly provides immunity. Id. at 433. Unlike the acts involved in Hoy, Weiss and Aebi, the failure to provide a pedestrian overpass is not an omission that falls within the purview of N.J.S.A. 59:4-5.
For all of these reasons, we part company with the motion judge's determination that N.J.S.A. 59:4-5 afforded immunity to the State for its failure to provide a pedestrian overpass.
We reach a different result, however, concerning the judge's determination that the State was entitled to summary judgment under N.J.S.A. 59:2-3(c) or (d) for the exercise of its discretion concerning whether to seek additional resources for transportation projects, and how to allocate its existing resources for such projects.
N.J.S.A. 59:2-3(c) provides immunity to public entities in connection with the exercise of their discretion in determining whether to provide the resources necessary for adequate governmental services. Lopez v. City of Elizabeth, 245 N.J. Super. 153, 157-58 (App. Div. 1991). The subsection in question provides:
c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the . . . construction or maintenance of facilities, . . . and, in general, the provision of adequate governmental services[.] [N.J.S.A. 59:2-3(c).]
The record establishes that the Director of Local Aid & Economic Development in the New Jersey Department of Transportation, David A. Kuhn, considered and rejected a proposal to construct a pedestrian overpass across Route 38. In explaining to the then-Mayor of Cherry Hill, Bernard Platt, why he was unable to grant Mayor Platt's request for immediate funding of the overpass project, Director Kuhn wrote:
The T[ransportation] E[nhancement] Program continues to be very popular and increasingly competitive. As a result, we regret that we are unable to fund many worthwhile projects each year. This year's solicitation generated 251 applications totaling over $130 million in requests for approximately $10 million in available funding.
Unfortunately, while 30 projects were selected to receive funding, your project, NJ Route 38 Pedestrian Overpass, was not among those chosen.
Director Kuhn's August 4, 2003 letter demonstrates that there were limited resources available to fund such projects, and only some projects were selected, while others were rejected. We agree with the motion judge's determination that plaintiff failed to raise a genuine issue of material fact on the immunity available to the State under N.J.S.A. 59:2-3(c) for the discretion the State exercised in "the provision of adequate governmental services." N.J.S.A. 59:2-3(c).
We also agree with the judge's determination that the State was entitled to immunity under N.J.S.A. 59:2-3(d), which provides:
d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. [N.J.S.A. 59:2-3(d).]
As is evident, N.J.S.A. 59:2-3(d) grants immunity for "discretionary operational or less than high-level planning decisions made by a public employee charged with a duty to exercise more than a ministerial function[.]" Longo v. Santoro, 195 N.J. Super. 507, 518 (App. Div.), certif. denied, 99 N.J. 210 (1984). Subsection (d) provides immunity for operational acts such as the exercise of discretion when in the face of competing demands, a public entity determines whether and how to apply its resources. Ibid.
In Lopez, supra, 245 N.J. Super. at 158, we discussed the differences between subsection (c) and subsection (d) immunity, observing:
The former [subsection (c)] typically involves decisions whether or not to hire people or procure material or equipment. Such decisions are made at a relatively high level of government and have traditionally been free of tort liability. The latter are lower level operational decisions how to deploy resources that are on hand.
Subsection (d) of N.J.S.A. 59:2-3 uses the term "palpably unreasonable," which means that for immunity to be defeated, "it must be manifest and obvious that no prudent person would approve of [the] course of action or inaction [chosen by the public entity]." Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009) (citation omitted).
Here, as Director Kuhn's letter demonstrates, the State exercised its judgment and discretion in deciding, operationally, how to allocate or deploy its existing resources to fund and complete various transportation projects. Plaintiff's arguments to the contrary notwithstanding, there is nothing about the manner in which the State exercised its operational judgment in the allocation of its limited resources among the hundreds of competing transportation projects that demonstrates that the decision was made in the "palpably unreasonable" fashion that defeats immunity under N.J.S.A. 59:2-3(d). Plaintiff has not raised a genuine issue of material fact on the question of whether the decision made by Director Kuhn was "palpably unreasonable" such that it would be "manifest and obvious that no prudent person" would have reached a similar decision. Ogborne, supra, 197 N.J. at 459. For these reasons, we affirm the motion judge's determination that the State was entitled to immunity under N.J.S.A. 59:2-3(d).
We turn next to the final section of the Act upon which the motion judge relied when he granted summary judgment to the State, N.J.S.A. 59:4-2. We address this subject only briefly, as our determination that the State was immune from suit pursuant to N.J.S.A. 59:2-3(c) and (d) trumps any potential liability arising from a different section of the Act. Pico, supra, 116 N.J. at 59. Nonetheless, for the sake of complete appellate review, we will analyze plaintiff's argument that because the roadway was in a dangerous condition at the time in question, the motion judge erred in rejecting her claim that the State was liable under N.J.S.A. 59:4-2. That statute provides:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, 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.
Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable. [N.J.S.A. 59:4-2.]
For the reasons we shall explain below, we agree with the State's argument, and the judge's conclusion, that the roadway was not in a dangerous condition at the time of the injury, and that the injury, or death, of plaintiff's sons was caused solely by their own lack of due care, and not by any purportedly dangerous condition of the roadway.
Plaintiff bears the burden of establishing that a "dangerous condition" existed. Levin v. Cnty. of Salem, 133 N.J. 35, 44 (1993). We begin by noting that plaintiff fails to identify any caselaw supporting her contention that the absence of a bridge or pedestrian overpass constitutes a physical defect in the roadway. When analyzing whether a "dangerous condition" exists, our focus must be confined to "the physical condition of the property itself," and not to any appurtenance or improvement that the public entity could have added had it chosen to do so. Ibid.
In Levin, the public entity owned a bridge over shallow water and was aware that people dove off the bridge into the water. Id. at 37-39. The Court found that there was no physical defect in the bridge and that the shallowness of the water below did not constitute a physical defect. Id. at 49-50. In the absence of a physical defect, the Court held that the public entity was not required to take measures to protect against the danger, such as constructing a fence to keep people from diving off the bridge. Id. at 43, 49-50. So too here. In the absence of a physical defect in the roadway itself, the absence of an overpass cannot form the basis for a finding of a dangerous condition within the meaning of N.J.S.A. 59:4-2.
We reached a similar result in Sharra v. City of Atlantic City, 199 N.J. Super. 535, 542 (App. Div. 1985), when we held that the public entity was immune from liability under N.J.S.A. 59:4-2 because the roadway was not in a dangerous condition. The plaintiff was riding his bicycle on the boardwalk, at a time when it was crowded with other bicyclists. Id. at 538. Another rider raced into the plaintiff and struck him. Ibid. Reasoning that there was no physical defect in the boardwalk that caused the accident, and that the accident was caused solely by a third, unknown party, we held that no physical defect of the property was involved in the accident. Id. at 541-42. We held that danger due to activities on the property does not suffice to create a dangerous condition within the meaning of N.J.S.A. 59:4-2. Ibid.
Moreover, we agree with the judge's determination that because Route 38 did not create a substantial risk of injury when used with due care, Route 38 could not be deemed to be in a dangerous condition within the means of N.J.S.A. 59:4-2. The Act defines a dangerous condition of property as one 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." N.J.S.A. 59:4-1(a). To survive a public entity's motion for summary judgment, a plaintiff must demonstrate that the danger existed even when the property in question is used with due care. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 125-26 (2001).
In Vincitore, the Supreme Court established a two-part test to be applied when analyzing the "due care" component of N.J.S.A. 59:4-1(a). Id. at 126. The first prong considers "whether the property poses a danger to the general public when used in the normal, foreseeable manner." Ibid. The second prong addresses whether the nature of the plaintiff's activity was so "objectively unreasonable that the condition of the property cannot reasonably be said to have caused the injury." Ibid. (internal quotation marks omitted). The greater the risk of harm, the greater the care that is expected to be exercised by the injured party. King v. Brown, 221 N.J. Super. 270, 276 (App. Div. 1987).
Here, the children's decision to cross a busy six-lane highway at a location not controlled by a traffic light was objectively unreasonable. The accident was tragic. Nonetheless, nothing prevented the children from walking to either the Haddonfield Road or Hillside Drive intersections or not crossing Route 38 at all. While the record supports the observation of plaintiff's expert that the level of vehicular traffic on Route 38 was generally high, we cannot ignore the fact that the roadway contained a medial barrier and that two safe alternative means of crossing the roadway were available. No reasonable jury could conclude that the children's decision to vault the medial barrier in the face of oncoming traffic, in the dark of night, was consistent with the exercise of due care.
For these reasons, we agree with the motion judge's determination that Route 38 was not in a dangerous condition, that the children did not exercise due care, and that plaintiff failed to raise a genuine issue of material fact on the question of whether Route 38 was in a dangerous condition within the meaning of N.J.S.A. 59:4-2.
We address plaintiff's remaining contention: the judge violated the Brill standard by making factual determinations that should have been made by a jury, and by failing to resolve disputed issues of fact in plaintiff's favor. See Brill, supra, 142 N.J. at 540. This contention lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).