ALBERT WOOD and KATHLEEN DORAN, his wife, Plaintiffs-Appellants,
TOWNSHIP OF WALL; TOWNSHIP OF WALL DEPARTMENT OF PUBLIC WORKS; STATE OF NEW JERSEY; GLENN GERKEN, P.E. and THE EARLE COMPANIES, Defendants-Respondents, and CMX, INC., Defendant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1777-10.
Sophia M. Shalaby argued the cause for appellants (Hobbie, Corrigan & Bertucio, attorneys; David P. Corrigan, of counsel; Mr. Corrigan and Ms. Shalaby, on the brief).
Paul W. Mackey argued the cause for respondents Township of Wall and State of New Jersey (Amdur, Maggs & Shor, P.C., attorneys; Richard A. Amdur, on the brief).
Renard E. Barnes argued the cause for respondent Glenn Gerken, P.E. (Law Offices of Joseph Carolan, attorneys; Mr. Barnes and George H. Sly, Jr., on the brief).
Adrian K. Cousens argued the cause for respondent The Earle Companies (Leary, Bride, Tinker & Moran, attorneys; Mr. Cousens, of counsel and on the brief).
Before Judges Messano and Rothstadt.
On June 16, 2008, plaintiff Albert Wood sustained serious injuries while riding a scooter on the Manasquan Bike Trail (the trail) in the Township of Wall. Plaintiff and his wife, Kathleen Doran, filed suit against the township and its Department of Public Works (collectively, Wall); the State of New Jersey (the State); Glen Gerken, P.E.; CMX, Inc., (formerly Schoor DePalma) (CMX); and the Earle Companies, also known as Earle Asphalt Company (Earle). Plaintiff alleged that Wall was negligent in its maintenance, supervision and control of the trail, thereby creating a dangerous condition. Plaintiff further alleged that Gerken, CMX and Earl failed to design and construct the trail in a reasonably safe manner.
The Law Division judge granted Wall and Gerken summary judgment on July 30, 2012, and, on August 20, 2012, the judge granted summary judgment to Earle. Plaintiff's motion for reconsideration was subsequently denied, and this appeal followed.
Plaintiff argues that the judge misapplied various provisions of the Tort Claims Act (TCA) N.J.S.A. 59:1-1 to 12-3, in particular, N.J.S.A. 59:4-2(a) and (b), governing dangerous conditions on public property; N.J.S.A. 59:4-5, which provides a public entity with immunity "for an injury caused by the failure to provide ordinary traffic signals, signs, markings, or other similar devices"; and N.J.S.A. 59:4-6(a), so-called plan or design immunity.
We have considered plaintiff's arguments in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
The motion record revealed that plaintiff retained an engineer, William Poznak, P.E., L.S., who inspected the trail and furnished a report. Poznak found that at the point where plaintiff fell, the trail had a "maximum downward slope of about twenty . . . percent, which is quite steep." There were "no signs present, or any type of warning, to alert persons of this steeply graded section of bikeway." Poznak cited the National Recreation and Park Association's "Park Planning Guidelines, " which stated that "[b]icycle gradients should not exceed eight percent and pitches from four to eight percent should occur for short intervals only." Those standards further provided that when "grades of over five percent are unavoidable, it is well advised to provide a level area and a slightly wider path on the grade or at the top of the slope where the inexperienced cyclist can pull over to the side and dismount." Poznak concluded that the slope of the bike trail was an "unsafe condition, " constructed and maintained "contrary to . . . general safety practices and rules prevailing in the industry."
The record in support of the summary judgment motions filed by Wall and Gerken revealed that the trail was constructed on land owned by the State Department of Transportation (DOT). By way of agreement entered into on August 15, 2006, Wall was permitted to construct the trail, while the State retained ownership of the land, subject to Wall's obligations to maintain and repair the trail as necessary. Robert Hendrickson, Wall's acting director of public works, testified at deposition that the trail was "built on the ground that was there, the natural ground that was there. They didn't do a lot of cutting like they would with a road. It follows the contours of the earth."
Gerken designed the trail. Gerken's certification described the permit process, which necessitated approvals by the State Department of Environmental Protection because "[t]he [p]roject contemplated an impact to wetlands, wetland transition areas, and stream crossings . . . ." Gerken stated that after various meetings, "it was agreed that the . . . [trail] would be constructed primarily at the existing grades with the exception of three . . . locations where elevated stream crossings were required." According to Gerken:
[I]t was more feasible to allow the path to follow the contours of the existing topography to be able to meet the desired design criteria of: mitigating excessive clearing of large trees; minimizing disturbance to wetlands and wetlands transition areas; minimizing impact at stream crossings, and mitigating excavation (cutting) and earthwork (filling) along the path to preserve the area's natural features, as much as possible.
Gerken also certified that the hill on which the accident occurred "has a slope that is greater than [five percent] and a distance of less than 100 feet." He further stated:
Grades greater than [five percent] are undesirable; however, the guidelines do not provide an absolute maximum slope which should never be exceeded in any circumstance. Where the terrain dictates, grades over [five percent] and less than 500 feet long are acceptable where higher design speeds are used and additional width is provided. The desired width of a bike path should be [ten] feet. Our path consists of a [ten] foot paved surface with [four] feet of stone/gravel at the ...