Opinion
DOCKET NO. A-2349-14T3
03-16-2016
DENISE LEJAVA and KEVIN McCLAUGHRY, Plaintiffs-Appellants, v. STATE OF NEW JERSEY, Defendant-Respondent.
Callagy Law, L.L.C., attorneys for appellants (Benjamin D. Light, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Benjamin H. Zieman, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4015-12. Callagy Law, L.L.C., attorneys for appellants (Benjamin D. Light, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Benjamin H. Zieman, Deputy Attorney General, on the brief). PER CURIAM
In this case involving a motorcycle accident in a traffic circle without lane markings (the traffic circle), plaintiffs Denise Lejava and Kevin McClaughry appeal from a November 21, 2014 order dismissing their complaint with prejudice and granting summary judgment to defendant, the State of New Jersey, based upon the plan or design immunity provisions of N.J.S.A. 59:4-6(a). Plaintiffs argued before the judge and now maintain there are genuine issues of material fact as to whether the State exercised its discretionary authority by omitting lane markings in its original plan or design of the traffic circle and a subsequent road resurfacing project (the resurfacing project).
Plaintiffs' theory of liability is that the State created a dangerous condition in the traffic circle by omitting lane markings. After review of the record and applicable law, it is clear that both parties have misinterpreted the inquiry. The question is not generally whether the State exercised its discretionary authority during the design phase of the circle or resurfacing project; rather, the determinative question is whether the State is entitled to immunity under N.J.S.A. 59:4-5 (stating "[n]either a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices") (emphasis added). We therefore reverse the order without prejudice and permit the parties to more fully develop the record as to whether the State is entitled to immunity pursuant to N.J.S.A. 59:4-5.
I.
We discern the following facts, drawing all reasonable inferences in favor of plaintiffs, as we must on a motion for summary judgment. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535 (1995) (quoting Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)). In October 2011, McClaughry operated a motorcycle traveling south on Route 34. Lejava was his passenger. Plaintiffs planned to enter the traffic circle and then continue on Route 34. Another driver, operating a sedan, entered the circle in front of the motorcycle. As plaintiffs attempted to pass the sedan — anticipating it would exit the traffic circle onto Route 34 South — the other driver veered left continuing around the traffic circle. Because there were no lane markings, the sedan crossed in front of the motorcycle, striking the front tire and causing plaintiffs to be ejected from the motorcycle.
Plaintiffs produced an expert report from Dr. Dennis R. Andrews, who rendered an opinion "within a reasonable degree of accident reconstruction and roadway markings certainty" that the width of the roadway in the circle could have been demarcated by lane markings. In his addendum report, Dr. Andrews stated:
Striping is a major concern in traffic circle safety and collisions. No striping creates confusion as to which lane a driver is able to use to make a desired movement
and how many lanes the circle actually contains. The lack of striping forces the drivers to vie for positions in the circle which leads to sideswipe collisions particularly at divergence.
In discovery, the State produced an accident reconstruction expert report from Gary K. Anderson, P.E., who focused on the resurfacing project. He opined that "[t]he roadway configuration . . . was consistent with the [1993] [New Jersey Department of Transportation (NJDOT)] As-Built [resurfacing] [p]lans [(the As-Built plans)]."
The State moved for summary judgment contending it was entitled to plan or design immunity under N.J.S.A. 59:4-6(a). In support of its motion, the State produced the As-Built plans for the resurfacing project. The State provided the motion judge with a certification from a manager for the Traffic Engineering Bureau (the traffic manager) for the NJDOT, who certified that the traffic circle was first constructed in 1953 and "[t]he Route 34 As-Built [plans] specifically took into consideration the issue of lane markings ('traffic striping plans') for the . . . traffic circle."
Plaintiffs opposed the motion, arguing the State failed to produce the original design plans for the traffic circle and the resurfacing project, as well as any reliable information in those original designs that the State consciously considered and rejected using lane markings. Plaintiffs argued the State's approval of the As-Built plans related solely to improvements made decades after the circle was designed.
The judge conducted oral argument and rendered an oral opinion. He concluded the State was entitled to summary judgment based upon the plan or design immunity provisions of N.J.S.A. 59:4-6(a). In fairness to the judge, the parties focused primarily on N.J.S.A. 59:4-6(a) rather than N.J.S.A. 59:4-5.
On appeal, plaintiffs reiterate their contention that genuine issues of material fact defeat the grant of summary judgment to the State. The parties remain focused on whether the motion judge properly applied the summary judgment standard in concluding that defendant was entitled, as a matter of law, to the plan or design immunity afforded by N.J.S.A. 59:4-6(a). That section of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, provides:
Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, either in its original construction or any improvement thereto, where such plan or design has been approved in advance of the construction or improvement by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is
prepared in conformity with standards previously so approved.Plaintiffs are not challenging the State's plan or design of the traffic circle or resurfacing project. They simply allege the absence of lane markings contributed to the accident.
[N. J.S.A. 59:4-6(a).]
Under the TCA, a public entity is immune from liability for injury resulting from a failure to provide ordinary traffic signals or markings. N.J.S.A. 59:4-5. Thus, liability does not attach to a public entity where the condition causing the injury is an absence of lane markings. See Weiser v. Cnty. of Ocean, 326 N.J. Super. 194, 202 (App. Div. 1999) (quoting N.J.S.A. 59:4-5) (discussing immunity from liability under N.J.S.A. 59:4-5 applies to failure to paint lane markings); Pandya v. State, Dept. of Transp., 375 N.J. Super. 353, 369 (App. Div. 2005) (recognizing this immunity extends to the State).
On this record, it appears the traffic circle never contained lane markings. Although plaintiffs cite a history of accidents at the traffic circle, the State's delay in implementing lane markings does not defeat the immunity provision of N.J.S.A. 59:4-5. See Weiss v. N.J. Transit, 128 N.J. 376, 379 (1992) (indicating a public entity was immune despite a "tortuous" eight-year delay in installing a "traffic light at a notoriously dangerous railroad crossing"). On remand, the State may renew its summary judgment motion invoking N.J.S.A. 59:4-5. We take no position as to the likelihood of success of such a renewed motion.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION