Costa v. JoseyCosta v. Josey
Shortly after midnight on November 11, 1974 Edward J. Flocco, Jr., owner and operator of an automobile, and his wife Phyllis, a passenger in the car, while proceeding in a westerly direction on State Highway 4 in the vicinity of the Webster Avenue bridge in Teaneck, were killed as the result of a collision with an automobile driven by one Albert J. Josey that had come over from the opposite side of the highway.
At said time and place Route 4 was a four-lane highway having two lanes and a shoulder for each direction, east and west. Opposing traffic lanes were separated by a concrete barrier about 15 inches high, 6 inches wide at the top and about 24 inches wide at the base. The face of each side was concave.
Josey had been proceeding in an easterly direction on the eastbound side of Route 4 in the outside or slower lane, at
Bookspan‘s version given to the police was that he first saw the Josey car with sparks being emitted underneath the front of the vehicle at the driver‘s seat. The car at this time was astride the line dividing the “fast and slow” lanes in the eastbound side. He then saw the car through his rear-view mirror climb up over the divider and it “actually flew in the air over the fast lane in the westbound lanes.” It struck the Flocco car in the left front.
The investigating police officers recorded that the weather was clear and dry; that physical evidence found at the scene revealed that the front left bumper of Josey‘s automobile struck the divider on the eastbound side, leaving tire marks for 30 feet on the divider. It then straddled the divider for approximately 50 feet before going over to the westbound side of the highway, and then scraped the west side of the divider for approximately 30 feet while heading east. It continued east for 64 feet into the right lane of the westbound side of the highway, where it struck the Flocco car, forcing the latter backward about 120 feet “into the bridge [abutment?].” The Josey vehicle finally came to rest about 100 feet east of the bridge in the left, westbound lane.
Plaintiff Joseph Costa, as general administrator and administrator ad prosequendum of the respective estates of Mr. and Mrs. Flocco, after compliance with the notice provisions of the New Jersey Tort Claims Act,
Josey failed to respond to the action and a default was entered against him. The State duly answered and cross-claimed for contribution. After the parties were afforded full discovery the State successfully moved for summary judgment on the ground that it was immune from liability for the conduct attributed to it as a basis of liability to plaintiff. Plaintiff then appealed.
Plaintiff‘s claim that the State is liable is essentially posited upon a claim of the latter‘s negligence in relation to the barrier or divider which separated the opposing lanes of traffic.
Route 4 was constructed in the early 1930s with a reinforced concrete surface. In 1955 the State Highway Engineer and the State Highway Commissioner (then Dwight R.G. Palmer) approved plans for construction of a 19-inch concrete center divider on Route 4 in the Township of Teaneck. In 1956 the divider was constructed in accordance with the plans.
According to defendant, the divider when installed in 1956 was 19 inches high and included a 4-inch base with vertical facing which provided for future resurfacing of the adjacent road surface during the useful life of the divider. The vertical facing also acted to provide some warning to alert drivers who inadvertently contacted it at a slight angle. In 1962 the Department made the decision to resurface 1.098 miles of Route 4 in Teaneck. A design was created and plans were approved by the State Highway Engineer and the State Highway Commissioner. The resurfacing was accomplished according to the approved plans. Specifically, the resurfacing project placed 2 1/2 inches of fine aggregate bituminous concrete on the concrete surface in the area which became the scene of the recited accident. This application reduced the 4-inch divider base to approximately 1 to 1 1/2 inches of vertical facing.
The trial judge, in entering summary judgment for defendant, determined that there was no genuine issue as to any material fact,
Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, either in its original construction or any improvement thereto, where such plan or design has been approved in advance of the construction or improvement by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.
Plaintiff‘s first line of attack upon the effect of this statute does not rest upon a claim of lack of immunity of the original construction. Rather, he contends, an issue of fact was raised as to whether the four-inch base was designed for future resurfacings or was designed as a permanent safety factor built into the divider. For this he relies on his engineering expert‘s opinion that the successive repavement of the roadway was negligent in eliminating “the vertical curb at the bottom of the barrier and reducing the overall height of the barrier” and thus facilitating “the elevating action at the bottom of the curved sides of the barrier.”2 He also cites the deposition of defendant‘s expert, Kuperstein, who acknowledged that the four-inch vertical base was, in fact, designed to prevent “vaulting,” and who later stated that its primary purpose was to provide an area for future resurfacing.
Plaintiff suggests that the resurfacing activities were merely acts of maintenance which were not discretionary in nature and were therefore not insulated as a basis of the State‘s liability under
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.
We do not agree that
In relying upon
* * * [T]he public policy of this State [is] that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carry out the above legislative declaration. [
N.J.S.A. 59:1-2 ]* * * * * * * *
a. Except as otherwise provided by this act, 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 act 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 ]4
As we interpreted the Tort Claims Act in McGowan v. Eatontown, 151 N.J. Super. 440, 448 (App. Div. 1977) and Wuethrich v. Delia, 155 N.J. Super. 324, 326 (App. Div. 1978), the sections of the act which authorize recovery against a public entity are subject to the general immunity conferred therein. The Legislative Comment to
* * * * * * * *
Subsection (b) is intended to insure that any immunity provisions provided in the act or by common law will prevail over the liability provisions. It is anticipated that the Courts will realistically interpret both the statutory and common law immunities in order to effectuate their intended scope. [Emphasis supplied]
This section is intended to grant a public entity and a public employee complete immunity for injuries resulting from a plan or design of public property when it has been officially approved by an authorized body. This broad immunity is prompted by the fact that approval of plans or designs is peculiarly a function of the executive or legislative branch of government and is an example of the type of highly discretionary governmental activity which the courts have recognized should not be subject to the threat of tort liability. See Fitzgerald v. Palmer, 47 N.J. 106, 110, 219 A.2d 512 (1966); Hughes v. County of Burlington, 99 N.J. Super. 405, 240 A.2d 177 (App. Div. 1968). In addition, this particular area of governmental activity provides a very broad and extensive amount of exposure to liability against which the State would have difficulty providing economical and adequate protection. This immunity is similar to the immunity provided by judicial decision in the State of New York, see Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960) and by legislation in the State of California.
Cal. Gov‘t Code, § 830.6 .
Plaintiff also urges that in any event the decision to resurface was ministerial and therefore not immune under
This thesis is partly answered adversely to plaintiff by what we have already stated concerning the resurfacing as being part of either the original planning or as an independent plan and design subsequently made. The differences between discretionary activities and ministerial activities may not always be clearly apparent. See Czyzewski v. Schwartz, 110 N.J. Super. 255, 260 (App. Div. 1970).
The dichotomy between discretionary and ministerial acts generally depends on whether the decision is a high-level
Two recent cases furnish much light on the instant issue as well as the controversy in general: McGowan v. Eatontown, supra, and Cobb v. Waddington, 154 N.J. Super. 11 (App. Div. 1977). McGowan demonstrates the type of negligent maintenance of a highway which is not immunized from liability. The court held that the State might be liable for its negligent failure to ameliorate a hazardous accumulation of ice which resulted from a pool of water combined with freezing temperatures. It was carefully noted that:
* * * [P]laintiff does not claim negligent plan or design of the section of the highway where the accident occurred either by way of original construction or improvements. Specific immunity as conferred by the statute would defeat such a claim. [151 N.J. Super. at 446-447]
In Cobb v. Waddington, supra, the court sustained a summary judgment entered in favor of the State and its highway contractor where plaintiff sought damages of the State and the contractor for injuries sustained by him when his automobile was forced off the roadway by an unidentified motor vehicle into collision with traffic-channelization barricades. The court found that the selection of the type of barricades and their configuration on the highway reflected the exercise of judgment and discretion of a public entity within the sense of
So in the case at bar and apart from the question of plan or design, the matters of resurfacing, when, where
* * * [W]hether a road should have four or six or eight lanes, or there should be dividers, or circles or jughandles for turns, or traffic lights, or traffic policemen, or a speed limit of 50 or 60 miles per hour — such matters involve discretion and revenue and are committed to the judgment of the legislative and executive branches. As to such matters, the question is whether a judge or jury could review the policy or political decisions involved without in effect taking over the responsibility and power of those branches. [47 N.J. at 109-110]
See also, Aebi v. Monmouth Cty. Highway Dept., 148 N.J. Super. 430 (App. Div. 1977).
Plaintiff also suggests that
* * * Although a jury verdict is to be highly regarded, it is neither sacrosanct nor preferable to the judgment of an expert public planning body. For this reason, liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis. [200 N.Y.S.2d at 415, 167 N.E.2d at 68]
Notwithstanding this utterance by that court in what is considered as one of the outstanding expositions of law on the subject of sovereign immunity, we must reject the concept mentioned by it insofar as our act is concerned. A fair reading of the Tort Claims Act leaves no room for such interpretation. As stated in the above quotation from the Legislative Comment to
The principal premise of affording complete immunity has been expressed in terms of “whether a judge or jury could review the policy or political decisions involved without in effect taking over the responsibility and power of these other branches.” Fitzgerald v. Palmer, supra 47 N.J. at 110; Hoy v. Capelli, supra 48 N.J. at 88; Amelchenko v. Freehold, supra 42 N.J. at 550. And, as stated in Weiss v. Fote, supra, 200 N.Y.S.2d at 415, 167 N.E.2d at 67:
* * * In the area of highway safety, at least, it has long been the settled view, and an eminently justifiable one, that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits; something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public. No such evidence was offered here.
We have not overlooked the various other reasons mentioned in the report of plaintiff‘s engineering expert as to the alleged negligent resurfacing of the highway and
For the foregoing reasons the trial judge properly resolved on the motion for summary judgment that there was no liability on the part of defendant. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954); Kugler v. Tiller, 127 N.J. Super. 468, 476 (App. Div. 1974).
Affirmed.