NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1645-19
I'ASIA MORELAND, individually and as the Administratrix of the estate of I'MAYA MORELAND, I'ASIA MORELAND, Guardian Ad Litem on behalf of I'ZHIR MORELAND, and VALARIE BENNING,
Plaintiffs-Appellants,
v.
Estate of WILLIAM PARKS, RONALD HUBSCHER, JR., ALBERT DINATALE, BENITO BELLO, CITY OF TRENTON, SOVEREIGN BANK ARENA, n/k/a SUN BANK ARENA, and GLOBAL SPECTRUM,
Defendants,
and
COUNTY OF MERCER, MERCER COUNTY IMPROVEMENT AUTHORITY, and STATE OF NEW JERSEY, Defendants-Respondents. _____________________________
Argued June 3, 2021 – Decided December 28, 2021
Before Judges Ostrer, Accurso, and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0227-11.
Robin Kay Lord argued the cause for appellants (Robin Kay Lord, attorney; Robin Kay Lord and Clifford Bidlingmaier, on the brief).
Paul R. Adezio, Mercer County Counsel, argued the cause for respondent County of Mercer.
Melissa J. Brown argued the cause for respondent Mercer County Improvement Authority (Marks, O'Neill, O'Brien, Doherty & Kelly, PC, attorneys; Melissa J. Brown, on the brief).
Justine M. Longa, Deputy Attorney General, argued the cause for respondent State of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sookie Bae, Assistant Attorney General, of counsel; Jessica A. Sampoli, Deputy Attorney General, on the brief).
PER CURIAM
This is the second time we've considered claims arising out of the tragic
death of two-year-old I'Maya Moreland crossing Route 129 holding hands with
her family on their way to see Disney on Ice at the Sovereign Bank Arena in
Trenton in January 2009. Three years ago, we reversed on interlocutory appeal
A-1645-19 2 a summary judgment dismissing a Portee1 claim brought by plaintiff Valarie
Benning, I'Maya's mother's then-partner and now wife, holding Benning
presented sufficient evidence from which a jury could find Benning was a de
facto mother to I'Maya "and felt her loss as deeply as any parent facing that
horrific event." Moreland v. Parks, 456 N.J. Super. 71, 86 (App. Div. 2018).
Now plaintiff I'Asia Moreland, I'Maya's mother, individually, as the
administratrix of I'Maya's estate, and as guardian ad litem of I'Maya's brother
I'Zhir Moreland, and Benning appeal from a final summary judgment dismissing
their tort claims against the County of Mercer, the Mercer County Improvement
Authority (MCIA) and the State of New Jersey. Because we agree with the trial
court the Tort Claims Act, N.J.S.A. 59:1-1 to 13-10, shields these governmental
entities from liability for this accident, we affirm.2
1 Portee v. Jaffee, 84 N.J. 88 (1980). 2 Plaintiffs also appeal from summary judgment on counts fourteen (Civil Rights) and fifteen (Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)), alleging defendants violated their constitutional rights to equal protection and substantive due process by the condition of the roadway, their failures to provide adequate training and safety devices, and to have adequate policies and procedures for responding to emergencies and should thus be liable under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c). In their appellate brief, plaintiffs characterize these counts as "constitutional claims advancing theories of State Created Danger and Supervisory Liability against the municipal defendants" (emphasis added). Plaintiffs' settlement with the municipal
A-1645-19 3 There is no dispute about how this horrible accident happened. Moreland
and Benning were taking I'Maya, her five-year-old brother I'Zhir, along with
Benning's godson Armanti Martinez, also five years old, to see Disney on Ice.
The show started at 7 p.m., and they arrived a few minutes late, parking in the
free lot for the River Line. The family walked down Hamilton Avenue to cross
over to the Arena at State Route 129, a four-lane, north/south highway, having
two lanes running in each direction, separated by a median. Holding hands, they
crossed the northbound lanes, stopping on the median to let an approaching fire
truck pass.
The fire truck — which most observers said had its siren on and lights
flashing — did not pass. It was headed south on Route 129 in the left lane,
defendants bars any claims against those defendants in this court. Kelleher v. Lozzi, 7 N.J. 17, 26 (1951). To the extent counts fourteen and fifteen sound against respondents, plaintiffs advance no argument explaining how the County, the MCIA or the State deprived them of their substantive constitutional rights by the derelictions they allege, contending only that the trial court erred in dismissing those counts by failing to adequately address the merits of their claims under Rule 1:7-4(a). "Parties are required to make an adequate legal argument" in support of the issues they raise. 700 Highway 33 LLC v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011). Because plaintiffs have not argued how their constitutional rights to equal protection or substantive due process were violated, and no cogent theory of liability presents itself to us, we do not consider the issue and deem it waived. See Weiss v. Cedar Park Cemetery, 240 N.J. Super. 86, 102 (App. Div. 1990) (noting the failure to adequately brief an issue permits the court to treat it as waived). A-1645-19 4 trying to get to an accident to the north on Route One. The driver, Ronald
Hubscher, decided the quickest way to the scene was to make an illegal U-turn
at Hamilton Avenue. But owing to the size of the rig, Hubscher couldn't get the
pumper truck around from the left lane. He thus slowed down and moved over
into the right lane to make a sweeping left turn across Hamilton Avenue and into
the Route 129 northbound lanes. Driving behind Hubscher in a white pickup
truck was William Parks. Parks, sixty-seven years old, whose license had been
recently suspended for drunk driving, saw the fire truck slow down and move
right, for what he anticipated would be a right turn. Parks was driving past the
firetruck on the left — about to pass in front of the Moreland family on the other
side of Hamilton Avenue — when the fire truck swung back and veered into
him. The heavy fire truck pushed the pickup left and sent it careening across
Hamilton Avenue and down the Route 129 median, striking and killing I'Maya
and bringing down a light pole.3
Plaintiffs' accident reconstruction expert concluded Hubscher's reckless,
illegal left turn in front of Parks was the proximate cause of the accident.
3 Benning's godson suffered fractures of both legs when the light pole came down on him. He is not a part of this suit. Although the pickup must have passed within inches, if not centimeters, of the rest of the family, and its force knocked at least Benning to the ground, no one else was struck. All, of course, have suffered unimaginable anguish from this awful tragedy. A-1645-19 5 Trenton police deemed the cause of the crash to be Parks' failure to keep back
300 feet while following a fire truck responding to an emergency as required by
N.J.S.A. 39:4-92(b) and driving while his license was suspended. Neither found
anything about the roadway or the intersection contributed to the happening of
the accident or attributed any fault to the State, the County, or the MCIA, owner
of the Arena. Plaintiffs, who have since settled their claims against the City and
both drivers,4 claim the Hamilton Avenue/Route 129 intersection was in a
dangerous condition of which the State, the County and the MCIA were all
aware, and that the failure to have constructed the Arena without a pedestrian
footbridge over Route 129, or taken other steps to protect them from the known
dangerous condition, caused I'Maya's death. All three defendants assert a
variety of immunities under Title 59 shield them from liability.
We briefly summarize the material, undisputed facts on the summary
judgment motions. Route 129, which, as already noted, is a four-lane divided
highway, is owned by the State. It has a speed limit of forty miles per hour. It
was last reconstructed in the mid-1990s under the auspices of the Department of
4 Parks, who had no alcohol in his system at the time of the accident, pleaded guilty to causing death while driving with a suspended license and received a probationary sentence. He died in 2017. His estate contributed $225,000 to a settlement with plaintiffs in the gross amount of $2,300,000. The City of Trenton contributed the remaining $2,075,000. A-1645-19 6 Transportation. A pedestrian footbridge at Hamilton Avenue was not a part of
the approved design. Construction was completed in 1995, with the
Department's resident engineer certifying the road "as built" had been
constructed in conformity with the plans.
Most of Hamilton Avenue is owned by the County. The State, however,
owns and maintains that stretch of the road in Trenton from South Broad Street
to Route 129. All agree the State is solely responsible for the Hamilton
Avenue/Route 129 intersection where the accident occurred. In that regard, the
State implemented new traffic signal timing for the intersection in 2007, and
there is no record of any change through the date of the accident. The time for
pedestrians to cross the roadway was consistent with federal and State standards,
as was the width of the crosswalk. The four-foot-wide pedestrian island between
the north and south lanes of Route 129 met the minimum width standard.
Plaintiffs' traffic expert opined the intersection was "clearly a significant
congestion point during arena events" and "[b]ased on crowd size during events,
wider crosswalks may be warranted." He also noted the steps the MCIA took
in 1998, before the Arena opened, to design a pedestrian footbridge to cross
Route 129 south of the intersection to connect with the then proposed light rail
station — now the Hamilton Avenue Station for the River Line where plaintiffs
A-1645-19 7 parked the night of the accident. In the expert's view, a footbridge to the south
would remove "pedestrian movements from the intersection" and thus "could
free up geometry and time from the signal timings to provide intersection
operation more suitable for the surge of movements that occur during events."
He noted despite the "many recommendations and warnings regarding the
potentially unsafe nature of this roadway," the footbridge was never built . He
concluded the "failure to act on identified safety concerns that existed on the
section of Route 129, in the vicinity of the Arena, and at the intersection of
Route 129 and Hamilton Avenue was unreasonable and did not protect the public
welfare."
The MCIA began planning the design of the Arena in 1997. During the
ensuing two years of development and construction, the MCIA, the City of
Trenton, the County and the State all considered traffic and parking issues for
the site. Among the issues they discussed was the potential for conflicts between
vehicular and pedestrian traffic at the intersection of Route 129 and Hamilton
Avenue. The MCIA undertook a traffic study and considered a variety of traffic
control measures, including the placement of traffic control officers at the
intersection; a special traffic signal timing plan during Arena events; signage to
alert motorists of Arena events, the presence of pedestrians, and available
A-1645-19 8 parking lots; the installation of new striping and pedestrian signals in order to
channel pedestrians to appropriate crossings; and the installation of rumble
strips on the approaches to the traffic signal and pedestrian crossing. The MCIA
also hired an engineering firm to design a pedestrian bridge over Route 129,
consulting and agreeing with the County on the design.
In January 1998, the City's planning board approved the MCIA's plans for
the construction of the Arena subject to the recommendations of its planning
staff, including that the MCIA "further explain the plans and scheduling for the
Route 129 pedestrian bridge" and that "[f]urther measures to protect pedestrians
crossing Hamilton Avenue and Route 129 from satellite parking lots shall be
implemented." Mercer County subsequently approved the MCIA's plans for the
Arena in May 1998, conditioned on necessary approvals from the Department
of Transportation.
The Department of Transportation, however, never approved a pedestrian
bridge over Route 129. The Department's Division of Project Management
wrote to the County's chief of planning in June 1998 that "[t]here is no precedent
for a bridge of this type over a State Highway." The letter also noted the "non-
structural tower and cable system appear to be a potential long term maintenance
issue as well as an attractive nuisance," and asked "[w]hat agency, other than
A-1645-19 9 the NJDOT, is responsible for maintenance, safety and inspection issues
regarding this structure?" The Department advised it would "need written
documentation outlining the entity responsible for maintaining the structure ."
The writer complained "NJ Transit has informed us the MCIA will be
responsible for maintaining the structure and the MCIA has told us NJ Transit
will maintain it" and that the subject needed "closure." The idea of a pedestrian
bridge spanning Route 129 and linking the Hamilton Avenue light rail station
with the Arena ultimately died because none of the concerned public entities
was willing to bear the cost of maintaining the structure.
After the Arena opened in 1999, concerns about the safety of the
intersection persisted. Chief of Enforcement for the MCIA wrote to the manager
of the Bureau of Traffic Engineering at the Department of Transportation in
April 2000 about traffic exiting Route 1 to Route 129, especially when the Arena
was hosting events where pedestrians would be crossing the highway at the
Route 129/Hamilton Avenue intersection. The problem was drivers on the exit
ramp were unable to see traffic congestion ahead due to a crest on the ramp,
creating "a potentially dangerous condition" and prompting the MCIA to ask
whether the State could install a warning device to advise motorists of "stopped
traffic ahead" and to proceed cautiously.
A-1645-19 10 The State did not install the requested warning sign and continued to reject
the idea of a pedestrian bridge over Route 129. By letter to New Jersey Transit
in early 2002, the Department of Transportation again reiterated the advice it
had previously provided both Transit and the MCIA that the Department was
"not going to take any responsibility for the proposed pedestrian bridge at
Hamilton Avenue," and "[n]o permits will be issued for this work until the
Department has received documentation on the jurisdictional control of the
proposed structure."
The Arena has a capacity of over 10,000 persons and the MCIA provides
parking, for a fee, near the Arena and in some remote lots. As the owner of the
Arena, the MCIA is responsible for parking, traffic safety, and security for
Arena events. It contracts with both the Trenton Police Department and the
Mercer County Sheriff's Office to provide officers to handle traffic safety and
patrol the area during Arena events. For the Disney on Ice show, the MCIA
contracted with the Trenton Police Department for officers; no sheriff's officers
were present for the event.
The MCIA codes events at the Arena by the number of expected attendees.
The Disney on Ice show in January 2009 was considered a "code four" event,
A-1645-19 11 meaning the MCIA expected fewer than 3,000 attendees.5 For code four events,
the MCIA contracts for five officers and one supervisor for traffic control and
event security.
Ordinarily, an officer would not be assigned to the Route 129/Hamilton
Avenue intersection for a code four event. Although some pedestrians might
cross Route 129 to attend such an event, fewer people were expected to do so
because Lot 5, the remote parking lot operated by the MCIA that would require
patrons to cross Route 129, was not open for code four events. That lot was
open only when the MCIA expected more than 8,000 people at the Arena. On
the night of the Disney on Ice show, the remote lot was closed. Lot 1, the lot
located adjacent to the north side of the Arena, across Hamilton Avenue, was
open and not full.
Although a code four event did not call for an officer to be stationed at the
Route 129/Hamilton Avenue intersection, the supervisor in charge on the night
of the accident, Trenton police sergeant Albert Dinatale, assigned Sergeant
Benito Bello to control or "run" the light there due to traffic conditions. 6
5 Actual attendees exceeded that figure. Between 3,300 and 3,500 people were estimated to have attended the show that night. 6 Plaintiffs sued both Dinatale and Bello in this suit, both of whom were dismissed on summary judgment. Plaintiffs have not appealed the dismissal of their claims against either officer. A-1645-19 12 Dinatale stationed himself at the intersection as well, to assist Bello and, if
necessary, to help cross pedestrians — although neither Bello nor Dinatale
recalled there being any pedestrian traffic that evening. Dinatale explained at
his deposition that ninety percent of vehicular traffic for Arena events came
through the Route 129/Hamilton Avenue intersection. Accordingly, he believed
it necessary for an officer to run the lights at the intersection in order to keep
traffic moving and to protect pedestrians even for lightly attended events.
At 6:50 p.m., Dinatale observed little traffic at the intersection, so he
directed Bello to stop running the light. Thereafter, the two remained at the
intersection until approximately 7:00 p.m., when Dinatale heard music coming
from the Arena, indicating to him the show was starting. Dinatale and Bello
drove to the main gate, communicating by radio and in person with the other
officers about what they were observing at their locations. With no late arrivals
observed by any of the officers reporting, Dinatale told the officers they could
move to their secondary posts. As Dinatale and Bello neared the entrance to the
Arena to report to their own secondary posts, they heard the crash, which
occurred at 7:03 p.m., and ran back to the intersection to render aid.
Plaintiffs' expert in public assembly risk management opined the MCIA's
coding system was inadequate, and there was insufficient coordination between
A-1645-19 13 the Arena, officers, and the City, including the fire department. He claimed the
"officers could have easily utilized safety techniques to provide a safer
environment for those crossing busy roadways." Although noting there was "no
specific industry standard" for when redeployment should occur, he claimed to
have "never seen or heard of redeployment at the exact start or even before an
event started." In his opinion, Dinatale's decision to redeploy officers from the
Route 129/Hamilton Avenue intersection, without accounting for late-arriving
patrons, "represent[ed] a major flaw in the deployment process as officers
should not have left the intersection for at least 15 minutes after the show
started."
The expert concluded defendants "knew the intersection was dangerous,"
and "they needed a police presence to protect patrons," yet "did not properly
develop/deploy a plan that met the known need[;] personnel were redeployed at
inappropriate times, and the plan was inappropriate from the very beginning ."
He claimed all of those elements contributed "to an unsafe environment"
resulting in I'Maya's death.
After hearing several hours of argument, the judge rendered an opinion
from the bench granting these defendants summary judgment. After recapping
the facts adduced on the motions and reviewing the parties' claims and defenses,
A-1645-19 14 the judge applied the law to the undisputed facts and concluded all of plaintiffs'
tort claims against the State, the County, and the MCIA were barred by various
provisions of the Tort Claims Act.
Specifically, the court found that to the extent plaintiffs complained about
the absence of police to cross them at the Route 129/Hamilton Avenue
intersection, their claims were barred by police protection immunity under
N.J.S.A. 59:5-4. Acknowledging that plaintiffs insisted they were "not alleging
failure to provide police protection," the judge found "it seems clear that they
are" alleging precisely that, noting plaintiffs' reliance on the report of their
public assembly risk management expert, who "criticized the deployment of the
officers and safety techniques the officers failed to utilize." The judge found
plaintiffs' claims analogous to the ones asserted by the plaintiffs in Rodriguez
v. New Jersey Sports & Exposition Authority 193 N.J. Super. 39 (App. Div.
1983), that we found barred by N.J.S.A. 59:5-4.
The judge also rejected plaintiffs' argument "that even if the cause of
action was interpreted as a failure to provide police protection, immunity under
59:5-4 would not apply" because "defendants here left the plaintiff stranded on
the highway," finding it undisputed that Dinatale and Bello departed the
intersection "before the family came along." The judge concluded "[t]he . . .
A-1645-19 15 MCIA, contracted with the . . . Trenton Police Department to provide security
services [at the Arena], although plaintiffs argue otherwise. They are essentially
arguing enough police protection was not provided and, as such, there is absolute
immunity under 59:5-4." Alternatively, the judge found the MCIA had
discretionary immunity with respect to its allocation of security personnel under
N.J.S.A. 59:2-3(d), and nothing in the record, including plaintiffs' public
assembly risk management expert's report, supported a conclusion that the
MCIA's exercise of discretion was palpably unreasonable.
The judge likewise found plaintiffs' claims premised on the failure to
provide warning signs was barred by the traffic signal immunity provided under
N.J.S.A. 59:4-5. The judge rejected their claims that 59:4-4, the section of the
Act making public entities liable for injuries proximately caused by the "failure
to provide emergency signals, signs, markings or other devices" if necessary to
warn of a dangerous condition endangering the safe movement of traffic and not
reasonably apparent to, or anticipated by, a person exercising due care, was
applicable here. The judge found "an intersection with a pedestrian crossing"
did not constitute an emergency that would displace the immunity to which
public entities were entitled "for an injury caused by the failure to provide
ordinary traffic signals, signs, markings or other similar devices" under 59:4-5.
A-1645-19 16 The judge further found plaintiffs' claims premised on the failure to
construct a pedestrian bridge over Route 129 were barred by plan or design
immunity under N.J.S.A. 59:4-6, as it was undisputed the State constructed
Route 129 according to the plans, which plainly did not include a pedestrian
bridge. The judge also found plan or design immunity with respect to
construction of the Arena. The judge found it irrelevant that the City's planning
board had approved plans to construct the Arena that included a pedestrian
bridge because it was undisputed the Department of Transportation would have
to approve any such bridge, and the Department never issued any approval.
The judge also found defendants entitled to discretionary immunity under
N.J.S.A. 59:2-3 with respect to the failure to construct a pedestrian bridge,
rejecting plaintiffs' claim the immunity did not apply because the decision not
to build the bridge was "operational and not policy-based and, as such
defendants must show the decision was made in the face of competing demands
and its determination was not palpably unreasonable." The judge found the
public entity defendants' decisions to decline to assume responsibility for
maintenance of the proposed pedestrian bridge are precisely the sort of
discretionary decisions immunized under 59:2-3, and the State's refusal to issue
A-1645-19 17 a permit for its construction obviated the need for any showing under the
palpably unreasonable standard.
Finally, the court rejected plaintiffs' contention that defendants could be
held liable under N.J.S.A. 59:4-2 for injuries caused by a dangerous condition
of public property. The judge found the Route 129/Hamilton Avenue
intersection merely a busy intersection in an urban environment, with the mixing
of pedestrians and vehicular traffic inherently dangerous. The judge found the
absence of a pedestrian bridge over Route 129 did not make the intersection
defective, or a dangerous condition, nor was it palpably unreasonable for the
State to have determined not to build a bridge over the highway.
Plaintiffs' appeal, reprising the arguments they made to the trial court that
there exists a genuine issue of material fact as to whether the Route
129/Hamilton Avenue intersection was a dangerous condition of which
defendants' failure to protect them was palpably unreasonable, contending the
trial court erred in applying plan and design immunity, discretionary immunity
under N.J.S.A. 59:2-3, and police protection immunity. They add the court
improperly dismissed Benning's non-Portee negligent infliction of emotional
distress claim and that the trial judge "decided this very complex case without
reading all the moving papers in violation of Rule 1:6-7" and misapplied the
A-1645-19 18 summary judgment standard. We reject all of these arguments as without merit.
None of them requires any extended discussion in a written opinion. See R.
2:11-3(e)(1)(E).
We begin by addressing plaintiffs' last two arguments first. Rule 1:6-7
requires trial judges "[i]nsofar as possible" to "read moving papers and briefs in
advance of the hearing" with the obvious intent "to ensure that trial judges be
familiar with the moving papers in advance of motion arguments," Pressler &
Verniero, Current N.J. Court Rules, cmt. on R. 1:6-7 (2022). After taking the
appearances of the nine lawyers who argued these motions in advance of over
four hours of oral argument, the judge advised the lawyers he'd read "the briefs
and the attachments where [he] thought [he] needed to read something." But he
also advised counsel he had "not read every word of every page" of the extensive
materials submitted on the motion, and thus invited them to "please feel free" to
point out anything they thought it especially important he consider among those
materials, representing he would "make sure if [he hadn't] considered it" that he
did so before ruling.
Plaintiffs claim the judge's "failure to read all the briefs and all the cases
cited therein . . . led to inaccurate findings of fact and law." Leaving aside the
judge made clear he had read all the briefs and made no comment one way or
A-1645-19 19 the other about having reviewed the cases "cited therein," our own review of this
extensive record and the trial court's thorough and well-reasoned opinion leave
us without any doubt that the judge was in full command of both the critical
facts and the controlling law. Indeed, we affirm substantially for the reasons
expressed in the oral opinion the judge delivered from the bench within an hour
after argument. We accordingly reject plaintiffs' claim that the judge's invitation
to counsel to identify anything in particular in the supporting papers they wanted
to ensure he'd studied before he rendered a decision on the motions constituted
a violation of Rule 1:6-7.
Because we apply the same standard in reviewing a summary judgment as
the trial judge did in deciding it and review questions of law de novo without
deference to any interpretive conclusions we believe mistaken, Nicholas v.
Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995), we have no need to consider plaintiffs'
argument that the judge misapplied the summary judgment standard. Instead,
viewing the facts in a light most favorable to plaintiffs, we consider whether the
evidence presented a sufficient disagreement to require their submission to a
jury or whether it was "so one-sided that one party must prevail as a matter of
law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-
A-1645-19 20 46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536
(1995)).
As our Supreme Court regularly reminds in Title 59 matters, "[t]he Act's
'guiding principle' is 'that immunity from tort liability is the general rul e and
liability is the exception.'" O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 345
(2019) (quoting Coyne v. State, 182 N.J. 481, 488 (2005)). We agree with the
trial court that plaintiffs advanced no theory that would permit them to pierce
the immunities of these defendants. We address the claims against each.
In order to impose liability on a public entity for the dangerous condition
of its property pursuant to N.J.S.A. 59:4-2, a plaintiff must establish there
existed a "dangerous condition," that the condition proximately caused her
injury, "that it 'created a reasonably foreseeable risk of the kind of injury which
was incurred,' that either the dangerous condition was caused by a negligent
employee or the entity knew about the condition, and that the entity's conduct
was 'palpably unreasonable.'" Vincitore v. N.J. Sports & Exposition Auth., 169
N.J. 119, 125 (2001) (quoting N.J.S.A. 59:4-2).
N.J.S.A. 59:4-1(a) defines a dangerous condition as "a condition of
property that creates a substantial risk of injury when such property is used with
due care in a manner in which it is reasonably foreseeable that it will be used."
A-1645-19 21 As the trial court correctly noted, in deciding whether a dangerous
condition exists, the focus is necessarily on the condition of the property itself.
See Daniel v. State, Dep't of Transp., 239 N.J. Super. 563, 586 (App. Div. 1990).
The law is well-settled that "[i]f a public entity's property is dangerous only
when used without due care, the property is not in a 'dangerous condition.'"
Garrison v. Twp. of Middletown, 154 N.J. 282, 287 (1998).
Here, it is plain that plaintiffs' claim of a dangerous condition founders on
the first two prongs of 59:4-2, dangerous condition and proximate cause. It is
undisputed the accident was as a result of the lack of due care exercised by
defendants Hubscher and Parks, that is Hubscher's illegal left turn and Parks'
failure to maintain a safe distance from, or yield to, an emergency vehicle.
Nothing about the physical condition of the roadway or the intersection
contributed in any fashion to this accident. See Daniel, 239 N.J. Super. at 585-
90 (explaining how a highway median could be "considered a dangerous
condition where it fails to fulfill its essential purpose and substantially
exacerbates the perils of everyday driving" by enhancing the risk that cars
inadvertently making contact with it "would be vaulted or catapulted into lanes
of oncoming traffic").
A-1645-19 22 As we have elsewhere observed, there is an obvious risk posed to
pedestrians by vehicular traffic, and "[i]n the absence of due care, traffic
congestion may enhance the risk of injury so that the risk becomes substantial. "
King v. Brown, 221 N.J. Super. 270, 275 (App. Div. 1987). "But the test is
whether the condition complained of creates a substantial risk of injury de spite
the exercise of due care by motorists and pedestrians." Id. at 275-76. Here,
there is simply no evidence in the record the Route 129/Hamilton Avenue
intersection was dangerous or unsafe when used with due care.
Plaintiffs' argument that the accident would never have occurred had the
State approved or erected a pedestrian bridge or installed additional signage is
answered by the Legislature's declaration in 59:1-2 that "the area within which
government has the power to act for the public good is almost without limit and
therefore government should not have the duty to do everything that might be
done." Moreover, the Act accords the State absolute immunity for the absence
of a pedestrian bridge and design of the roadway under N.J.S.A. 59:4-6,7 because
7 N.J.S.A. 59:4-6 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
A-1645-19 23 it is undisputed that Route 129 was constructed in the mid-1990s in accordance
with the approved design that did not include a pedestrian bridge. Thus, the
absence of a pedestrian bridge, and the roadway design in general, cannot form
the basis of liability. Levin v. County of Salem, 133 N.J. 35, 45 (1993).
Because plan or design immunity is perpetual, "the immunity is not lost
even if new knowledge demonstrates the dangerousness of the design, or the
design presents a dangerous condition in light of a new context." Manna v.
State, 129 N.J. 341, 355 (1992). Accordingly, the State is not only immune for
constructing Route 129 without a footbridge in the mid-1990s but also for its
later refusal to approve one in connection with construction of the Arena in the
late-1990s and thereafter.
The State's decision not to construct or approve construction of the
footbridge is also immunized by N.J.S.A. 59:2-3(c), which provides: "A public
entity is not liable for the exercise of discretion in determining whether to seek
or whether to provide the resources necessary for the purchase of equipment, the
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. A-1645-19 24 construction or maintenance of facilities, the hiring of personnel and, in general,
the provision of adequate governmental services" (emphasis added) and by
N.J.S.A. 59:2-5, an immunity not referenced by the trial court but asserted by
the State in its answer, which states: "A public entity is not liable for an injury
caused by the . . . denial . . . of, or by the failure or refusal to issue . . . any . . .
approval . . . where the public entity or public employee is authorized by law to
determine whether or not such authorization should be issued, denied, suspended
or revoked." As to these discretionary and permit immunities, the record is clear
the Department of Transportation declined to construct a pedestrian bridge over
Route 129 and refused to authorize construction of one by the MCIA or New
Jersey Transit based on the unresolved issue of what entity would assume
responsibility for its continued maintenance. Under Title 59, no liability can
attach to those decisions.
To the extent plaintiffs assert the State should be liable for the absence of
appropriate traffic signals or signs along Route 129, Title 59 provides immunity
under N.J.S.A. 59:4-5, which states: "Neither 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." See
Weiss v. N.J. Transit, 128 N.J. 376, 385 (1992) (holding "[w]hen the absence of
A-1645-19 25 a traffic signal or the design of the crossing is the true culprit, government is
immune"). We agree with the trial judge that the State is not liable
under N.J.S.A. 59:4-4 for its failure to provide "emergency" devices necessary
to warn of a dangerous condition harmful to the safe movement of traffic that
would not be apparent to one using due care. As in Weiss, the danger here "was
endemic, not emergent," making the exception provided in 59:4-4 inapplicable.
See id. at 383-84.
We agree with the trial court that plaintiffs' claims against the County to
ensure their safe passage across Route 129 fail because it is undisputed the State
owned both Route 129 and the stretch of Hamilton Avenue at issue and
controlled the Route 129/Hamilton Avenue intersection, leaving the County
with no ownership or control over either road or the intersection, a necessary
prerequisite to liability. See Posey v. Bordentown Sewerage Auth., 171 N.J.
172, 182-84 (2002); Weiser v. County of Ocean, 326 N.J. Super. 194, 199-200
(App. Div. 1999).
As to the MCIA, we agree with plaintiffs that the MCIA as a landowner
has a duty under established law to undertake reasonable safeguards to protect
patrons "from the dangers posed by crossing an adjoining highway" to an area
it knew or should know patrons will use for parking. See Mulraney v. Auletto's
A-1645-19 26 Catering, Nat. Valet Parking Servs., 293 N.J. Super. 315, 321 (App. Div. 1996).
While the MCIA notes it provided patrons parking in a lot directly adjacent to
the Arena that would not require them to cross Route 129, we note it apparently
charged a fee separate from the ticket price to park in that lot. We need not
consider whether the MCIA's duty to undertake reasonable safeguards extended
to the River Line light rail lot, where MCIA patrons could park free, because we
agree with the trial court the MCIA enjoys discretionary and police protection
immunity for its decisions as to those safeguards under its control and "[w]hen
both liability and immunity appear to exist, the latter trumps the former. " Tice
v. Cramer, 133 N.J. 347, 356 (1993).
Specifically, plaintiffs suggest the MCIA could have discharged its
obligation to provide safe passage "in any number of ways, including portable
warning signs, a pedestrian footbridge, private security, shuttle trams, or
helicopter rides, for that matter." As to the pedestrian footbridge, we agree with
the trial court the City planning board's approval of Arena construction plans
that included a bridge is of no assistance to them in establishing liability. It is
undisputed that construction of a pedestrian bridge over Route 129 required
approval by the Department of Transportation, which never issued an approval.
Absent Department of Transportation approval, the MCIA had no authority to
A-1645-19 27 construct a pedestrian bridge over the State Highway. Accordingly, the MCIA's
conduct in not constructing one cannot be deemed palpably unreasonable. See
Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985).
We also agree with the trial court that the evidence on the motion reflects
the MCIA had an established plan for addressing traffic and pedestrian safety in
connection with events at the Arena, which included contracting with the City
to provide police protection. The MCIA's decision to utilize public safety
officers rather than the other methods proposed by plaintiffs constitutes a
discretionary decision, immunized from liability under N.J.S.A. 59:2-3(c).
Moreover, the alleged inadequacy of the MCIA's policing plan is immunized by
the police protection immunity under N.J.S.A. 59:5-4, which states: "Neither a
public entity nor a public employee is liable for failure to provide police
protection service or, if police protection service is provided, for failure to
provide sufficient police protection service." See Sczyrek v. County of Essex,
324 N.J. Super. 235, 239-42 (App. Div. 1999); Rodriguez, 193 N.J. Super. at 43.
Plaintiffs claim the MCIA's duties to them were enhanced by its awareness
of the dangerous condition of the intersection fails because they cannot establ ish
the intersection was a dangerous condition under N.J.S.A. 59:4-1. Because
plaintiffs can recover against the State, the County, and the MCIA only as
A-1645-19 28 permitted under the Tort Claims Act, and as they cannot establish liability under
the Act as a matter of law on this record, Benning's negligent infliction of
emotional distress claim was also properly dismissed on summary judgment.
In sum, this was a tragic accident caused by a firetruck making an illegal
left turn at the Route 129/Hamilton Avenue intersection colliding with a pickup
truck that failed to keep back or yield as plaintiffs' family stood alone on the
Route 129 median. Although plaintiffs' traffic safety expert and their expert in
public assembly risk management found much to criticize in the manner the
MCIA managed events at the Arena and both identified a number of procedures
that could have improved pedestrian safety during the crush of those events,
traffic was quiet and there were no other attendees in the vicinity at the time of
the accident. None of the items plaintiffs' experts identified proximately caused
or even significantly contributed to I'Maya's tragic and needless death; the
intersection was not a dangerous condition as defined in 59:4-1, and these
defendants had statutory immunities for the steps they took and didn't take here ,
none of which were palpably unreasonable. Plaintiffs' remaining arguments, to
the extent we have not addressed them, are without sufficient merit to warrant
further discussion. See R. 2:11-3(e)(1)(E). We affirm summary judgment to
A-1645-19 29 defendants dismissing plaintiffs' complaint essentially for the reasons expressed
by Judge Anklowitz in his opinion from the bench on November 9, 2016.
Affirmed.
A-1645-19 30