*1 KOLITCH, AD OF ADMINISTRATOR PROSEQUENDUM STEPHEN MINOR, DECEASED, KOLITCH, A THE OF ALAN ESTATE LINDEDAHL, PLAINTIFF-RESPONDENT, R. ES- STEFAN BRADLEY, AND JOHN A. TATE BRADLEY OF MARILYN JERSEY, DEFENDANTS, DEFENDANT- OF NEW AND STATE APPELLANT. BRADLEY, AD ADMINISTRATOR PROSEQUENDUM JOHN A. AS BRADLEY, M. DE- FOR THE OF PHILIP HEIRS-AT-LAW DECEASED, CEASED, BRADLEY, AND MARILYN DAVID M. DECEASED; BRADLEY, THE OF ES- B. AS ADMINISTRATOR BRADLEY, DECEASED, DAVID A. TATES OF PHILIP M. BRADLEY, BRADLEY, DECEASED, DE- AND MARILYN B. INDIVIDUALLY, PLAINTIFF-RESPONDENT, CEASED; AND LINDEDAHL, DEFENDANT, R. AND STATE OF STEFAN TRANSPORATION, JERSEY, DE- NEW DEPARTMENT OF FENDANT-APPELLANT. July 22,
Argued 1985 Decided 1985. March *3 Attorney-General, argued Clarke, Deputy Benjamin Kimmelman, (Irwin Attorney- I. defendant-appellant cause for Ciancia, Assistant attorney; James J. Jersey, General of New counsel). Attorney-General, plaintiff-respondent cause Brochin, argued the
Murry D. Fisher, Kohl, Brochin, Boylan Sandler, (Lowenstein, Bradley Meanor, attorneys). &
Douglas argued T. Hague, plaintiff-respondent the cause for (Wilentz, attorneys). Koliteh Spitzer, Goldman & opinion the Court was delivered CLIFFORD, J. recovery account of the
These consolidated actions seek on decedents, resulting wrongful plaintiffs’ deaths of high on a State automobile accident. The collision occurred New way. under the The issue is is liable whether State (the Act). The Jersey Act, 12-3 Tort Claims 59:1-1 to State, summary trial gave judgment court favor of Lindedahl, Appellate Division reversed. Kolitch v. (1984). N.J.Super. Appellate a dissent Because of Division, 2:2-l(a). appeal right. State’s as of R. We here reverse.
I 31, 1978, approximately p.m., On October 9:30 Stefan driving his Lindedahl was automobile the southbound lane of Alpine, Jersey. Route 9W in New As Lindedahl entered a roadway Hollow, of the known section as Walkers his automo- went out control and collided bile with another driven Bradley. Riding Marilyn with Bradley Mrs. sons, were her two Philip, young neighbor, David and and a Alan Koliteh. All of occupants Bradley car were killed. *4 Stephen Koliteh a wrongful filed death action on of behalf Division, in Law Bergen Alan the County, which was consolidat- by with a similar ed suit Bradley John on behalf of Mrs. Bradley boys. and the complainants two sought damages acts negligence for various of Lindedahl, from the of Borough i.e., Jersey, of New the State Bergen, and County of Alpine, the Department Transportation.1 the State roadway the at the that certain features of Plaintiffs claim Act’s dangerous condition within the accident site amount to a section, reads in 59:4-2. That section general full as follows: injury of its if the A is liable for caused a condition property entity by public dangerous condition at the time of that the was in establishes property
plaintiff dangerous injury, injury condition, caused that the was proximately dangerous the kind foreseeable risk of condition created reasonably injury and that either: incurred, which was wrongful negligent a. a or act or omission of employee public dangerous condition; created the within the of his entity scope employment dangerous condi- or constructive notice of the b. a had actual entity public injury to have taken under 59:4-3 a sufficient time to tion section prior dangerous against the condition. measures to protect Nothing construed to public in this section shall be impose liability upon if the action the condition of its entity for a public property entity against take such action was not the condition or the failure to took to protect unreasonable. palpably highway begin with those “irregularities” of the The asserted distances, poor foliage, such as sight that affect the features curbing, do not end there.2 At Walkers lighting, and worn but sag a “vertical curve.” Hollow the road is characterized which, design applied as to a is a technical term for a This upgrade, the road downgrade by an roadway, a is followed along a curve the two itself contains surface between 16:28-1.123, speed plane. horizontal Pursuant N.J.A.C. hour, per miles area of Walkers Hollow is 50 originally the limit although when the road was built lower, namely, per 30 miles hour. Aside from considerably limit, highway unchanged this increase in the appeared when it was first constructed. The core way it Borough Bergen against and the were 1 The claims of Alpine County in favor of both defendants and are not at of in fashion summary disposed issue in this appeal. throughout 2 Although the condition at Walkers this we refer opinion argument fact were after oral that in tense, in the we informed Hollow present project" in 1983. for the area was "substantially completed" an "alteration *5 plaintiffs’ argument posting miles-per-hour a 50 is that the sign dangerous within 200 feet of the curve created a condition or, a roadway, language, trap” to their “death for use unwary drivers.3 immunity
At the level its under trial the State asserted Act, provisions including design and immu- plan various of the 59:4-6; 59:2-3; nity, discretionary immunity, N.J.S.A. N.J.S.A. provide ordinary signals, failing and for traffic to having post It N.J.S.A. 59:4-5. also denied for failed to emergency 59:4-4, argued signals under that its N.J.S.A. roadway result in a of the activities did not condition specifically, position under 59:4-2. More the State’s is posting it cannot held for the of a does be liable nothing travelling public more than inform the of the correct setting limit. The State also asserts of the limit discretionary protect- first instance is function and therefore 59:2-3(b), public entity under which ed states: “[a] legislative inaction, judicial not liable for or action or or admin- judicial or or legislative istrative action inaction aof nature.” contention, gist then, of the State’s is that it be a cannot employee public entity public tort for a or inform the of a duly promulgated discretionary determination. expert plaintiffs’ 3 The submitted an affidavit at the trial level in he which
explained: 9W, highway prudent On a such as Route it is both reasonable rapidly existing driver to accelerate as as the traffic and weather condi- speed flowing tions to reach will allow which other traffic is or is expected upon because risk that to flow of the other traffic will come moving unexpectedly adequate opportunity slower vehicles without to slow Therefore, stop. posting speed of a limit of 50 on a miles hour roadway expected encourag- such as Route 9W can be to have effect of ing entering bring roadway speed drivers their vehicles to that as possible. soon as rise to a belief on the safely It is at such generally speeds. considered that the [********] part driver that posting any given road can be traversed gives *6 The trial immunity provi- court concluded that the various sions of Act dispositive plaintiffs’ the were of claims. 'On appeal the Appellate agreed plan Division with the State on its design immunity, reversed, but Judge over a dissent Fritz, dangerous on the issue of whether a had been condition general section, created the liability under Act’s 59:4— 2. The court below reasoned the not that State would be liability immune from for a roadway condition of the jury were a to determine that such a condition as the existed (as operational result opposed planning-level) of an to a decision post to speed-limit sign proximity within close to the curve Judge itself. Fritz dissented on limited issue of whether liability imposed be could under N.J.S.A. 59:4-2.
II Although under the common law cut back has been or in jurisdictions completely, some eliminated this made Court Department clear in Conservation Economic Willis & of (1970), Dev., judicial legislative of a N.J. actions or nature still be suit.4 should immune from As the Court there stated: * * * judiciary adjudicate It is time for to accept responsibility * * *
tort of State itself. will not liability [W]e express attempt ultimate will out doctrine; constituent be better evolved principles realities of cases. But we do not be liable State will specific emphasize judicial legislative inaction, for action or or or inaction or administrative action judicial legislative generally calling cast, of a nor with to decisions respect judgment for the of official exercise or discretion. lid. at 540.] governmental origins look at the of 4 For broader historical see 1 immunity, (2d 1952); English Maitland, F. Pollock and F. The Law E. ed. History (1924); Borchard, Tort,” "Governmental in 34 Yale A. Van LJ. Liability Change," Tort Decade "Governmental A U.Ill.L.Fo
Alstyne, Liability: (1966); (2d J. Pearson, rum 919 Henderson and R. The Torts ed. Process 620 1981); (5th Keeton, W. and W.P. Torts § Prosser Law 1341 at 1032-33 1984). ed. Following the decision Willis Attorney General com- pleted an exhaustive review of the law this area and made change.5 Jersey for The New Tort extensive recommendations Act, recommendations, Claims which stems these became following legislative 1, 1972, July effective on and carries declaration: declared to be the of this entities State [I]t hereby public policy public negligence
shall be liable their within the limitations of this act and only with the fair and uniform established herein. All accordance principles carrying act with a view of this should be construed out the above provisions legislative declaration. [N.J.S.A. 59:1-2.] unmistakably in providing
The statute is therefore clear part imposed on the of the State cannot be unless *7 Bell, Bell v. N.J. consistent with the entire Act itself. 83 Eatontown, Borough (1980); McGowan N.J.Su- 417 151 of per. (App.Div.1977). 440 Ill 59:4-2, general To recover under the Act’s section, plaintiff property a that the in must show was dangerous injury; a injury condition at the time of the proximately condition; dangerous was caused the that the dangerous reasonably condition created a foreseeable risk of incurred; injury public employ the kind of that was and that a public entity ee created'the condition or that the had the condition itself. Brown v. protect against notice in time to Brown, 565, (1981); N.J. N.J.S.A. 59:4-2. Additionally, 86 575 recovery there can be no unless the action or inaction on the legislature begin 5The authorized was to his on Attorney-General study decision in Willis. See 1966, in some four before immunity years light abolishing of Willis and another decision However, 52:17B-4.1. in T & L Construction Co. v. P, Commissioner actions, in contract State's (1970), N.J. Kugler 55 341 stated that "a more Transp., Attorney-General of subject intensive examination of the Attorney Report of required.” Sovereign (1972), Kugler General’s Task Force on Thus, at 1. Re Immunity of both the Court’s decision in Willis and an earlier legislative is a product port mandate.
493 part public in entity protecting against the condition was unreasonable,” “palpably a term nowhere defined in the Act. today’s For purposes accept we what was stated 278, Williams v. Phillipsburg, N.J.Super. 171 (App.Div. 286 1979), in which the court differentiated “palpably the term ordinary unreasonable” from negligence: We have no doubt that the of duty care, the breach of which is termed ordinary negligence, degree differs refrain from unreason- duty palpably able conduct. The latter standard more obvious and manifest breach implies of duty more onerous burden on the imposes plaintiff. We conclude that implies patently the term behavior is unacceptable any given under As circumstance. one trial court suggested, has public entity for a have acted or failed to act unreasonable, palpably a manner must “it be manifest prudent person approve and obvious no would its course Polyard Terry, of action inaction.” 148 N.J.Super. (Law Div.1977), grounds, 216 on other 160 N.J.Super. rev’d 497 o.b., (1979); (App.Div.1978), N.J. see also H. aff'd Novack, Margolis R. Against Tort Claims Public Entities (1984) Moreover, (discussing Polyard). Williams and proof regard palpable with burden to the unreasonableness action on plaintiff State’s or inaction is in a case of type. Hills, Township Parsippany-Troy this Fox v. —den., N.J.Super. (App.Div.), -(1985); certif. N.J. H. Margolis Novack, 54; Comment, supra, & R. “The N.J. Tort Forward?”, Step Act: A Claims 5 Seton Hall L.Rev.
(1974). the plaintiffs’
Of four essential elements of the cause of action, one, condition, only a dangerous the existence of any in The term itself is discussed detail the courts below. 59:4-1, defined which N.J.S.A. states: “Dangerous a condition” means condition of that creates a substantial property injury risk of when such is with due in a used care manner in which it property is foreseeable that it will be used. reasonably Moreover, courts have defined a risk” “one “substantial as minor, insignificant.” Polyard is not trivial or Terry, supra, N.J.Super. Appellate at 509. Polyard, arises the issue “[ejach Division case where further stated that to determine judge, must be pragmatically examined such particular highway irregularities whether the were they manifested reasonable minds could differ as to whether at 510. highway that the Id. was in a condition.” case, we Applying principles to this foregoing agree with the a tort to communicate State that it cannot be accurately agree properly speed a limit. We also established setting that the instance is a speed limit in the first discretionary Fitzgerald case of pre-Act function. In the Palmer, stated, (1966), “[wjheth 47 N.J. 109-10 this Court * * * policemen, er a road lights, should have traffic or traffic speed or a matters per limit of 50 or hour—such 60 miles judg involve discretion and revenue are committed to the legislative Moreover, in ment of the and executive branches.” legislature empowered 39:4-98 the specifically has Transportation “designate Commissioner a reasonable and circumstances, speed safe limit” under certain an exercise of specific legislative delegation. discretion under suggests speed The dissent limit at “lawful” Walk- per hour, currently posted ers Hollow is not 50 miles limit there, speed only may but rather at which the curve itself safely speed be traversed “reduced in fact —that speed. (emphasis lawful” Post at 507. original). This ingenuously proposition provides contrived the convenient springboard for the remarkable posted sign conclusion that the accurately communicate the speed applica- “did not lawful limit in question.” of road to the stretch Post at (empha- ble 499. original). sis in made, point, persuasively
The dissenter’s so misconstrues the statutory provisions govern and administrative this case. vicinity That the of Walkers Hollow is 50 per disputed. hour miles cannot be See N.J.A.C. 16:28-1.123. Moreover, empowers Highway 39:4-98 State Com- “signs missioner to erect and maintain billboards such *9 advisable, points of to as setting entrance the State are deemed * * speed the *.” Significantly, forth lawful rates of predecessor following provi- to N.J.S.A. 39:4-98 contained the any regarding any sion unsafe movement: “In case where such [designated] speed would be unsafe it shall not be lawful.” L. 1939, 211, c. provision 1. That was removed from the statute § 1951, 23, 55, point following see L. c. at which § added:
The driver of vehicle with every shall, consistent of this requirements approaching crossing section, drive at an reduced when and appropriate speed approaching going grade crossing, an intersection when and or railway approaching traveling around when curve, a hill when crest, any upon winding narrow or when hazard exists with to roadway, special respect highway or other traffic or reason or pedestrians of weather conditions. by [Emphasis added.] provision This latter today. remains 39:4-98. statutory changes These it unmistakably make clear simply “lawful” limits of are those that are posted, namely, those above using limits which motorist our roadways will be held to be regula violation traffic hour, In per tions. the case before us limit 50 miles precisely by posted sign. that which is communicated reducing speed onus of some appropriate ap when level proaching a curve such as the one at Walkers Hollow is on the Thus, subjected driver. the State cannot be for the posting long sign of a so as itself does not misinform actual, regard public permitted with to the lawful as appropriate statute and as enforced officials. recognize this connection we as it relates to this case is a distinction to be made a planning-level that there between decision, discretionary generally which is entitled to immuni operational action, ty, and or ministerial which is not. See 59:2-3; Josey, 83 (1980). Costa v. N.J. 58-60 As * * * explained, discretionary one has court act calls for “[a] personal the exercise of judgment, deliberations and which in facts, examining reaching conclusions, turn entails reasoned acting way specifically on them a not directed.” Miree *10 United, (N.D.Ga.1980) States, (emphasis F.Supp. 490 774 added). posting sign merely one We of a believe limit, to set a certain a decision acting form of on the decision discretionary in nature and therefore entitled to immuni- that is Thus, implementation the act of are ty. both the decision and purposes of the statute. Even if this one and the same for the case, posting sign nothing a that does more were not the hardly public inform of the lawful limit could be than meaning of that “palpably viewed as unreasonable” within term as used in the Act. its failure to warn of the
Nor is the State liable for curve itself. In Aebi v. Monmouth hazardous nature of the (App.Div.1977), Dep’t, N.J.Super. County Highway killed, county- plaintiff injured, was and another driver on a bridge considerably narrower than the road on owned that was sought predicate liability plaintiff which it was located. The warn “that county on the basis that the had failed to motorists being suddenly roadway was reduced to the the width of rejecting argument In bridge.” width of the Id. at 432. 59:4-5, provides: which the court relied on N.J.S.A. is liable under for Neither a nor a this employee chapter public entity public signals, signs, injury traffic caused the failure to provide ordinary by markings or other similar devices. interpreting provision, the court concluded: “The deter- this advisability necessity of a mination as to the traffic or place requires warning any particular at the exercise of device discretion, simply specifies par- hence 59:4-5 one discretionary activity immunity to which at- type ticular 433. taches.” Id. at Likewise, Township Southampton, Johnson den., (1978), (App.Div.), certif.
N.J.Super. 518 N.J. seriously injured when he into a motorcycle rider was smashed partially that was guardrail at a “T” intersection unmarked and vegetation. The by obstructed trees and other court held that by municipality 59:4-5 the virtue of N.J.S.A. immune failure to have marked the for its intersection. The court also ability concluded: “The limited to make observations by on either side of road vegetation caused trees simply as a warning served that due care must be maintained.” Id. 523.
Finally, points we have considered the additional raised plaintiffs’ briefs and are they correctly satisfied that were In particular, agree resolved the courts below. we as the “sag insofar curve” could be to be danger- considered condition, provisions ous that condition is insulated 59:4-6, granting construction accord- *11 approved well, ance plan design. agree, with We as that public entity could not be held liable for provide failure to “emergency signals, signs, markings or other devices” under 59:4-4. have points despite N.J.S.A. We considered these they properly appeal, fact that are not before us on this there issues, been having 2:2-l(a)(2), no below dissent on those R. see petition and no for those certification raised additional points, 2:2-l(b); Fino, 154, see R. State v. Del 100 N.J. 165 cf. (Court (1985) grounds urged would not consider for of reversal conviction when Appellate not addressed Division not and subject certification). grant of a of IV It is well established public that the burden is on the entity plead prove to Act, both its under our see Ellison v. Housing Auth. 162 Amboy, N.J.Super. South of 347, (App.Div.1978); to on succeed for motion summary judgment, the entity must proof “come forward with of a nature and character any genuine would exclude [that] * * dispute However, of fact moving party Id. once a has burden, summary and, indeed, met that judgment is warranted desirable, judicial as a economy. matter of Judson Peoples Westfield, (1954); Bank & Trust Co. N.J. (App. Benthian, 4:46-2; N.J.Super. Sutphen R. cf. unwarranted”; Div.1979) defen- (summary judgment “entirely decision policy high-level “clearly type dant’s conduct not the * * * Act”). light of the the Tort Claims contemplated by above, met its in this has burden State provisions discussed prevail. therefore entitled case and is The reversed. Division is Appellate of the judgment entry there Division the Law cause is remanded Jersey. New defendant State in favor of judgment J., O’HERN, concurring. how close is the call not to admit
It less than candid would be compelling points out dissent in this case. Justice Handler’s Act. The contradictory signals of the Tort Claims how are the dangerous condition of for a the Act concedes the condition when property under 59:4-2 is withdrawn N.J.S.A. road, design of the act such as the is caused an immune 59:4-6, proper of the legislative determination or the 59:2-3(b). limit. immune very posting irony is that The bitter this fatal acci- may contributed to legislative statement have Indeed, may have conflicted with other posted speed dent. *12 59:2-1 makes the comment to N.J.S.A. speed control laws. Yet any immunity to insure that statute is “intended clear that the prevail will act common law provided in the or provisions Immunity is the dominant consid- liability provisions.” over 515, State, See, e.g., Malloy v. N.J. eration of the Act. (1978). 518-19 conflicting interplay provisions of the Act in this may present
case one of those rare occasions that will commend P, legislative itself to consideration as a claim. L T & Trans., (1970). Dept. Const. Co. v. Comm’r N.J. of HANDLER, J., dissenting. general
As proposition, a agree I with the Court that “it cannot be a Department (DOT tort Transportation of [for State) accurately communicate properly speed ] established Ante however, limit.” 494. is not incon- proposition, This sistent theory with a liability proposed by plaintiffs in this litigation. Plaintiffs’ suggests evidence the existence of a involving posted condition that did not accu- rately communicate speed the lawful applicable to the question. stretch of road in prove Plaintiffs also offer to inapplicability any might immunities that otherwise be avail- able against as a defense their I claim. would therefore affirm Appellate decision, Division’s which reversed the trial summary judgment court’s against plaintiffs. Accordingly, I dissent.
I. My differences with the majority important. are narrow but They proceed from application a different of the subtle and provisions intricate of the Tort Act Claims to the circumstances complete this case. A exposition of the facts is therefore necessary why, my understand opinion, plaintiffs have established a valid cause of action that is not barred statutory sovereign doctrine of immunity.
Just after p.m. 9:30 on night Halloween Marilyn B. Bradley driving family's her Opel northbound on Route 9W in Borough Alpine. Riding with her in the car 11-year-old sons, were her twin Philip David and Bradley, and 11-year-old neighbor boy, Alan Kolitch. At about the same time, 22-year-old Stefan R. Lindedahl turned his 1969 Pontiac southbound on the approached same road. He had Route 9W Avenue, entering Hillside at the “T” intersection between the two roads. Lindedahl accelerated to reach what he thought because, was the mph words, limit of 50 in his he feared coming up “traffic behind” his vehicle. *13 Bradley point the and where
Between vehicle the Lindedahl roadway entered Route 9W is a section of known Walkers as asphalt This traverses Hollow. two-lane stretch a vertical sag by downgrade Such a characterized curve. curve is upgrade, intersection followed where the between plane. two Lindedahl had not along itself curves the horizontal enough to driven in the area often recall this combination of sign dip roadway only curve in the and one in the 200 and saw mph feet between Hillside Avenue and Walkers Hollow: a 50 speed sign. Hollow, testimony describing approach his Walkers dark,” “very the road
Lindedahl has stated that was without “suddenly, streetlights, up very sud- and the curve came denly.” indicating signs He saw no that there would a curve be ahead, his signs indicating no that he should lower curve, reaching signs indicating mph before no curve, sight there limited and no distance reflectors path. Although painted in the lighting his there were lines lanes, along roadway center of the and the sides of other boundaries, nature, helped that could have delineate the factors curve-and-dip and at Hollow were risks Walkers obscured by inadequately foliage vegetation. trimmed has he into happened
Lindedahl described what when drove curve-and-dip of Walkers Hollow: warning coming impending I There was no of an curve and when up gas I was in the curve I shifted foot from the to the realized brake my pedal. realizing going fought steering out I now I was the car was of control. By right side, the car seemed to veer from side to wheel and left to very quickly to left motion. On return left I lost control and crossed the center totally dividing At this we lines. time I saw car and crashed Bradley immediately Everything foggy thereafter was until I 'woke up’ thereafter. hospital. occupants car not so Mari- the other were fortunate. lyn Bradley apparently could not see the Lindedahl vehicle action, position time evasive as she maintained her to take riding her children with her in the lane. She the three died collision, very shortly thereafter. head-on *14 Plaintiffs offer evidence that this crash should be attributed having posted mph sign just DOT’s a 50 before the Walkers dip. Hollow According expert, curve to their design is not the [i]t of the road in the area of Walkers simply Hollow that signed caused the accident in proximately Had the road been for the question. designed actual safe of 20-30 miles with speed hour, maintenance per adequate of the environs to delineate roadway’s the curve at a distance sufficient accordingly, judgment a driver to react it is permit that it is my reasonably that this accident would likely not have occurred or its would have been severity mitigated. warning signs It is not the absence of before the simply Walkers Hollow sag vertical curve that caused the accident. To the proximately it is contrary, signs, that it is because reasonably likely there were 50 miles speed of misled, the believing hour, driver the other car was into that he of higher could traverse the curve safely at that speed. In it is a short, combination of circumstances within the control of peculiarly * * * that created [DOT] the conditions that resulted in the accident. significant Those as-designed circumstances include a alteration in the nature of increasing the road limit all bounds of speed beyond reasonableness, failure to maintain the road and its environs so as to whatever limited preserve sight geometries distance the the failure to warn of a permitted, traveling condition and the posting active deception public by speed of limit aggregate, excess the actual the road. In the speed far of safe of gross these circumstances constitute a deviation from the standard appropriate judgment, (Emphasis added.) of care and are, my unreasonable. palpably expert The explained further speed how the maximum safe of roadway at Walkers Hollow would be dictated the actual characteristics of the sag vertical curve. He concluded if speed mph, were 40 then length the minimum vertical feet; curve should have been 600 if it mph, were 50 minimum length fact, however, should have been 1400 feet. only feet, curve ran for expert and the concluded that “[ujnder no circumstances would a in excess of 30 miles an hour have been design consistent with of that section of the roadway.” length sight 1 The elaborated on the need for an expert appropriate distances in the curve at Walker’s Hollow. The of this distance arises from the fact that there importance is a finite being reacting time within which a human period to an capable external condition. One must be able to correlate that time with period
II. DOT, plaintiffs against agency, such as In suits a state for liabil alleging negligence predicates must first establish any provision granting the ity, application later avoid statutory See N.J.S.A. sovereign immunity. 59:2-1. species tort is a recognizes scheme defense, responsibility which excuse for tort of affirmative can P, L T & Con fault. negating without the existence of Commissioner, Department Transporta Co. struction *15 tion, 55 N.J. 341 see also N.J. (1970); 76 Merenoff Merenoff v. (1978) (describing general propo scope of the same 547-48 Keeton, Law The Torts sition); accord W. Prosser & W. of Keeton). (5th 1984) (Prosser important It ed. is also 1032 & consequences that from the of understand the State’s See, immutable. its is neither absolute nor tortious conduct Club, Borough Inc. e.g., Colony Birchwood Lakes v. Med of Lakes, Brown, Brown N.J. 565 (1982); 86 N.J. ford (1981); Costa v. Josey, Abraham, 83 N.J. (1980); Schriger (1980). N.J. case, predicate their of action on the plaintiffs
In this cause governing The public property. condition law such unsafe provides claims that: by property public entity injury a of its if the A caused condition is liable dangerous
plaintiff
property
conditionat the time of
was in
establishes
condition,
proximately
dangerous
injury,
injury
that
caused
was
person's ability
action in the event that the need
to take corrective
hazard, recognize
example,
must
see a
that it in
arises. For
one
be able to
enough
poses danger
appropriate
a
and take
action far
advance to
fact
general,
generally
time
1.5
the hazard.
that reaction
is
seconds.
avoid
however,
traveling
period,
at 50
an hour will
a
a vehicle
miles
cover
In that
traveling
greater
at 30
an hour. While both
distance than one
miles
react,
period
time
in which to
the driver of the
drivers will have the same
upon
than
of the
car will
the hazard sooner
the driver
slower
faster
be
**
by]
geometries
length
*.
is exacerbated
need for
[The
vehicle
area
Hollow
because of conditions of
Route 9W the
of Walkers
darkness,
overgrown foliage,
canopy, inadequate signing,
inadequate
tree
curbing and
like.
dangerous
that
condition created a
foreseeable risk of the kind
reasonably
injury
which was
and that either:
incurred,
negligent
wrongful
a.
a
act or omission of an
employee
public
dangerous
within the
of his
created the
entity
condition; or
scope
employment
dangerous
b. a
had actual or constructive notice of the
public entity
condi-
injury
tion under section 59:4-3 a sufficient
time
to the
to have taken
prior
against
dangerous
measures
condition.
protect
Nothing in this section shall be construed to
a
impose liability upon
public
dangerous
for a
condition of its
if
entity
the action the
public property
entity
against
took to
the condition or the failure to take such
protect
action was not
unreasonable.
palpably
[N.J.S.A. 59:4-2.]
This Court
recognized
provi-
has
based on these
requires
(1)
sions
demonstration that
condition of
public
(2)
property
proximately
(3)
plaintiff’s injury
caused
in a
way
(4)
reasonably
entity
foreseeable
after the
charge of the property either
protect
had notice in time to
against the condition or
employ-
had created the condition
acting
scope
employment;
further,
ee
within the
agen-
cy’s action or
“palpably
inaction must be
unreasonable.”
Brown, supra,
59:4— “Dangerous condition” means a condition of that creates a property substantial injury risk of when such is used with due care in a manner in which it property it will be foreseeable used. reasonably *16 giving dangerous rise A “substantial risk” to a condition is minor, insignificant.” trivial or not Polyard “one that (App.Div.1978), N.J.Super. o.b., 509 aff’d Terry, (1979). plaintiff must advance enough A facts to N.J. people to find that jury of reasonable the enable a condition at 510. dangerous. Id. case, prove was offered evidence substantial that a this aspect of existed. One the evidence is dangerous condition collision, Bradley that, years prior to there had in the 25 injuries deaths, accidents, causing and 31 in been 330 near the scene along Route 9W of the mile distance of one accidents, been at Walkers 110 had Hollow collision. Of those Notwithstanding itself, 13 deaths. resulting injuries in 63 facts, plaintiffs “failed to the trial court concluded these majority The that the risk was ‘substantial’.” demonstrate disagreed, reasoning that the State had Appellate Division stretch of dangerous condition of the 200 foot created “a limit, posted speed as roadway travelling at the for motorists sag curve' in Walkers Hollow result of the ‘vertical poor visibili- misleading speed sign with a combination accidents, history indisputable that of ty.” I think it evidence injuries, and deaths at Walkers Hollow constitutes “condition of the fairly be inferred that a from which it could Brown, risk of harm. property” created a substantial Cf. (16 years in one at 570-71 accidents over three supra, 86 N.J. “very that a of road led to a concession the State stretch existed). dangerous hazardous” condition aspect dangerous of the condition A second evidence mph sign sag placement just to the of a 50 before relates factor; it focused The trial court did not consider this curve. solely changing twisting course of attention on the contour and determining dangerous condition was the road whether action. limited evaluation was incom- caused DOT’s This appreciate plaintiffs’ it failed to claim of a plete because dangerous unsafety presence condition was based on the speed-limit dip, in relation to the curve and as well (and history prior my point as the accidents. In view on this majority), no difference perceive plaintiffs properly I from the configuration sign’s on both the road’s focus and the location. Newark, 191,195 (Law N.J.Super. Lytle City Div. (“in exists, 1979) determining dangerous whether a condition * * * * * * must consider the the court streets and the traffic making up municipal as one unit property devices] [control statute”). into referred consistent with the underlying
It is intent the Tort Claims placement mph sign just Act to consider the of the 50 before determining Hollow in Walkers whether a condition Legislature contemplated existed. must have such an statutory provision, of this application because if it were not signs part could be *17 public intended of the condition of
505 property, Legislature not, then creating special would immunity in liability 59:4-5, from have limited that immunity only post signs. to the legislators Had the failure desired, they easily so could provision have drafted that same Thus, to immunize place sign. the affirmative decision to as Appellate recognized, sign posted Division if public on property, attribute, it feature, should be considered an or condi property; tion of that there should be if in fact the sign’s placement dangerous is so as to injury create a risk of from the foreseeable normal use of Kolitch v. property. Lindedahl, N.J.Super. 540, Lytle (1984); 193 accord v. 547-48 Newark, City supra. approved The same result is in several of decisions interpreting the California Tort E.g., Claims Act.2 State, Harland v. 475, 142 Cal.Rptr. Cal.App.3d 201, 75 206 (1977) (posted sign setting excessive limit contributed to dangerous condition); City Cudahy, Teall v. 431, 60 Cal.2d of 434, 34 Cal.Rptr. 869, 871, 386 P. 2d 493, (1963) J.) (Traynor, 495 (in State, the face of an claim the sent case to trial plaintiff’s on allegation deception” based that “active due to the placement of a dangerous traffic control device created a condi Bernadino, tion); City De La Rosa v. Cal.App. San 16 3d 739, 746, Cal.Rptr. 175, (1971) (faded 94 179 “stop sign ahead” condition); Bakity County dangerous contributed to Riv erside, 12 Cal.App.3d Cal.Rptr. (1970) (location 90 545 condition).3 stop contributed to * * * interpretations 2 "Weoften look to of the California Tort Claims Act Lakes, guidance supra, in construction of our own statute.” Birchwood 90 N.J. at 595. controls, misleading sign, dangerous placement the state 3 The of a which dangerous person substantially presence or animal on state differs given holdings. may unpreventable property, the State’s vast land be which Auth., (App.Div.1983) NJ.Super. Rodriguez Sports Exposition & v. N.J. "dangerous persons (presence a criminal intent is not a at a racetrack of with (a Trenton, condition”); N.J.Super. (App.Div.1978) Cogsville vicious condition’’); “dangerous public Setrin dog is not a an infant on a street that bites (criminal (App.Div.1975) College, N.J.Super. conduct State v. Glassboro condition"). college "dangerous part is not a of a student at a state on the *18 framework, supports analytic plaintiffs’ this evidence Within posted speed “danger- their claim that the created a 59:4-l(a). by According to ous condition” as defined evidence, rely sign, proffered drivers could and did on the believing they driving were with “due care” in accordance with Further, posted speed “reasonably it was foreseea- limit. ble” that the road would be travelled in this manner. Their reasonably likely it is expert testified that “it is that because * * * hour, signs, speed there were for a of 50 miles an safely believing was misled into that he could [Lindedahl] speed.” expert traverse the curve at that The concluded that deception” this “active contributed to the risk at Walkers predictable way. Hollow a addition, history prior placement
In if the accidents and of enough proof mph sign the 50 were not to constitute of a condition, plaintiffs’ probative evidence is proposition mph sign that the 50 at Hollow stated a Walkers in violation speed-limit applicable statutory standards. N.J.S.A. 39:4-98 Legislature presumptive a established speed mph applicable Jersey maximum limit of 50 on all New however, provision qualified, by legislative roads. This is roads, along portions mandate that certain of state drivers specifically requires must slow down. 39:4-98 * ** driver of vehicle shall drive at an reduced [t]he every appropriate speed * * * going approaching approaching around when hill curve, when a travelling winding when narrow or and when crest, upon any roadway, special hazard exists with or other traffic or reason of respect pedestrians highway weather conditions. Thus, although particu- this statute also authorized DOT to set speed any case-by- lar maximum limits for stretch road on done, 16:28-1.123(a) N.J.A.C. example, by case basis —as govern power Route 9W—it is clear that the to authorize the placement particular speed-limit sign governed by of a mandate N.J.S.A. 39:4-98 statutory requires driving speeds along highway. reduced certain areas of The lawful speed limit on such stretches of road must be less than the speed maximum might limit that otherwise be authorized general regulation. statute or strongly suggests configu- evidence the case trigger
ration of the road at Walkers Hollow should the statu- tory requirement appropriate speed.” for “an reduced Credit- ing summary that evidence as we must on this review of judgment, speed-limit; that reduced in fact is the lawful posted mph speed surely would “appropriate exceed that *19 speed” plainly reduced and be inconsistent with it. Under this facts, analysis posted speed-limit contrary would be operative to the statute. plaintiffs alleged through employ-
Because that the State its dangerous condition, ees created they do to not have show “adequate that the State had notice” of the condition under 59:4-2(b). Nevertheless, the evidence demonstrates that DOT knew that the dip, combination of the curve and density, posted speed traffic and the posed a substantial risk of injury using Alpine to the motorists Route 9W. town officials repeatedly agency and residents had specifically written the complaining about the hazards of the Walkers Hollow curve.4 4 IronicaIly,plaintiff Bradley John A. wrote one such letter on June 1975. reads, part: It * * * * * * * * * investigated] It clear [the is to me that DOT not has] Goin, area road from Rio Vista south of Hillside Avenue and to Glen north of Hillside Avenue. This stretch of road has claimed several lives since I Alpine particularly dip moved to and associated with the known as Walk- Hollow, explained er’s 200 feet south of Hillside Avenue on Route 9W. I * * * official) [a all this to named state and he stated be that this would marked, subject study. lighted poorly This road area is further hazards, including driveways, poorly contained several other access to placed utility poles, dip [and] a hazardous and curve. Trees and rocks town, speed monitoring obscure vision and little or no done * * county thorough plan or state *. I would first ask for a more (Em- your department dip and one that includes the at Walkers Hollow. added.) phasis Thus, hazards, only plaintiff, allegedly, not did the DOT know of the but had promised years been some remedial action over three before the death of his wife and children. Indeed, underway plaintiffs allege plans had been “for prior upgrade year about a or so to this accident” 9W, improve particular emphasis on the dis- Route with Thus, high risk to travellers tances.5 DOT was aware of the period through Walkers Hollow for a sufficient “to have taken protective against condition. measures” materially requirement on an additional
This evidence bears
59:4-2,
action,
challenged
namely,
that the State’s
inaction,
“palpably
Tortious conduct will be
be
unreasonable.”
palpably
if it is “manifest and obvious
considered
unreasonable
* * *
prudent person
approve
that no
would
course of
[the]
N.J.Super.
Polyard
Terry,
action or inaction.”
(Law Div.1977),
grounds,
N.J.Super.
rev’d on other
o.b.,
(1979).
(App.Div.1978),aff’d
III. Independent plaintiffs’ case, im- affirmative DOT claims munity under the against Tort any Claims Act cause of action based on placement mph speed evidence that the limit of a 50 sign near Walkers Hollow created a condition. my view the evidence in this establish case is not sufficient to these plaintiffs’ immunities and action as a defeat cause of matter of law.
A. initially Legislature State authoriz- observes that the has ed DOT to N.J.S.A. speed set a limit for Route 9W. 39:4-98. points properly promulgated DOT also that it out regulations mph establishing speed limit at 50 on the maximum Walkers Hollow. See N.J.A.C. traversing stretch of road correctly 16:28-1.123. DOT concludes State immune from any speed-limit suit enactment of the based on either speed-limit regulation, statute or the that because the Tort * * provides public entity Claims Act that is not liable for “[a] legislative judicial administrative action or inaction of a or However, 3(b). nature.” DOT also asserts 59:2— 3(b) any post signs immunizes decision to 59:2— identify simply or communicate the limit authorized enactments, signs posted.6 no matter where the are immunity upon legislative 6 The defense based action in the context of this conceptually immunity, namely, case is related to another form of that based Palmer, plan design provided by Fitzgerald on or 47 NJ. N.J.S.A.59:4-6. See case, however, (1966). plaintiffs they 109-110 In this do not contend that challenge original speed-limit are entitled to the State's decision to authorize a mph may arguably aspect design plan of 50 as that be considered an Rather, they place speed- for this road. assert that the decision to an actual independent at the Walkers Hollow site is a decision from the Indeed, highway’s original design plan. appear argue or DOT does not original legislative mph speed triggers authorization of the 50 limit itself plan design immunity recognizes under N.J.S.A.59:4-6. The State that this directly charge negligence is not relevant to the in the actual *21 placement particular speed sign specific limit at the location on the road. nature of recognize argument This last fails to regulations sign-selection DOT’s procedure. sign-posting Engineering delegate of Traffic to the Chief of the Bureau (Bureau signs. Chief) limit speed responsibility posting for initial markedly from the N.J.A.C. 16:27-2.2. This task differs decision to set Precise standards speed the maximum limit. government derived from printed by a manual the federal decisions, govern ap- public policy these formulation no pears to any particular sign-posting be entailed in decision. (Forward). N.J.A.C. 16:27 actions are These administrative legislative layers thus far removed from origins by their subdelegation. addition, this evidence that informs administrative decision is ordinary investiga- derived from field tions, information-gathering process quite different from adjudication entailed either administrative or rule-mak- Thus, ing. the determination the Bureau Chief to authorize particular speed-limit sign simply implementation involves previously public policy established reflected enacted regulations. partakes statutes and It is an action that more of judicial legislative authority. executive than or Consequently, place speed-limit sign protect- the decision to should not be 59:2-3(b).7 ed under N.J.S.A. Consequently, legislative it claim concentrates on the on the 59:2-3(b).
character of its under actions regulations provide Engineering 7 DOT further that the Chief of the Bureau of expressly placement changes signs. must authorize all of street N.J.A.C. sign posted 16:27-2.3. If at Walkers Hollow without Chief, approval placing of the Bureau the actions involved in would persons legislatively not be immunized. Unauthorized cannot act within the 3(b), meaning of N.J.S.A. can their nor actions be considered discretion 59:2— 59:2-3(a) (discussed States, ary, infra). Birnbaum United 588 F (2d Cir.1978) Keeton, (collecting cases); .2d federal see also Prosser & statutes, (actions supra, violating regulations, at 1041 or the Constitution are immunized). not
511 B. case, 59:2-3(b) inapplicable in this were found
If N.J.S.A. 59:2-3(a) immunizes its argue that the State could then Brown, supra, 86 the N.J. at 578. That section of actions. public entity is not liable for provides Act Tort Claims “[a] judgment resulting from the exercise of or discretion injury an defining scope of this entity.” in The basic rule vested Costa, supra, in immunity was stated 83 discretionary function N.J. at 59: 59:2-3(a) concerns the ‘exercise of under N.J.S.A. the exemption contemplated planning, making
judgment made at the in basic type or discretion1 policy —the decisionmaking. Moreover, level of immunity rather than the operational contingent level an exercised at that that discretion actually upon proof weighed competing policy faced with alternative who, official approaches, and made a conscious choice. considerations 60, Birchwood, Costa, 90 N.J. at supra, 83 at N.J. Following only 601, immunity attaches when we reaffirmed that actually making policy decisions charged with basic official consciously exercises dis approaches and evaluates alternativé 782, Cal.Rptr. State, 73 69 Cal.2d cretion. Accord Johnson (1968) (conscious means 240, exercise of discretion 447 352 P.2d objec gain policy other risks order to “assuming certain Seattle, 239, 2d 525 P. 2d 228 City 84 Wash. tives”); King v. consciously balancing risks (1974) [requires] (“policy decision Davis, P. 2d 855, Or. 290 626 advantages”); Bradford properly (1981) authority must have been (policymaking exercised). responsibly delegated and planning discretionary acts and The distinction between one of our foundation- acts reinforces operational or ministerial Prosser separation powers. government: principles of al Keeton, Against Actions State 1039; supra, at Civil & Handling Jayson, see L. 1982); (Winborne, ed. Government 7,n. 12-6 n. 12-18 n. 13 & 12-36 Federal Tort Claims 12-5 cases). 1984) (Bender (collecting principle This pub. federal n. 7 legislative determina- give effect to requires judiciary conclude, may after decisionmaker an authorized tion that policy reflection, gains certain due to potential arising risks outweighs choice of harm from that choice. Keeton, supra, Thus, Prosser & at 1047. 59:2-3(a) judgments policy insulates all basic Costa,
review, supra, see N.J. because “where there is discretion,” Dale policy judgments, room for there is room for States, 15, 42, 956, 971, hite v. 346 U.S. S.Ct. United *23 1427, (1953). L.Ed. Legislature 1444 As the observed in its 59:2-3, discretionary protect Comment to decisions are judicial they ed from because are “reserved to a review coor Keeton, See also Prosser & government.” dinate branch of supra, at 1046 (one justifications chief for this immu “[t]he * * * nity judiciary should not been invade the [has] province government by supervising branch of the executive * * * ”).8 through its tort law decisions however, already concluded,
This that Court has the immuni- “protects] only ty liability discretionary functions for Costa, supra, 83 N.J. at 55 policy basic judgments.” (emphasis Keeton, added); (discre- supra, accord Prosser & at 1046-47 tionary immunity applies “only function when there ‘pre- is no decisionmaking”). question, then, dictable standard’ for post speed-limit particular sign whether the to a decision entails policy-making properly the kind of that can be characterized as discretionary governmental a to immunity. action entitled governments
In several cases have been held liable on the ground policy-making that or discretion not involved posting installing of traffic control that improperly devices public, notwithstanding liability advised the that no could attach government if the had chosen to install no device at all. In Teall, supra, Cal.Rptr. 871, 495, 34 at P.2d at 386 Justice Traynor recognized discretionary immunity protect did not city dangerous a a placing proper- had created condition ly functioning signals in way public, traffic a that misled the justification commonly imposed 8 Theother asserted if is "that were decisions, discretionary effective executive would action be chilled.” Pros Keeton, supra, ser & at 1046.
513 signals place traffic right to though city had even sued if it had decided not have been though city could even Harland, 207, supra, Cal.Rptr. at 142 place signals. not to testimony “expert the 65- recognized similarly the court high too view of speed limit was mile-per-hour posted held that this contributed to bridge,” and other hazards supra, Cal.Rptr. Bakity, also See dangerous condition. mph speed limit could make that a 65 (recognizing 543-45. condition); Steven avoid a stop ineffective Transportation, 619 P. Or. Department son v. State by a (court recognized that if drivers were misled (1980) 2d colliding could drivers agency be liable light, the state traffic to these cases The element common lights). relied on who policy or by the state did not involve taken the action is that decisions, by straightfor adjudged could be discretionary but also Shuttleworth Conti negligence standards. ward (state Co., N.J.Super. (App.Div.1984) Construction signs); Brown v. Mac properly maintain for failure to liable (state (1975) Pherson’s, 545 P.2d would be 86 Wash.2d danger warn of avalanche undertook to gratuitously if it liable *24 warnings so, plaintiff of from deprived do if that and failed to States, (N.D.Cal. F.Supp. 1211 Medley v. United others); 543 govern if immunity inapplicable 1982) (discretionary function failed to indicate chart that published an aeronautical ment through mountain safe route dangerous spot on an otherwise affirmatively increased the risk terrain, this action because ous harm). Act reinforces the Tort Claims of the provision Another exception does discretionary function understanding that placement of involved in the negligent decision immunize a not noted, immun- specifically the Act sign. previously a traffic As by injury an caused employees “for public entities and izes markings signs, or signals, ordinary traffic provide to failure see, added); (emphasis similar devices.” 59:4-5 other N.J.Super. Southampton, 157 Township v. e.g., Johnson 514 denied, (1978); N.J. Aebi v. Mon- (App.Div.),
518 certif. 77 485 Department, County Highway N.J.Super. mouth 148 (App.Div.1977). Legislature’s ties The Comment Hoy Capelli, v. 81, in 48 N.J. 59:4-5 to this Court’s decision where, (1966), denying based on the removal of the light prior sole at an almost traffic intersection two months to accident, specifically found “there auto Court that is not suggestion slightest that either driver in an acci- [involved * * * * * * any dent on the fact that regula- relied traffic had] appears Legislature tion existed.” It thus that the device itself between the immunized not differentiated decision to install a control, sign actually other traffic decision to install specific particular sign or control at a location. The latter discretionary not be to be so decision should considered as to be Rogers State, v. Accord Hawaii liability. 293, immune 296-298, 378, (1969) (decision place P.2d 381-82 where to ministerial).9 sign is suggests may also theory record an additional bar application discretionary of N.J.S.A. 59:2-
3(a).
government’s
been recognized
It has
that “where the
place
appears
particular
9 It also
to
decision
at Walkers
consider,
present
opinion
expert
jury
Hollow would
an issue
could
Thus,
any
professional negligence.
as in
other case of
made
decisions
government-employed experts may
they
be reviewed if
involve
do not
consider
"[tjhe
standard,
public policy
presence
pre-existing safety
ations of
because
of a
* * *
appropriate
governing
activity
question,
or other
standards
tend[s]
displace
governmental
exists for
the room
otherwise
discretion and
1041-42;
Keeton,
see,
immunity.”
supra,
e.g.,
&
Prosser
United States v.
Co.,
(1955) (air
Union Trust
350 U.S.
S.Ct.
L.Ed. 796
traffic
negligent performance
duty
controllers could be held liable for
of their
as
land);
States,
experts
guiding airplanes
(3d
United
As at evidence length, supra discussed mph sign at Walkers probative proposition of the that the 50 is statutory applicable Hollow violated set 39:4-98, statute, requires That standards. mph the 50 speed limit at Walkers Hollow be less than lawful No general speed-limit. fixed been as the statewide has statutory ignore regulation Chief to could authorize Bureau Thus, signs. requirements placement speed-limit considered a post speed-limit sign could not be decision to discretionary posting of the Consequently, lawful act. discretionary governmental ac- as a should not be immunized 59:2-3(a). tion under N.J.S.A.
IV. presented issues of fact summary, plaintiffs have triable proba- proffered their evidence respect to claims. The with by proximately caused accident was of a claim tive under the State’s control. highway condition reasonably immunities suggests that relevant also evidence discretionary involving legislative or Claims Act under the Tort *26 not, be, are may action not available to the State as affirma- tive defenses.
Accordingly, I judgment believe the below should be af- firmed, and the case remanded I for trial. therefore dissent.
O’HERN, J., concurs the result. CLIFFORD, POLLOCK, O’HERN For reversal —Justices and GARIBALDI —4. HANDLER —1.
For Affirmance —Justice