Lead Opinion
The opinion of the Court was delivered by
Onсe again we are required to resolve the proper relationship between the liability and immunity provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3. The facts of this case are set forth in the reported decision of the Appellate Division. 245 NJ.Super. 265,
But eleven days before the traffic light at a notoriously dangerous railroad crossing became operational, plaintiffs decedent lost her life when a train struck her car as it crossed the tracks. Her survivors sued, claiming that the dangerous condition of the property under N.J.S.A. 59:4-2, the failure to provide emergency warning signals under N.J.S.A. 59:4-4, and defendants’ failure to act reasonably when undertaking to cure a known danger had caused her fatal injury. The public bodies defended by relying on the legislative grant of immunity for failure to place a traffic signal under N.J.S.A. 59:4-5 and plan or design immunity under N.J.S.A. 59:4-6. The Law Division agreed with the public bodies and dismissed the plaintiff’s complaint.
On appeal, the Appellate Division reversed, holding that the immunity under N.J.S.A. 59:4-5 did not apply because the true cause of the dangerous condition was not the absence of the traffic light but rather the independent negligence of the public bodies in delaying the implementation of a plan to install the traffic signal. The panel found that the design and plan immunity did not apply to this case because that immunity applied to the original plan or design, not the plan for the improvement. 245 N.J.Super. at 273, 584 A 2d 1359. The Appellate Division emphasized what it described as a “tortuous [eight-year] history of bureaucratic red-tape.” 245 NJ.Super. at 270, 584 A 2d 1359. The argument has a powerful logic. Surely were it not for the delay, Elizabeth Ann Weiss would not have tragically died at this grade crossing. But the argument
To state the principles applicable to such an action is easy. See Rochinsky v. State, 110 N.J. 399,
It is appealing to think that the true cause of this accident was the bureaucratic delay and not the absence of a traffic signal. Had the light been operational eleven days earlier, Elizabeth Ann Weiss almost certainly would be with us today. But the injured motorist in Pico v. State, 116 N.J. 55,
In Bombace v. City of Newark, 125 N.J. 361,
Were there any other triable issue of independent negligence — for example, had the underbrush that obscured visibility at the crossing been on defendants’ property and subject to their maintenance, or had there been any other condition of the property that caused the dangerous condition to exist, e.g., a pothole of long duration, an oil spill on the roadway, or a broken traffic light, Bergen v. Koppenal, 52 N.J. 478, 246 A.2d 442 (1968), the complaint might have stated a cause of action. Rochinsky, supra, 110 N.J. at 416,
Plaintiff argues that the Tort Claims Act is meant to insulate only high-level policy decisions of government because only judicial review of such decisions implicates the separation-of-powers doctrine. See Costa v. Josey, 83 N.J. 49, 55-56,
The failure to send out the road sanders in Pico, supra, 116 N.J. 55, 560 A 2d 1193, might also have been classified as a low-level administrative decision rather than a “political decision,” but we found that the express immunity for weather conditions prevailed over the negligent delay in dispatching the sanders. We have been adjured by the framers of the Tort Claims Act that we should approach these cases from the perspective that immunity is thе dominant theme of the Act.
In the absence of a comprehensive statute the New Jersey Supreme Court ha[d] developed the analytical approach that courts “ought not to be ... asking why immunity should not apply in a given situation but rather ... asking whether there is any reason why it should apply.” B.W. King, Inc. v. West New York,49 N.J. 318 , 325,230 A.2d 133 (1967). This approach is no longer necessary in light of this comprehensive Tort Claims Act. Rather the approach should be whether an immunity applies and if not, skould liability attach. It is hoped that in utilizing this approach the courts will exercise restraint in the acceрtance of novel causes of action against public entities. [N.J.S.A. 59:2-1 Task Force Comment.]
In this case, because an immunity applies, liability does not attach.
Plaintiff also argued that the public entities are liable under N.J.S.A. 59:4-4 for failure to provide “emergency” devices needed to warn of a dangerous condition harmful to the safe movement of traffic that would not be apparent to one using due care. We are unable to agree. That exception applies to conditions that are “sudden, unexpected [or] emergent.” Spin Co. v. Maryland Casualty Co., 136 N.J.Super. 520, 524,
Because the fundamental thesis of plaintiffs case is that the delay in implementing the policy-level decision of the Commissioner erases immunization for failure to post a traffic signal, we do not address the complex issue of whether partial plan and design immunity was afforded to certain defendants for features of the new plan that were subject to their control and in place. For example, New Jersey Transit Rail Operations (incorrectly denominated as New Jersey Rail Operations) asserts that all that it could do had been done, e.g., new cross-bucks and flashers were in place and operational, but that DOT and the municipality had exclusive control of the traffic signals. We believe it best to view the matter as the Appellate Division did — that this was not yet an operational plan. Thus, although we agree with our dissenting members that in order to avail itself of the plan or design immunity under N.J.S.A. 59:4-6, the public entity must demonstrate that the specific design or plan detail alleged to constitute the dangerous condition was itself the subject of prior approval or prior approved standards, see Thompson v. Newark Housing Authority, 108 N.J. 525, 534, 537,
On the issue of holding the public entity accountable for delay in effectuating the installation of the traffic signal, we take account of our analogous policy with respect to the effect
In speaking of the weather immunity in Horan v. State, 212 N.J.Super. 132,
Notes
But see Shore v. Housing Auth. of Harrison, 208 N.J.Super. 348, 352-53, 506 A.2d 16 (App.Div.1986) (court refused to accept defendant’s argument that “ ‘goofing off while on the job is tantamount to failure to provide sufficient police protection in the terms of N.J.S.A. 59:5-4”).
Dissenting Opinion
dissenting.
In this railroad-crossing case, the Appellate Division reversed a grant of summary judgment on the ground that the public-entity defendants had not established immunity under NJ.S.A. 59:4-5 and 59:4-6. Being in substantial agreement with Judge Pressler’s Appellate Division opinion, 245 NJ.Super. 265, 584 A 2d 1359 (1991), I dissent.
I
Elizabeth Anne Weiss died on December 29, 1986, when her car was struck by a train passing through a prominent intersection in the Borough of New Providence. On that date the intersection was equipped with automatic crossing guards that would have saved her life had they been operational. The summary judgment record before us suggests that Ms. Weiss was not “struck by lightning,” nor were the accident and tragic loss of her life unavoidable and acceptable based on a reasonable cost-benefit tradeoff; the record contains ample evidence to support the conclusion that her death was the predictable result of almost a decade of delay in constructing a simple, federally-funded safety system that had been designed and approved by the State’s highest transportation policy makers.
Residents of New Providence had known since the late 1970s that the railroad crossing, which was marked solely with partially obsсured warning signs, flashing lights and bells, posed an immediate hazard to drivers. In April 1978, responding to two car-train accidents, the Borough passed a resolution petitioning the Department of Transportation (DOT) to install “appropriate safety devices” at the crossing. A DOT hearing examiner heard public testimony, evaluated the site, and agreed with the Borough. The examiner found that car-to-train sight distances were poor due to obstructions; that trees, utility
Five months later, in March 1979, the DOT Commissioner accepted the upgrading plan proposed by the hearing examiner and ordered that the Borough and Conrail construct it promptly. The plan was to be financed with already allocated federal funds made available under the Federal Aid Rail-Highway Safety Program. Although the policy decision was made, the plans drawn up and approved, the funds allocated, and a schedule sеt, construction, which was scheduled to take roughly six weeks, did not begin for another seven-and-a-half years. In the interim time slipped by in what the Appellate Division characterized as “a tortuous history of bureaucratic red-tape, desultory foot dragging, and a lack of intensity which is truly breathtaking.” 245 NJ.Super. at 270, 584 A 2d 1359. Construction was completed on December 15, 1986, two weeks before Elizabeth Weiss was killed, but no one from DOT had inspected the system so it had not yet been placed into operation at the time of the accident. The gates began to function when trains approаched in early January, only days after the fatal accident.
A majority of this Court would reverse the Appellate Division judgment. Viewing the absence of ordinary traffic signals and the original design of the railroad crossing as the true causes of the accident, the majority finds the public-entity defendants entirely immune from suit. In reaching that result the majority emphasizes the need to interpret the immunity provisions of the Tort Claims Act broadly when they conflict with the Act’s liability provisions.
II
Disputes concerning the application of the State Tort Claims Act inevitably involve questions regаrding which immunity and
In reviewing the record in the case the Appellate Division emphasized that no evidence suggested that the original system of signs, lights and bells was the рroduct of a specific “plan or design ... approved in advance by ... the governing body of a public entity.” N.J.S.A. 59:4-6. To gain benefit of the plan or design immunity in the Tort Claims Act, the State must show that a decision was actually made to include or omit the feature found to have been the cause of the accident. Thompson v. Newark Hous. Auth., 108 N.J. 525, 534,
Howevеr, even if defendants were able to prove that the initial warning system was instituted pursuant to a governmental decision, the plan or design immunity would still not govern this case. That immunity was included in the New Jersey Tort Claims Act in order to protect the integrity of administrative policy making. Thompson v. Newark Hous. Auth., supra, 108 N.J. at 534,
If the government does act, then, when it acts in a manner short of ordinary prudence, liability could be judged as in the case of a private party. So if a*389 road were constructed of a design imperiling the user, the issue of fault would present no novel problem. But whether a road should have four or six or eight lanes, or there should be dividers, or circles or jughandles for turns, or traffic lights, or traffic policemen, or a speed limit of 50 or 60 miles per hour — such matters involve discretion and revenue and are committed to the judgement of the legislative and executive branches. As to such matters, the question is whether a judge or jury could review the policy of political decisions involved without in effect taking over the responsibility and power of those other branches. [Fitzgerald v. Palmer, 47 N.J. 106, 109-10,219 A.2d 512 (1966).]
The Legislature’s decision to include a complete immunity for injuries caused by the plan or design of public property was based on Fitzgerald and the separation of powers concerns it raised. The authors of the immunity provision explained that it was “prompted by the fact that approval of plans or designs is peculiarly a function of the executive or legislative branch of government.” Legislative Comments to N.J.S.A. 59:4-6. The desired effect of the immunity is to prevent courts from second-guessing the planning and design decisions of public entities. Ibid.; see also Hoy v. Capelli, 48 N.J. 81, 89-90,
To establish its plan or design immunity the State must prove that the injury was caused by a specific design feature that it actually approved. As the Court stated in a Thompson, “there is no second guessing unless the particular feature that causes the condition was in fact an ‘approved feature of the plan.’ ” If the government entity acts negligently in constructing public property which otherwise would have been safe, no design or plan immunity applies. Birchwood Lakes Colony Club v. Medford Lakes, supra, 90 N.J. at 598,
At the time of the accident the approved design was in place; all that remained was to start up the gate system. There is no claim that that design was inadequate because it failed to protect against a particular danger. If that were the case, the plan or design immunity would apply. Here, the accident was caused not by a flaw in the design, which was complete by 1979, although later modified, but by the inordinate delay in effectuating the design. See Costa v. Josey, supra, 83 N.J. at 59-60,
The public-entity defendants also rely on the ordinary-traffic signals immunity. N.J.S.A. 59:4-5. Like the plan or design immunity, the immunity for failure to provide ordinary traffic signals is designed to protect the decisions made by public entities from court review. In Hoy v. Capelli, supra, 48 N.J. 81,
As in the case of the plan or design immunity, the ordinary traffic signal immunity does not apply when the accident arises not as a result of making or not making a determination but rather as a result of the failure to implement a determination. Shuttleworth v. Conti Constr. Co., Inc. 193 N.J.Super. 469, 473,
Obviously, we are dealing here with the maintenance of a known dangerous condition long after the discretionary decision was made to upgrade the*392 warning system for a hazardous railroad crossing. More significantly, the discretionary decision was made on a high governmental level by the Commissioner of DOT. There was absolutely nothing discretionary in the obligation of the borough, the railroad, and DOT staff to comply with the Commissioner’s remedial order of March 1979. Insofar as thеse public agencies and entities are concerned, the provision of the upgraded warning system from that time forward was not optional. It was mandatory. [245 NJ.Sv.per. at 275,584 A2d 1359 .]
Defendants cannot benefit from the immunity that ordinarily protects planning decisions regarding traffic signals because the decision was to install the additional safety devices that may have prevented the accident from happening. Moreover, the condition of the intersection at the time of the accident, characterized by an essential but not-yet-operating safety system resembled a “trap.” Legislative Comment to N.J.S.A. 59:4-4. The legislative comments state that “liability may exist for failure on the part of a public entity to provide an emergency warning signal or device when a condition exists constituting a ‘trap’ to a person using a street or highway with due care.” The liability provision is directed toward situations that pose “an unusual risk of injury” to such persons. Bergen v. Koppenal, et al., supra, 52 N.J. at 480,
Whether the delay was sufficiently extensive to establish that the defendants acted unreasonably in implementing the new safety plan is an issue that should be decided by a jury. Public entities owe those using public streets and other public propеrty a duty of care that is more limited than that owed by private
Similarly, public entities have a partial immunity when they can demonstrate that an accident resulted from an exercise of discretion in the face of competing demands. N.J.S.A. 59:2-3. The public entity defendants therefore may defend themselves on the basis that they made reasonable decisions about the allocation of resources that resulted in the long delay in implementing the safety plan. In Brown v. Brown, 86 N.J. 565,
Ill
Because neither of the absolute immunities apply and the plaintiff has put forward substantial evidence that indicates that the defendant public entities acted unreasonably, the motion for summary judgment should have been denied.
Justice STEIN joins in this opinion.