On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5901-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically March 14, 2011
Before Judges R. B. Coleman and Lihotz.
Plaintiff Anthony Schanz, who sustained serious injuries as a result of a one-car accident at a Y-shaped intersection located in defendant Township of Winslow, appeals from orders of the Law Division granting summary judgment in favor of defendant and denying plaintiff's motion for reconsideration. In general, plaintiff contends the intersection was a trap for the unfamiliar or unwary driver, that it constituted a dangerous condition of public property under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and that it was palpably unreasonable for Winslow Township not to have posted additional warning signs, reduced the speed limit or installed rumble strips, as suggested by plaintiff's expert witness.
Defendant counters that there was no dangerous condition within the meaning of N.J.S.A. 59:4-2 and that in addition to the general rule of immunity under the Tort Claims Act, the specific immunity related to ordinary traffic signals applies. In fact, there is a large yellow sign with arrows at the intersection informing drivers of the need to turn left or right. Alternatively, defendant maintains that even if plaintiff could establish that a dangerous condition exists at the intersection, there was no basis for the court to conclude that defendant was palpably unreasonable in not taking one of the steps suggested by plaintiff's expert or some other step to further alert drivers of the Y-shaped intersection.
Based on our review of the record and the arguments asserted by the parties and the applicable law, we affirm the orders of the Law Division granting summary judgment in favor of defendant and denying plaintiff's motion for reconsideration.
On November 25, 2006, at approximately 3:00 a.m., plaintiff left a friend's house in Winslow Township in his 1992 Chevrolet Lumina after he had consumed five beers over the course of the evening. Plaintiff last remembers driving on Herbert Boulevard when he approached a Y-shaped intersection. Making a left turn at that juncture, places a driver on Johnson Road, while a right turn places a driver on Zoe Lane. Photographs of the intersection reveal there is a large yellow directional sign at the fork warning motorists that they must turn right or left. Although plaintiff does not specifically remember the collision, he failed to turn in either direction and his automobile continued straight through the intersection and crashed into a tree in the front yard of a residence on Johnson Road.
In his accident report, the responding police officer wrote "it is my belief based on the evidence at the scene and my investigation that the apparent contributing circumstance was driver inattention." The officer concluded that plaintiff "failed to negotiate the left hand bend in the roadway" as he approached the intersection.
At his deposition, plaintiff insisted he did not fall asleep at the wheel prior to the accident; however, the EMS technician who responded to the scene stated in his report that plaintiff "reports he thinks he fell asleep at the wheel and struck a tree which woke him up." Further, the responding officer visited plaintiff in the hospital two days after the accident and reported that plaintiff told him "he had just come from a friend's house . . . and was very tired. He remembers turning from Prosser Street onto Herbert Boulevard, however does not recall where/when he fell asleep." Finally, in the "description of accident" box on his December 17, 2006 application for PIP benefits, plaintiff wrote "I fell asleep at the wheel and struck a tree." Plaintiff denied the handwriting on the application was his, but acknowledged that his signature appeared on the back. Viewing the evidence in the light most favorable to plaintiff, we decline to conclude that he fell asleep, but it is undisputed that he failed to negotiate the turn at the intersection.
Edward J. McGlinchey, defendant's public works manager, zoning officer and safety coordinator, gave deposition testimony about the history of the intersection at which plaintiff's accident occurred. Since he first became public works manager in about 1968-69, the intersection had not changed in shape or configuration. The roadways at the intersection do not appear on defendant's master plan. The roadways had once been paved with oil and stone but were repaved with blacktop about ten to thirteen years prior. No grading changes were made to the roadways when the blacktop was laid. McGlinchey testified that defendant never approved the design of the intersection, created plans for the construction of the intersection or conducted any engineering studies concerning the intersection.
There is some dispute regarding the number of prior accidents that occurred at the intersection. McGlinchey vaguely remembered an automobile accident at the intersection ten to thirteen years prior to his deposition. He could not remember any others. Plaintiff testified in his deposition that his father spoke with the owner of the house on Johnson Road at which the accident occurred and the owner informed plaintiff's father that plaintiff's accident was not the first to have occurred at the intersection and that he had installed metal posts to stop people from driving onto his property.
The record on the motion for summary judgment contained reports of two weather-related accidents at the subject intersection. According to a March 25, 2006 police report, a driver lost control of his automobile and crashed into a yard wall as he was making a right turn from Johnson Road onto Herbert Boulevard. The report noted that it was raining and the roadways were wet at the time of the accident. According to a February 4, 2004 police report, a driver lost control of his automobile when he slid on an ice patch and crashed into a light post as he was making a right turn from Johnson Road onto Herbert Boulevard.
Plaintiff also obtained a computer printout from the Winslow Township Police Department that listed twenty other accidents that occurred at or near the intersection between January 1, 1986 and January 28, 2009. According to Sergeant Richard Ostermueller of the police department, the computer system required the records clerk to input the nearest intersecting roadway from where the accident occurred. Thus, the accidents on the computer printout did not necessarily occur at the intersection. Rather, they may have occurred either on Herbert Boulevard at a location where Johnson Road was the nearest intersecting roadway, or on Johnson Road where Herbert Boulevard was the nearest intersecting roadway. Further, in ten of the twenty listed accidents, citations were issued for careless driving or failure to maintain a driving lane.
In granting defendant's motion for summary judgment, the motion judge relied on Kolitch v. Lindedahl, 100 N.J. 485 (1985), a similar case in which plaintiffs' alleged certain features of the roadway at an accident site constituted a dangerous condition under the Tort Claims Act. Here, the judge noted that though it was a "somewhat subjective evaluation," the intersection in Kolitch "sounds like it was more dangerous" than the intersection in the present case. The judge observed that "the amount of accidents that's happening both within one mile of the accident in Kolitch and right at the scene was enormous. Hard to imagine anything worse." The judge further stated that in Kolitch "the Supreme Court determined . . . there was no municipal liability and . . . cite[d] [N.J.S.A.] 59:4-5 and [N.J.S.A.] 59:4-4. And it seems to me that the Court, of course, is bound by that."
Finally, the judge concluded that it's not incumbent on the [c]court to try to find some reason to try to extract this case from the Tort Claims Act provisions. The legislature obviously passed the Tort Claims Act to limit municipal liability, not to encourage judges to try to find a way to give plaintiffs their day in court.
The judge denied plaintiff's motion for reconsideration without oral argument, noting that [t]here was a very substantial oral argument on [the summary judgment] motion a couple of motion cycles ago. I think . . . everybody had a chance to air out their arguments and a decision was made, which I don't think, in hindsight, was "palpably unreasonable," nor do I think I overlooked any relevant cases nor are there any new facts or new cases that have come down the pike.
Plaintiff appealed the orders granting summary judgment in favor of defendant and denying his motion for reconsideration.
The standard of review is well established. Pursuant to Rule 4:46-2, summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits 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." In determining whether a genuine issue of fact exists on the record, a judge must decide whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party. . . . If there exists a single, unavoidable resolution of the alleged disputed ...