Costa v. Josey

JACOBS, WILENTZ and Justices For reversal—Chief Justice PASHMAN and SCHREIBER—4. CLIFFORD, HANDLER and POL-

For affirmance—Justices LOCK—3. COSTA,

JOSEPH GENERAL AND ADMINIS ADMINISTRATOR AD THE ED TRATOR OF ESTATES OF PROSEQUENDUM FLOCCO, JR., FLOCCO, WARD J. AND PHYLLIS PLAINTIFF- JOSEY, DEFENDANT, APPELLANT, AND v. ALBERT J. JERSEY, STATE OF NEW DEPARTMENT OF TRANSPORTA TION, DEFENDANT-RESPONDENT. Decided May Argued 1980. December (Diamond, for appellant the cause argued T. Afflitto Joseph Afflitto, attorneys). and Diamond Skillman, General, argued the Attorney Assistant Stephen New (John of Degnan, Attorney J. General respondent cause for General, Deputy Attorney Conley, Erminie L. Jersey, attorney; General, on counsel; Marshall, Deputy Attorney Thomas F. of brief). the the was delivered opinion

The of Court SCHREIBER, J. ad Costa, and administrator general as administrator

Joseph Flocco, his J. Jr. and the of Edward of estates prosequendum against Flocco, wrongful a death action instituted Phyllis wife Transportation (Department). Department of Jersey the New having maintained Department negligently the with charged He and eastbound separating the repaired center barrier and Teaneck, N.J., danger- on so that traffic Route 4 westbound as a roadway. alleged He that existed in the ous condition Josey crossed Albert J. vehicle the codefendant result the their causing with the Floccos’car barrier collided over the deaths. summary for granted Department’s motion trial court

The 59:4-6 immune under N.J.S.A. holding defendant judgment, the New Tort Act. The Jersey Appellate Claims Division af- N.J.Super. firmed. 160 1 (App.Div.1978). granted plain- We tiff’s petition (1978). for certification. 78 N.J. 335 The mem- divided, being bers of the equally judgment Court was (1979). granted plaintiff’s affirmed. 79 N.J. 535 We petition rehearing reargument. for and heard 81 N.J. 294 We now reverse essentially dissenting for the reasons stated in the opinion. 79 N.J. at 536. considering Department’s

In motion summary judg- ment, parties (1) dividing all have assumed that the barrier in a roadway dangerous was condition at the time of the (2) injury; dangerous reasonably condition created a occurred; injury (3) foreseeable risk of the kind of which Department had notice of the condition a suffi- cient prior injury time to the to have taken measures to correct it, (4) the failure to take such action was palpably Department unreasonable. 59:4-2. The contends See N.J.S.A. that despite the hazardous condition of its road it is immune responsibility from under N.J.S.A. 59:4-6. That section immu- public entity liability injury nizes a for an caused plan or design public property original “either in its construc- thereto,” tion or any improvement design where the has been approved by public employee in advance of construction exercising discretionary authority to give approval. such Department’s defense is that the initial contemplated that the by subsequent divider would be lowered resurfacing agree of the road. We with the conclusion in the dissenting 542-543, 79 opinion, N.J. at that there are material disputes factual over whether the original plan design or of the road contemplated pavement would reduce the height dividing of the barrier and cover its part. lower Department relies principally Schuyl on the affidavit of James er, containing 1955, his recollections of conferences held in to why determine the bottom four inches of the barrier were

53 reflecting an affidavit a they upon were. Reliance designed as before years more than 20 of events which occurred recollection of the statement at accuracy of the justify acceptance cannot affidavit an in the absence of cross-examination. Such least support factual for necessary not and cannot furnish the does should be exercised be judgment. Extreme caution summary party present, a who was not entering judgment against fore objective of what any evidence particularly in the absence Forming Bilotti v. Accurate cf. meetings, at those occurred N.J. 184, testimony opposing or which the Corp., 39 (1963), 193 cf. cross-examination, to test opportunity had had the party Sirotta, 39 N.J. we satisfied on Beadling Nor are plans for moving papers subsequent of the the basis original “improvement” an to the repairing the road constituted We remain from maintenance. distinguished construction as summary judg of the that on a motion for principle mindful doubt as to the ment, any the movant must exclude reasonable Co., Casualty Ruvolo v. American existence of a factual issue. 39 N.J. 490, (1963).1 liability government immune from is 1The dissent seems to assume property negligent though maintenance its 59:4-6 even

under N.J.S.A. Any assumption dangerous such condition. of a causes the existence original designs only applies plans con misplaced. provision or That original any “improvement” construction. to the or struction of the dangerous of the arises because condition When remains, construction, even governmental attaches and original subsequently may though dangerous arise because condition body governmental However, not immunize a that does of others. activities dangerous its careless or responsibility created conditions for from distinguished arising as maintenance negligent out of its affirmative acts property. improvements to its (1972), Cal.Rptr. State, 491 P.2d Baldwin v. 6 Cal.3d Baldwin, refers, -In in this case. to the issue dissent is irrelevant which the provision highway a left-hand plans made no of a for construction time traffic conditions turning at the intersection because lane at a certain Twenty-five years special later the any consideration. such did not warrant at changed a traffic control pattern to have so that the failure had traffic litiga- In the allegedly condition. in a resulted the intersection Department argues immunity The also that it is entitled to N.J.S.A. under 59:2-3. That section reads as follows: injury resulting a. A is not liable for an public the exercise of entity judgment or discretion vested in the entity; legislative judicial b. A is not liable for or action or or public entity inaction, legislative judicial administrative action or inaction of a or nature; c. A determining is not liable for the exercise of discretion in public entity whether or to seek or whether to [s/c] resources for the provide necessary hiring of the construction or maintenance purchase of equipment, facilities, general, governmental of in personnel and, provision services; adequate d. A is not liable for the exercise of public discretion in the face entity when, competing it determines whether demands, and how to utilize or apply existing including those resources, allocated for facilities and equipment, person- nel unless court concludes that the determination of the was public entity Nothing unreasonable. in this section shall exonerate a palpably public entity negligence arising for carrying out of acts or omissions of its in out employees their ministerial functions. of N.J.S.A. 59:2-3 (b), (c) (d) do not their Subdivisions nor legislative terms cover the action taken here. Neither (subdivision (b)); judicial implicated action is nor discretion for the determining provide necessary whether the funds (subdivision (c)); nor construction or maintenance of the road among competing that a choice demands suggest does defendant (subdivision (d)). existing resources is involved (a) of 59:2-3 broadly Subdivision states that a public entity injury is not liable for an resulting from the However, judgment (a) exercise of or discretion. subdivision injuries arising involving at an automobile accident a claim for out of tion held that the immunity Court intersection, Supreme California (West 1966), whose 830.6 statute, § Code under the California Cal.Gov't language Act, did not apply. served as a model for our Tort Claims Sovereign Task Force on the New General’s Attorney Report Jersey (1972) rejected concluded that the Immunity interpretation adopted by be at Report position should perpetual, Legislature. for a entity does not immunize a public our That proposition involving main- its careless affirmative acts condition caused by tenance. protected areas of conjunction with the should be read (b), (c) (d). subparagraphs and expressly outlined discretion respect with consistently, should be read each All the subsections signposts are subject subparagraphs of the others. These to discretionary deter- of immunized understanding to the nature that the “exercise of . discre- They suggest minations. actual, 59:2-3(a) high-level policymak- to tion” in refers N.J.S.A. balancing competing considera- ing involving decisions entrusted to coor- traditionally have been tions. Such decisions courts, utilizing standard government, dinate branches of and interfere with them. These ill-equipped tort are principles, as likely include such decisions discretionary determinations expend resources Department’s “whether to utilize the road; repair whether to funds for the maintenance [a] what should be resurfacing; or roads by patching road [and] it is 79 N.J. at 545. Once Josey, . . ..” v. repaired Costa resurfacing program involving determined that a maintenance however, undertaken, government ordinarily will be will be 59:4-2. care set forth in N.J.S.A. held to the standard of involved may discretion still be Although the exercise of some choose one (e. planners may g., transportation only basic another), protect rule will over be in harmo- a construction would determinations. Such policy (b) (d). through subparagraphs with ny A task force selected the Attorney General drafted the New Jersey Tort Report Sovereign Claims Act. Its on Immuni- ty, published in May contained substantial explanatory therefore, comment. fitting, It is that we look to that comment in searching legislative for the intent 59:2-3. The explains Comment this was provision codify intended to existing law. It cites examples, Dep’t as Willis v. of Conserva- tion Development, (1970), & Economic 55 N.J. 534 Amelchenko v. Borough, (1964), Bergen Freehold 42 N.J. 541 Koppe- nal, cases, along N.J. 478 All three with Fitzgerald v.

Palmer, (1966), support principle only N.J. 106 high-level policy are immunity. determinations entitled to

Fitzgerald high-level and Amelchenko both involved choices. In Fitzgerald rejected we a claim that the Highway Department, constructing highway overpass, should have built a fence prevent persons throwing objects on cars passing below. This was because matters such as “whether a lanes,” eight road should have four or six or or should have “dividers, jughandles turns, or circles or lights, or traffic policemen,” speed traffic or a certain limit “involve discretion

. and are judgment legislative committed to the and executive branches.” 47 N.J. at 109-110.

In Amelchenko we found that a municipality had not breached duty it owed under 40:60-25.5 person N.J.S.A. to a who fell unplowed in an municipal parking lot days several after a snowstorm. The Court found that the municipal deter- officials’ minations as to plow which streets and lots to and in what order high-level constituted a choice. 42 policy N.J. at 550. hand, On the other in upheld Willis the Court the cause of action a three-year-old child who claimed that the traumatic amputation feeding sugar of her arm in caged to a bear was the result of the in negligence leaving cage State’s unattended permitting and in holes screening. to remain The Court that, held once the cage animal, decided to State wild ordinary tort principles govern would the question of the adequacy of safeguards. suitable

The Comment to 59:2-3 also indicates that subpara- (a) graph provides the immunity broad for discretionary acts adopted by jurisdictions other including (Cal.Gov’t California (West 1966)) Code 820.2 the federal government § (Federal Act, Tort 2680(a)). Claims 28 U.S.C.A. Both the § California and the federal statutes contain broadly worded clauses predicating immunity upon the exercise of discretion. Although neither contains specific clauses of restrictive nature (b) (d) similar to subparagraphs through Act, of the New Jersey protect only policy both statutes have been construed to basic decisionmaking. patterned large the New statute was Jersey

Since measure statute, after the we turn first to the California law. California The provides: California act resulting injury or omission an from his act is not liable for

[A] public employee vested of the discretion was the result of the exercise where the act or omission (West 820.2 § be abused. Code whether or not such discretion [Cal.Gov’t in him, 1966)] immune public employee also states that when the is The act as well. liability, public entity generally is immune (West 1966). opinion dealing 815.2 The seminal Cal.Gov’t Code § Johnson v. meaning discretionary with the State, (Sup.Ct.1968). Cal.Rptr. 447 P.2d Cal.2d had sued the state for its failure plaintiff In that case the child boy placed who was as a foster 16-year-old warn that a background tendencies and a plaintiff with the had homicidal injuries suffered cruelty violence and to humans. Plaintiff state, summary she sued the boy. when assaulted When entered in favor of the state. California judgment was Supreme reversed. Court Justice analyzing purposes,

After the statute and its carefully court, test. Tobriner, writing two-part for the enunciated a First, immunizing have an “basic decisions” could only operational distinguished planning between effect. He immunity. decisionmaking, only being the former entitled to made, Second, would also policy when a “basic decision” was it immunity entitled to upon be incumbent the state before it was discretion in prove policy consciously to maker exercised objec- assuming gain the sense of certain risks to other declared, tives. As Justice Tobriner the state must demonstrate advantages” occurred. balancing a risks and “conscious [of] 794, 8, Cal.Rptr. at 249 n. 8. at 447 at 361 n. 73 Id. P.2d liability a claim exempts The Federal Tort Claims Act from performance exercise or or the failure to upon “based 58 discretionary duty part function or on the perform

exercise or Government, whether employee or an agency federal 2680(a). involved be abused.” 28 or not the discretion U.S.C. § States, 15, 42, 956, 971, 97 346 73 In Dalehite v. United U.S. S.Ct. 1427, (1953), Supreme L.Ed. 1444 the United States Court planning distinguished defined in terms of as operational decisionmaking. subsequently This distinction was 61, States, Towing reaffirmed in Indian Co. v. United 350 U.S. tugboat aground There a ran S.Ct. 100 L.Ed. function, when a to the light lighthouse on a failed to due negligence Although govern of a employee. Coast Guard only operational decisionmaking impli ment conceded that was cated, Supreme nevertheless drew the distinction Court between the to undertake the service which lighthouse decision planning regarding involved discretion and decisions mainte operational. planning nance which were Once the discretion had made, been exercised and the decision the Coast Guard “was obligated light kept to use due care to make certain that the was good . at at working order . . .” 350 U.S. S.Ct. 127, 100 L.Ed. at 56. has been dichotomy planning operation

This between See, applied g., federal decisions. e. Driscoll v. subsequent States, (9 1975) (reversing 525 F.2d 136 Cir. dismissal of United complaint, engineer’s held that even if an decision to court services at an Air Force base was made provide traffic control level, at the conclude that his decision not to planning one could devices, made at the warning install barriers and crosswalks was level, using review tort operational susceptible was standard subject immunity); not Seaboard principles, and hence was States, (5 1973) Line R. v. United 473 F.2d Cir. Coast Co. (although government’s decision to build an aircraft mainte- facility drainage system nance and to build a involved immu- discretion, was an building drainage opera- nized of a ditch subject by plaintiff alleged tional function to a suit who ditch, railroad negligent because of the construction of the Ex- derailed); American were and a train tracks undermined 1958) (al- States, (7 257 F.2d 938 Cir. Bank United change in decision was involved the immunized discretion though office, a the decision post to build and where to locate whether steps front handrailing for the in of as to whether include building immunity). the did not create the in Johnson and in federal cases principles announced exemption contemplated that under support the conclusion the discre- 59:2-3(a) judgment “exercise of concerns the making type planning, made at the policy—the tion” in basic Moreover, decisionmaking. than the level of operational rather was contingent upon proof actually is that discretion who, faced with alternative exercised at that level an official considerations and approaches, weighed competing policy made a conscious choice.

Thus, of to undertake a maintenance determination whether policy choice as to the allocation program might have involved a the decision to maintain as Amelchenko. Once resources made, however, immunity would seem to have was the tort ended, point high-level did that determina- as it in Willis. At existing re- how to allocate provide program tions to have Although may were some discretion complete. sources con- programs were been exercised as different sidered, ordinarily operational made at an this decision would be exercised, Fitzger- discretion level and not rise to the level of resurfacing plans recognize ald We and Amelchenko. officials, by high-level the State approved in this case were Engineer Transportation. Highway the Commissioner may that decision-maker indicate Although identity that conclusion does policymaking, basic decision involves may operational decisions not A official make high-level follow. Here, any as record devoid of evidence well. than an approval was other

Engineer’s and Commissioner’s may simply signified have operational determination. It expend funds and with the decision to plans accorded approval resurface road. Even a conscious of the details of the plan would not it from have removed of an category operational Moreover, decision. principle subsumed within the that the public entity is immune when it exercises its discretion with to respect basic necessity demonstrating is the policy, that there has in of Here, fact been an exercise that discretion. for example, assuming involved, that a basic matter was nothing any there is to competing indicate that policy choices were actually resurfacing plan when the considered was made and approval given. discretionary

That the immunity function be should limited to policymaking actual supported by is further practical considera- tions. apparent It is that a interpretation literal of term exempt “discretion” would effectively operation from the Tort Claims Act all government action it unless resulted from conduct, mere inadvertence. Almost all official no matter how ministerial, involves the judgment exercise of some and decision- making. (a) however, To broadly, construe subsection would in effect Legisla- eliminate most of the which the liability ture to clearly permit intended when it enacted the statute. Summary judgment on the of discretionary basis under was N.J.S.A. 59:2-3 not warranted.

We and plenary reverse remand for a at trial which all the facts may be fully developed respect with applicability to the of the immunity provisions of N.J.S.A. 59:2-3 and N.J.S.A. 59:4-6.

CLIFFORD, J., dissenting. Being generally in accord with the views expressed by Judge Division, Horn for Appellate N.J.Super. (1978), I would affirm. Summary judgment properly was entered for the De- partment Transportation.

The subject dispute of this is a concrete center divider on Route 4 in Teaneck. The divider was constructed in 1956 pursuant plans approved by the Highway Engineer State Highway State Commissioner. At that time the barrier was stretch in 1974the again particular In 1962 and high. 19 inches resurfacing The 1972 4 in was resurfaced. question of Route High- plans approved by State pursuant completed was Plans for Commissioner. Highway and the Engineer State way Olszanowski,the by Bernard designed were the 1974 resur- Transportation’s Department for the State coordinator Bureau the Chief of the approved by facing program, Engineer, Schuyler, and Mr. James R. Chief Maintenance and 1974 As a result of the 1962 and Maintenance. Construction was the divider at the base of resurfacings facing the vertical was to about height of the divider reduced eliminated and inches. 15 substantially argues the plaintiff The divider, it into a vault- transforming the nature of changed the with Transportation of ing ramp. charges Department He the divider, thereby the cre- repairing negligently maintaining and The caused the accident. a condition which ating by of afforded the immunity on basis Department defends the (hereafter Act, seq. Tort N.J.S.A. 59:1-1 et Jersey New Claims design 59:4- Act), particularly plan immunity, and N.J.S.A. the 6, immunity, 59:3-2. discretionary activities N.J.S.A. See, g., e. of Act. is the dominant consideration the

Immunity State, 515, dispute beyond 76 N.J. It is Malloy tort and to restore the legislative intent was State’s subject excep immunity carefully to certain delineated contract 518-19; explicit To this as tions. Id. at 59:1-2. make N.J.S.A. the as 59:2-1 states possible, the Comment to N.J.S.A. any immunity provisions is “intended to ensure that statute law over the prevail the act or common will provided by liability provisions.”1 appended Report 1The to the statute are taken from the Comments Sovereign Immunity—May Attorney Task General’s Force on They by accompanied during legislature. have the Act its consideration history. weight legislative precedential Ellison v. of See and value Auth., (Comment (App.Div.1978) Housing N.J.Super. cited as intention). legislature’s express of indicative conditions of public of entities for liability with the dealing

In specific set forth a scheme. See legislature public property, and indeed control- especial interest seq. 59:4-1 et Of N.J.S.A. 59:4-6, which states: is ling import Neither the nor a Is liable under this for public entity public employee chapter injury design original an caused or of either in its plan public property, design construction or where such or thereto, has been any improvement plan Legislature in advance of the construction or or approved improvement by governing a or some other or body public entity body public employee exercising give such or where such or discretionary authority approval plan design (Em- is with standards so prepared conformity previously approved. added.) phasis legislative intention behind this section of the Act is clear. Comments, appears As from the this “is intended to section grant a public entity public employee complete immunity and a injuries resulting public property from a officially approved when it has an body.” been authorized Comment, The policy N.J.S.A. 59:4-6. behind the otherwise, exposed self-evident. Were it would be State very sphere liability against broad and extensive which adequate impossible. protection economic would be negligent A be held for omissions within the private entrepreneur may readily government chosen ambit of his But the area within which has the activity. good to act for the is almost without and the State has no limit, power public everything might to do that be done. Rather there is a discretion duty political ought as to what to be as to and as to how much should be raised done, priorities, government taxes or borrowed to that end. If does when it acts in act, then, by judged a manner be as in the case of a short of could ordinary prudence, liability design imperiling if a road were constructed of a the the user, So private party. issue fault would whether a road should have of no novel But present problem. eight jughandles six or for four or or or there should be or circles lanes, dividers, lights, or a limit of 50 or 60 miles or traffic or traffic turns, policemen, per speed committed to the hour—such matters involve discretion and revenue and are

judgment legislative to such the matters, of the and executive branches. As

63 judge jury is a or could review the or whether decisions political question taking involved without effect over of those in the power responsibility [Fitzgerald v. (1966).] Palmer, 47 N.J. 106, branches. 109-10 other 59:4-6 that are sever Examination N.J.S.A. discloses there immunity (1) plan, for built into one section: the grounds al by body; has been an official design improvement approved or approved by a improvement or has been (2) plan, design the discretion; (3) plan, design the or employee exercising public previously so conformity in with standards improvement is plan of such the or purposes design For approved. construction, only by need be in advance of either approved employee an exercis legislative public entity by or body v. authority give approval. City Thomson ing discretionary Glendale, Cal.Rptr. (Ct.App. 56 Cal.App.2d 61 132 design plan or 1976). Further, requirement is no that there 385, 132Cal.Rptr. Id. at at expressed any particular be form. 57. Auth., Housing Ellison 162 N.J.Su

Unlike situation offered clear and here has (App.Div.1978), 347 State per. was constructed and the the divider proof uneontroverted plan a pursuant to resurfacings performed were subsequent road exercising body employee or public a approved by an official sub discretion, or The substance of affidavits both. by been concerning approval has not prior this by mitted the State Appel court and the Both the trial plaintiffs. contested prior was sufficient approval that this late Division concluded at N.J.Super, within 59:4-6. bring an ended. Where the inquiry Thus the is 10. public approved by been public property has improvement to body, official the State discretion or an employee exercising injuries resulting liability immune from Housing Rodgers v. Passaic property. on public condition den., 71 N.J. Auth., (App.Div.), certif. N.J.Super. 64 Waddington, v. 154 N.J.Su- Cobb

(1976); 59:4-6. See den., (1978); Spin Co. 76 N.J. 235 (App.Div.1977), certif. per. (Law Div.1975). Co., N.J.Super. 520 Maryland v. Cas. by mandated the seek to evade the plaintiffs The as to the dispute is a factual by arguing statute there is, much facing—that vertical so original purpose of the divider’s subsequent the road resurfac- facing by of the as was covered may very the well majority opinion, the Court ings. As I read suggestion. argument The over- have been distracted this resurfacing is immu- subsequent that where the point looks the 59:4-6, the and involving facts nized under N.J.S.A. See, simply are not material. original design the of the divider Comm’n, Sewerage g., Metropolitan e. Allstate Ins. Co. N.W.2d 148 Wis.2d Allstate,

In plaintiff the was involved in an automobile acci- dent while trying discharging to avoid a truck effluent into a manhole in portion the traveled of the street. The manhole was part sewage of the system operated maintained and City of Milwaukee and the municipal sewerage commission had is- sued the truck a permit dumping. for the 258 N.W.2d at 149. The Supreme Wisconsin Court concluded that the decisions of the city planning commission in designing sewage system, including manhole, the placement legislative were performed acts pursuant to the authority plan commission’s and construct sewer systems metropolitan Milwaukee such, area. Id. at municipal 150. As corporations involved were liability. immune from set forth in was in with the location If the of the manhole compliance placement governmental it act . . . and was a nondiscretionary protected by though use of the This is so even subsequent immunity. placement (footnote omitted).] danger. at 151 [Id. manhole have created a may opinion no on expressed question Wisconsin court municipal immunity planning

whether the that attached to the

65 in view persist subsequent experience function should or which an changed conditions demonstrate actual and substantial danger. Id. n. 5.

That question was State, 424, addressed in Baldwin v. 6 Cal.3d 1121, 491 P.2d Cal.Rptr. (1972). 99 There the California Supreme Court held that where changed physical conditions produce public condition of property causing injury, public entity does not retain statutory immunity from liability even though plan or design of the construction or improvement public to the property is shown to have been reasonably approved in advance prepared or in conformity with previously standards approved. 438, so Id. at 491 P.2d at 1127-28, 99 Cal.Rptr. at Baldwin, 154-55. In changed physical condition was a substantial increase in road traffic. Id. 429, 1123-24, at 491 P.2d at Cal.Rptr. at 147.

Notwithstanding its assertion to the contrary appears it emphasis its on resources, maintenance and allocation of ante at majority attempting inject the rule in Baldwin into our jurisprudence. tort claims On the face itof this is a effort, logical since our Tort Claims Act is modeled after the comparable California statute. Normally, may profitably we guidance interpretative look for to the subject decisions on the State, Burg the California courts. 147 N.J.Super. den., (App.Div.), However, certif. 75 N.J. 11 in pursuing us, that course in the circumstances the majority today before does that which it indirectly has been instructed not to do directly; legislature flatly for the disapproved of the Baldwin Comment, case in the accompanying Comments the Act. N.J. 59:4-6. “specifically rejected S.A. Baldwin was as unrealistic and inconsistent with the thesis discretionary immunity—that government second-guessed coordinate branch of should not be judiciary high policy level While decisions.” Id. there is much to be said as a matter of for the Baldwin rule—and, token, by the same adopted by for the rule rule is not the law of

majority today—that simply plainly province New It is not within the of this Jersey. Court legislature’s rejection override unmistakable of the Baldwin rule. clearly

The Act dictates that there is no limitation on the length protection governmental offered to entities statutory immunity of 59:4-6. As the Comment states: is intended that the in this section be [I]t immunity provided change That once the attaches no event or is,

perpetual. subsequent existing of conditions shall render a liable on the public entity theory constitutes condition. property public Accordingly, I would affirm. join opinion. in this

Justices HANDLER and POLLOCK WILENTZ and remandment—Chief Justice For reversal and JACOBS, Justices PASHMAN SCHREIBER—4. CLIFFORD, and POL- HANDLER For affirmance—Justices LOCK—3.

Case Details

Case Name: Costa v. Josey

Court Name: Supreme Court of New Jersey

Date Published: May 13, 1980

Citation: 415 A.2d 337

Court Abbreviation: N.J.