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James G. Griffin, Sr. and Maryann L. Griffin, As Guardians of James G. v. Marcie G. Zage

January 13, 2012

JAMES G. GRIFFIN, SR. AND MARYANN L. GRIFFIN, AS GUARDIANS OF JAMES G. GRIFFIN, JR. AND JAMES G. GRIFFIN, SR. AND MARYANN L. GRIFFIN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, AND THE UPS FLEXIBLE BENEFITS PLAN, PLAINTIFF/INTERVENOR-APPELLANT,
v.
MARCIE G. ZAGE, JEFFREY P. ZAGE, AND BOROUGH OF OAKLAND, DEFENDANTS, AND COUNTY OF BERGEN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8790-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 13, 2011

Before Judges Payne, Reisner and Simonelli.

James Griffin, Jr. suffered severe injuries as the result of a motor vehicle accident on September 15, 2006, that rendered him incapacitated and unable to recall how the accident occurred. His parents, plaintiffs James Griffin, Sr. and Maryann Griffin, filed a complaint as his guardians and individually against defendants Borough of Oakland (Borough) and County of Bergen (County), alleging that the manner in which they designed, constructed and maintained the roadway where the accident occurred created a dangerous condition----a large pool of water----which was a proximate cause of the accident and Griffin's injuries.*fn1 The UPS Flexible Benefits Plan (UPS) intervened in the matter to recover the medical benefits it paid to or on behalf of Griffin.*fn2

By order dated May 12, 2010, the trial judge granted summary judgment to the County and dismissed the complaint with prejudice.*fn3 The judge concluded that plaintiffs failed to demonstrate through competent evidence that a dangerous condition existed on the roadway on the day of the accident and caused the accident. In these consolidated appeals, plaintiffs and UPS appeal from the May 12, 2010 order, and from the order entered on June 25, 2010, which denied their joint motion for reconsideration. We reverse.

The accident occurred on Breakneck Road in Oakland. Breakneck Road is a two-lane county road that runs north and south from Longhill Road in Oakland and becomes Berdan Avenue at the Township of Wayne border. The lanes are divided by a double yellow line.

There is evidence of a water drainage problem on Breakneck

Road. For example, the Borough's 1982 Design Report on Longhill and Breakneck Roads indicates that Breakneck Road has "intermittent closed systems" for drainage; however, "most of these small systems appeared inoperable, (i.e. silted basins, plugged pipes, etc.), effectively leaving Breakneck Road to drain overland." In 1987, G.T.,*fn4 who then owned the property located at 134 Breakneck Road, complained to the County about water collecting on the roadway in front of his home. As a result of that complaint, the County became aware there was a wet weather accident problem in the area of the property caused by water and ice developing on the roadway, which was apparently caused by clogged catch basins on the east side of the roadway.

In 2001, W.V., who owned the property located at 146 Breakneck Road, complained to the County about a clogged storm drain opposite his property. County workers who responded to the complaint noted that this was a "bad location" on the roadway, and that when they tried to clean the drain they noticed the pipe was broken. Also in 2001, the County said it would inspect the area of 134 to 146 Breakneck Road in heavy rain to determine if flooding occurred; however, there is no evidence that this inspection occurred.

C

In 2004, the County received two complaints about water conditions at 134 Breakneck Road, one about two clogged catch basins "filled to [the] top with water[,]" and the other about a berm in need of repair. On July 24, 2006, W.V. again complained to the County that the basins between his property and 134 Breakneck Road were not taking water. Although an inspection revealed that the catch basins were filled with debris and had to be cleaned and flushed, no repairs were made until September 27, 2006.

The accident occurred at approximately 2:00 p.m. on September 15, 2006. A meteorological expert reported that approximately 1.40 to 1.50 inches of rain fell in the Oakland area between 2:00 to 3:00 a.m. on September 14, 2006, and 2:00 p.m. on September 15, 2006. The expert concluded that ground surfaces were wet from the ongoing rain, and this significant rainfall "would have been enough to cause some minor road flooding including ponding and pooling of water in poorly drained areas."

Griffin was driving his vehicle north on Breakneck Road. As he approached 134 Breakneck Road, he lost control of his vehicle, crossed over the double yellow line, and collided with a 1999 Toyota Land Cruiser driven by defendant Marcie Zage in the southbound lane near 126 Breakneck Road, which was approximately one-hundred and fifty feet from where Griffin lost control of his vehicle. The vehicles came to rest near the driveway of 126 Breakneck Road.

An eyewitness, Susan O'Grady Lister, said that she was traveling two to four car lengths behind Griffin's vehicle for five to ten minutes prior to the accident, Griffin operated his vehicle in a normal manner, and he was traveling at approximately thirty to thirty-five miles per hour.*fn5 Lister did not recall anything unusual about Griffin's driving until "he made an extremely fast winding kind of turn[,]" "an abrupt left turn." He "almost seemed out of control[,]" and she thought "something happened to him, like a heart attack." She did not recall whether Griffin's brake lights came on before he made the turn, or whether his vehicle slid in any direction or swerved. She also could not pinpoint the spot where the collision occurred, but recalled that the two vehicles involved came to rest by a driveway. Although she did not see anything in the road or anything about the condition of the ...


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