*1 WILENTZ, аnd Justices Justice For affirmance —Chief POLLOCK, CLIFFORD, HANDLER, GARIBALDI STEIN—6.
For reversal—Justice O’HERN—1. WEISS, OF AD G. ADMINISTRATOR ROBERT PROSEQUENDUM WEISS, OF ELIZABETH ANN AND GUARDIAN THE ESTATE WEISS, INFANT, THE HEATHER PLAINTIFF-RESPON OF TRANSIT, DENT, NEW RAIL OPER v. NEW JERSEY JERSEY ATIONS, OF TRANS INC. AND JERSEY DEPARTMENT NEW INC., PORTATION, CONRAIL, AND DEFENDANTS-APPEL BRADNER, INC., UNION, LANTS, AND THE OF A.C. COUNTY CORPORATE, 1-25 DOE FICTITIOUS GOVERNMENTAL JOHN ENTITIES, AND OTHER DEFENDANTS. PROVIDENCE, THIRD- AND OF NEW DEFENDANT BOROUGH PLAINTIFF-APPELLANT, POWER v. JERSEY CENTRAL PARTY COMPANY, THIRD-PARTY DEFENDANT. LIGHT & Argued June November 1991 Decided *3 General, argued the Sabatino, Attorney Assistant M. Jack Transportation Jersey Department of appellant New cause Attorney of New Conrail, (Robert Tufo, General Inc. J. Del Attor- Former Assistant Clancy, R. Jersey, attorney, Michael Attorney counsel, Armstrong, Deputy General, M. John ney briefs). General, on the Borough appellant Jr., argued the cause for Kelly,
Thomas J. Vasios, attorneys). (Hurley & Providence of New Jersey appellant New argued the cause for J. Seaver Edward Jersey (formerly known as New Inc. Operators, Transit Rail Sachs, Inc.) (Podvey, Operations, Jersey Rail and New Transit Cocoziello, attorneys; Edward Catenacci, Meanor, Hildner & Firkser, brief). on and Steven J. Seaver respondent. cause for argued the R. Henry Simon by the Court was delivered opinion of O’HERN, J. relationship proper required to resolve again we are
Once
provisions of the New
liability
between
Act,
facts of
to :12-3. The
N.J.S.A. 59:1-1
Jersey Tort Claims
decision of the
reported
in the
case are set forth
this
We recite
On true apply because the did not immunity under N.J.S.A. of the not the absence dangerous condition was cause of negligence independent light rather the but install the plan of a implementation delaying bodies design panel found that *4 signal. The this case because apply immunity did design, plan for not the original plan or to the applied 273, 2d 1359. N.J.Super. at 584 A improvement. 245 as a “tortuous it described emphasized what Appellate Division NJ.Super. 245 red-tape.” history of bureaucratic [eight-year] logic. powerful has a argument 584 A 2d Ann would not Weiss delay, Elizabeth it not for the Surely were argument crossing. But the grade at this tragically died have 380 logic many exceptions to the
has same as other claimed immunity provisions. Act's principles applicable
To state the
to such an action is
State,
easy.
Rochinsky
employees roadway sanded the five minutes before she was by skidding struck car. That failure also could be considered granted delay. If the immunities under the Act bureaucratic inapplicable effectuating were found to be because involved, governmental actions there would be little left to grаnted by the Act. In the context of other the immunities immunities, recognized liability provisions courts have specifically granted precedence the Act not take over will immunities.
381
Borough
Clayton,
251
Henschke v.
in
example,
For
of
police
393,
municipal
N.J.Super.
(App.Div.1991),
598
526
investigate
of articles
negligently
to
the theft
officers
failed
matter, causing
plaintiffs home and “whitewashed”
from
397,
Id. at
598 A.2d
personal
loss of his
effects.
However,
police
negligence of the
the court found that
dimin
under N.J.S.A.
59:2-2 and -3 did not
officers established
legislative immunity granted
municipality
to
“for
ish the
provide police рrotection,” under N.J.S.A. 59:5-4. Id.
failure to
Doe,
569,
N.J.Super.
also Lee v.
400,
232
See
598
2d 526.
at
A.
failed
(police officers who
to
(App.Div.1989)
wrongdoing by plaintiff who was subse
to
of
respond
claims
liability
wrongdoer
immune from
under
quently
shot
were
Delia,
N.J.Super.
59:5-5);
Wuethrich
155
N.J.S.A.
liability
(App.Div.) (general provision for vicarious
Werе there
other
issue
triable
gence
example, had the underbrush that obscured visibili
—for
ty
crossing
property
subject
at the
on defendants’
to
maintenance,
their
any
or had there been
other condition of the
property
dangerous
exist,
e.g., that caused the
condition to
pothole
long duration,
spill
oil
roadway,
an
on the
or a
Bergen Koppenal,
v.
light,
478,
broken
N.J.
A. 2d
(1968),
complaint might
have stated a cause of action.
Rochinsky, supra,
110 N.J. at
(weather
immunity did not include “artificial creation of a snow bank
highway impassable”).
that makes a
argues
Plaintiff
the Tort Claims Act is meаnt
high-level
only
policy
government
insulate
decisions of
because
only judicial
implicates
separation-
review of such decisions
Josey,
See Costa v.
83 N.J.
of-powers
55-56,
doctrine.
Palmer,
Fitzgerald
(1980) (citing
47 N.J.
A .2d 337
(1966),
The failure to send out the road low- 1193, might classified as a 560 A 2d also have been decision,” “political administrative decision rather than level express immunity for weather conditions found that the but we dispatching sanders. prevailed negligent over *7 Act of the Tort Claims adjured have the framers We perspective approach cases from should these that we Act. immunity is the dominant theme Court New Supreme of a statute the Jersey In the absence comprehensive asking “ought not to be that courts ... developed approach analytical ha[d] asking given but rather ... should not in a situation apply why immunity King, Inc. v. West B.W. it should whether there is reason any why apply.” York, longer New This is no 133 approach light Tort Act. Rather the Claims approach this comprehensive necessary not, liability immunity applies attach. skould an and should be whether if in the utilizing will exercise restraint this the courts It is that in approach hoped [N.J.S.A. against entities. of novel causes action public acceptance Task Force Comment.] liability not case, immunity applies, does an In because this attach. are liable argued entities also
Plaintiff de “emergency” 59:4-4 for failure under N.J.S.A. harmful to the dangerous condition to warn of vices needed apparent to one not be that would safe movement exception That agree. are unable to using due care. We “sudden, emer unexpected that are applies to conditions [or] Co., N.J.Super. Casualty Spin Maryland gent.” Co. Div.1975). Thus, (Law .2d McGowan 347 A N.J.Super. 376 A .2d of Eatontown, 151 Borough artificially-in presence of unexpected an (App.Div.1977), warning. emergency an icing warranted condition duced danger endemic, this case the emergent. existing All systems for but the traffic operational, controls were the cross- place, bucks were in warning lights red flashing, were road view, markings were in and the intersection was heavily trav- may eled. Whatever sudden, flaws have existed were not unexpected, emergent. Even trap” the “death in Kolitck regarded could not be as an emergency that would necessitate placement warnings signals. atN.J. 497 A.2d Because the plaintiffs fundamental thesis of case is that in implementing policy-level decision of the Com missioner erases immunization for post failure to a traffic signal, we do not address complex issue partial of whether plan design immunity was afforded to certain defendants plan features of the subject new that were to their control in place. example, For Jersey Operations New Transit Rail (incorrectly Jersey denominated as New Operations) Rail as serts done, that all that it could do had been e.g., new cross- bucks and place flashers were in operational, but that DOT and municipality had exclusive signals. control of the traffic We believe it best to view the matter as the Division did—that yet operational Thus, this was not an plan. although agree dissenting we with our members that in order to avail plan itself of the design immunity 59:4-6, under N.J.S.A. public entity must specific demonstrate that the design *8 alleged detail dangerous to constitute the condition was itself the subject prior approval of prior approved standards, or see Thompson v. Housing Newark Authority, 108 N.J. 537, (1987) (no original plans evidence that ad safety), dressed the issue of fire the difference in this case is failure tо light the traffic specifically has been immunized N.J.S.A. holding
On the issue of entity for accountable delay effectuating in the installation signal, of the traffic we take analogous policy account of our respect with to the effect
385 Thus, immunity. passage design plan of of time on interpret in although guidance for we often look to California 319, Act, 109 ing Layman, Claims see our Tort Fuchilla 331, (1988), so here. Under Califor 2d 652 we do not do 537 A. (as law), governmental “the nia under New York’s common law ostrich-like, not, blueprints, in hide its head entity may plan” and the blithely ignoring operation of the the actual State, 6 developing dangerous condition of land. Baldwin 151, 1121, (1972) 424, 145, 1127 Cal.Rptr. 99 491 P.2d Cal. 3d 409, Fote, (citing 7 N.Y.2d 200 N.Y.S.2d Weiss v. (1960)). analysis, of the for Whatever the merits N.E.2d discre example, threat of undue interference with that “[n]o situation,” id., tionary decision-making exists this Cal. legal Rptr. approach of P.2d at Baldwin changed accountability responding circumstances delay for affecting plan design specifically rejected “has as discretionary and inconsistent with the thesis of unrealistic “It is in immunity.” Task Force Comment. provided design immunity in this section tended that the perpetual.” Ibid. One can debate wisdom be implica legislative choice; readily its policy one cannot discount imposing accountability legal tions when we consider policy governmental of choices. in the initial effectuation State, immunity in speaking weather Horan v. (App.Div.1986),Judge Fritz A.2d 78 N.J.Super. precise summary: simple yet this opinion concluded his with culprit, government is immune.” is the true weather “[W]hen the absence 78. So too here. When Id. at culprit, design crossing is the true signal or the tragic of this case government is immune. The circumstances provisions of departure from the strongly so counsel the legislative response. In the may absence the Act commend a under response, find a cause of action stated such a we cannot Act. Tort Claims *9 judgment of Appellate Division is reversed and the judgment of the Law Division is reinstated.
HANDLER, J., dissenting. case,
In this railroad-crossing Appellate Division reversed grant summary judgment ground a of public- on the entity defendants had established under NJ.S.A. Being 59:4-5 and agreement Judge substantial with 245 NJ.Super. opinion, Pressler’s Division (1991), I A 2d 1359 dissent.
I Elizabeth Anne died Weiss on December when her passing through car was struck a prominent train a intersec- Borough tion in the of New Providence. On that date the equipped intersection crossing guards wаs with automatic that would have saved her life they operational. had summary judgment suggests record before us that Ms. Weiss by lightning,” was not “struck nor tragic were the accident and loss her life acceptable unavoidable and a based on reason- tradeoff; able cost-benefit ample record contains evidence support predictable the conclusion her death constructing simple, result almost decade of federally-funded system safety designed that had been approved by highest transportation policy State’s makers.
Residents New Providence hаd known since the late 1970s crossing, solely that the railroad par- which was marked with tially warning signs, flashing bells, obscured lights posed an April responding immediate hazard to drivers. accidents, passed two Borough peti- car-train a resolution tioning (DOT) Department Transportation “ap- to install propriate safety crossing. devices” at the A DOT hearing site, examiner heard testimony, agreed evaluated the Borough. with the sight The examiner found that car-to-train poor obstructions; trees, distances utility were due to *10 system; existing warning signs obscured the poles and street relatively of car and trаin traffic was and the volume both conditions, on that of hazardous the high. Based confluence warning upgrading of the examiner recommended substantial system. later, in Commissioner March the DOT
Five months upgrading plan hearing the examiner accepted proposed by the prompt- Borough and Conrail construct it and ordered that the already financed with allocated federal ly. The be Rail-Highway Aid under the Federal funds made available made, Although policy the decision was the Safety Program. allocated, plans up approved, drawn the funds and set, construction, rоughly which was scheduled to take schedule weeks, begin years. In for another seven-and-a-half six did Appellate slipped by in what the Division the interim time red-tape, history of bureaucratic characterized as “a tortuous intensity truly which is desultory dragging, and a lack foot NJ.Super. 584 A 2d 1359. Con- breathtaking.” 15, 1986, two weeks completed on December struction was killed, no from DOT had but one Elizabeth Weiss was before opera- yet placed into inspected system so it had not the gates began to function of the accident. tion at time January, only days approached early after whеn trains fatal accident. Appellate
A would reverse the Division majority of this Court signals ordinary traffic Viewing the absence judgment. crossing as causes of original design the railroad the true accident, public-entity defendants majority finds majority reaching In that result the entirely immune from suit. immunity provisions of the interpret the emphasizes the need to they conflict with the Act’s broadly Act when Tort Claims liability provisions.
II application Tort Claims concerning the State Disputes regarding questions which inevitably Act involve liability provisions Deciding best fit facts of the case. provisions requires apply whiсh best careful consideration of potentially the factors that as caused the accident well as the purpose underlying provisions. the relevant Here the defen- argued they dants were immune from based on suit two provisions of the (plan Tort Claims Act: N.J.S.A. 59:4-6 design immunity) and (immunity failure ordinary signals). reviewing record in case the Division
emphasized suggested original that no system evidence *11 signs, lights of and product “plan bells the of specific was a or design approved by governing ... the body advance ... of a public entity.” gain To of plan N.J.S.A. 59:4-6. benefit the or Act, design immunity in the Tort Claims the State must show actually that a decision was to made include or оmit the feature found to Thompson have the cause of the accident. v. Auth., 525, 534, (1987); Newark Hous. 108 531 734 N.J. Lakes, Lakes Colony Birchwood v. Club N.J. Medford 599-600, (1982). 449 A.2d the absence of evidence demonstrating original, ultimately that the and inadequate, warning system product governmental decision, was the of a surely finding the Division plan was correct in or design immunity inapplicable. to be
However, even if defendants were able prove to the warning system pursuant governmen initial was instituted to a decision, plan tal the design immunity govern or would still not immunity this case. That included in Jersey was the New Tort protect integrity Claims Act order to the of administrative policy making. Auth., Thompson supra, v. Newark Hous. N.J. at 531 A .2d Before passage of the Tort Claims this Act Court indicated that it could hold the State policy liable for the results of decisions do because to so would replace judgments of officials judges elected with those of juries: and government If the does it acts in act, when a manner short of then, ordinary judged could be in the case of a
prudence,
liability
as
So if a
private party.
design imperiling
issue of fault would
constructed of a
user,
road were
eight
four
six or
no
But whether
road should have
or
novel problem.
present
jughandles
turns,
or circles or
dividers,
or there should be
lanes,
lights,
or a
of 50 or 60 miles
hour —such
or traffic
limit
speed
per
policemen,
judgement
and revenue and
committed to
of
discretion
are
matters
involve
legislative
is
matters,
and executive branches. As to such
the question
judge
jury
could review the
of
decisions involved
whether a
policy
political
taking
those
in effect
over
of
other
responsibility
without
power
(1966).]
[Fitzgerald
v.
N.J.
desired effect
design
guessing
planning and
entities.
decisions
81, 89-90,
Ibid.;
Hoy Capelli, 48
see also
(“To
(1966)
accept a
as to the reasonableness and
jury’s verdict
prefer it over the
governmental
services and
safety
body
considered
governmental
originally
which
judgment of the
govern
be to obstruct normal
passed
on the matter would
Fote,
(quoting
7 N.Y.2d
operations.”)
mental
Weiss
167 N.E.2d
N.Y.S.2d
*12
prove
plan
design immunity the State must
its
or
To establish
specific design feature that it
by
caused
a
injury
that the
was
Thompson,
in
“there
approved.
the
stated
a
actually
As
Court
particular
that causes
guessing unless the
feature
is no second
”
plan.’
If
‘approved
in
an
feature of the
the condition was
fact
constructing public
negligently in
government entity
the
acts
safe,
design or
been
no
which otherwise would have
property
Colony Club v.
immunity applies.
Lakes
plan
Birchwood
(public
Lakes,
signals
Like the
or
immunity. N.J.S.A. 59:4-5.
ordinary
immunity
to
traffic
immunity, the
failure
public
signals
designed
protect
by
made
is
to
the decisions
Capelli, supra,
v.
Hoy
entities from court review.
In
81,
immunity
649,
case
222 A. 2d
the common-law
on which
based,
protected
emphasized
was
from
was
the Court
that what
scrutiny
governmental
to install
judicial
“a
determination
Ibid,
91,
222 A. 2d
or not to install traffic control devices.”
empha
added).
continued to
(emphasis
"Our courts have
by
is
intended
59:4-5
subject
size that the
respecting
planning-level
discretion
entity’s exercise
Transit,
Jersey
traffic control devices.”
New
Weiss
1359;
see
Aebi v. Monmouth
N.J.Super. at
584 A.2d
also
N.J.Super.
concerned, provision time system forward was not It was at 584 optional. A2d mandatory. [245 NJ.Sv.per. 1359.] Defendants cannot the immunity ordinarily benefit from protects planning regarding signals decisions because safety was to decision install the additional devices that may prevented happening. Moreover, have from accident accident, of the condition intersection the time by an not-yet-operating safety characterized essential but sys Legislative “trap.” tem a resembled Comment to N.J.S.A. legislative “liability may 59:4-4. The comments state that exist part public entity emergen failure on of a to an cy signal warning a constituting device when condition exists ‘trap’ person a using to a with highway street due care.” provision liability is pose directed toward situations that “an of injury” persons. Bergen unusual risk to such Koppe v. nal, al., supra, et 246 I N.J. at A .2d442. would not question might reach the whether defendants be liable provide emergenсy signals under N.J.S.A. for failure to warning crossing. drivers hazardous nature of the Nonetheless, it is useful to that in such note a situation as this danger public may one the to the sufficiently have been serious liability to Moreover, unavoidable warrant under 59:4-4. may duty post warning signs defendants well have had a to notifying danger during of the inherent drivers construction period. Eatontown, Borough v. 151 N.J.Super. McGowan (recurrent (App.Div.1977) nature of hazard preclude liability 59:4-4). ous did condition under N.J.S.A. sufficiently Whether the to extensive establish that unreasonably acted in implementing defendants the new safety plan an jury. issue that should be аby decided Public using public public entities streets proper owe those and other ty duty of care that is limited owed private more than that Phillipsburg, N.J.Super. property owners. Williams (App.Div.1979). Public entities are held 408 A. 2d they only policy discretionary determinations liable if the from regard protecting make With hazardous palpably to have unreasonable. conditions are found Hall, Chatman See liability provision recognizes of 59:4-2 necessarily responding dangerous conditions involves some *15 making. Legislative discretionary Comment decision See (“when public entity a exercisеs or fails N.J.S.A. determining its in what actions should or exercise discretion taken”). However, policy making not and should be because involved, immunity only partially the resource allocation are absolute, it case of provided is not as the accidents designed by public entities. planned from result conditions they Similarly, partial have when public entities a from an exercise of can that an accident resulted demonstrate competing demands. discretion in the face of may defend public entity defendants therefore themselves the they made decisions about on the basis that reasonable long delay imple that resulted in the allocation resources Brown, menting safety plan. N.J. Brown responding (1981) delay in to a 2d 493 the Court considered A. discretionary action dangerous highway condition under case, in this defen Act. As provision the Tort Claims improve an problem, had authorized dants had known of implementation. The its project, delayed had then ment but respon public entity were defendants Court reasoned that “scheduling determination demonstrating that their sible palpably project with the proceed sooner [not] “It was State’s 493. Id. at unreаsonable.” higher priority given that the items to demonstrate burden Although 432 A.2d more Id. were critical.” steps taken long chronology of bureaucratic displays record long accident, explains the DOT so why took to the little prior question safety Nonetheless devices. to build new unreasonableness palpable acted with defendants whether the State, 110 Rochinsky v. jury to determine. is one for a .2d 1029 541 A Ill apply neither of the absolute immunities Because indicates put forward substantial evidence plaintiff has unreasonably, the mo- acted defendant entities have been denied. summary judgment should tion for opinion. joins STEIN in this Justice WILENTZ, Justice reversal and remandment —Chief For CLIFFORD, POLLOCK, O’HERN and Justices GARIBALDI—5. HANDLER and STEIN—2.
For affirmance—Justices *16 CHATMAN, WIFE, PLAIN- AND SARAH HIS EDDIE CHATMAN HALL, HALL, TIFFS-APPELLANTS, VALERIE JOHN PAUL DOE(S) AND/OR ADMINIS- F-Z MAINTENANCE PERSONNEL NAMES) TRATORS, (BEING AS CONSTRUCTION FICTITIOUS JOINTLY, INDIVIDUALLY, SEVER- COMPANY/COMPANIES ALTERNATIVE, DEFENDANTS, AND ALLY IN THE AND/OR RICHARDSON, RAY, MILLER, WALTER CLARENCE WALTER DIFANTE, FOUNTAIN, AND ALBERT WILBERT JOSEPH BENJAMIN, DEFENDANTS-RESPONDENTS. Argued November 1991 Decided June