Jean Paul Joseph v. New Jersey Turnpike Authority

• Court: New Jersey Superior Court Appellate Division
• Decided: February 25, 2025
• Docket: A-0735-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0735-23

JEAN PAUL JOSEPH, administrator of the ESTATE OF MAGALLY PAULEMONT and JEAN PAUL JOSEPH, individually,

Plaintiffs-Appellants,

v.

NEW JERSEY TURNPIKE AUTHORITY,

Defendant-Respondent,

and

STATE OF NEW JERSEY, COUNTY OF UNION, TOWNSHIP OF CLARK, CITY OF RAHWAY, and WINFIELD PARK,

Defendants.

CHRISTINA FERDINAND, administrator of the ESTATE OF FRANCE NOVEMBRE and CHRISTINA FERDINAND, individually,

STATE OF NEW JERSEY, COUNTY OF UNION, TOWNSHIP OF CLARK, CITY OF RAHWAY, and WINFIELD PARK,

Submitted February 5, 2025 – Decided February 25, 2025

Before Judges Mayer and Puglisi.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket Nos. L-1187-19 and L-2089-19.

Kuhrt, Femia & Kuhrt, LLC, attorneys for appellants (David W. Kuhrt, on the brief).

McManimon, Scotland & Baumann LLC and DeCotiis FitzPatrick Cole & Giblin LLC, attorneys for respondent New Jersey Turnpike Authority (Grant W.

A-0735-23 2 McGuire, Malcolm X. Thorpe, Paul Miller, and Angelo DeFlora, on the brief).

Matthew J. Platkin, Attorney General, attorney for respondent State of New Jersey (Sookie Bae-Park, Assistant Attorney General, of counsel; Robert J. McGuire, Deputy Attorney General, on the statement in lieu of brief). 1

PER CURIAM

Plaintiffs Jean Paul Joseph, both in his individual capacity and as

administrator of the Estate of Magally Paulemont, and Christina Ferdinand, both

in her individual capacity and as administrator of the Estate of France

Novembre, appeal from an August 29, 2023 order granting summary judgment

to defendant New Jersey Turnpike Authority (NJTA) and an October 6, 2023

order denying plaintiffs' motion for reconsideration. For the following reasons,

we affirm in part and reverse and remand in part.

We recite the facts from the motion record. This case arises from a tragic

and fatal single-car accident on the Garden State Parkway (Parkway). On June

16, 2017, Paulemont drove her car northbound on the Parkway while her mother,

Novembre, sat in the front passenger seat. Near Parkway Milepost 137.3,

1 In its brief, the State of New Jersey took no position on appeal because the claims against it were dismissed by the trial court. A-0735-23 3 Paulemont's car ran off the road, struck a tree, overturned, and fell into the

Rahway River. Paulemont and Novembre died as a result of drowning.

NJTA owns, operates, and maintains the Parkway and is the "successor

agency" to the New Jersey Highway Authority (NJHA). In May 1991, NJHA

submitted a public contract for roadway and other improvements between

Mileposts 129.7 and 137.7. The proposed improvements included roadway

resurfacing, pavement widening, and guide rails. NJHA engineers drafted, and

NJHA's executive director approved, an "as built drawing" for the roadway

improvements. The improvements were completed in accordance with the

approved as built plan in July 1995.

Based on NJHA's engineering and design guidelines in effect at the time

of the improvements,2 construction of a "clear zone" was recommended at

Milepost 137.3. A clear zone is an unobstructed, traversable roadside area that

allows a driver to stop safely or regain control of a vehicle that has left the

roadway. The size of a clear zone is determined by the speed limit of the road

and the steepness of any slopes adjacent to the road. According to NJTA, based

2 Specifically, the 1989 NJHA Design Manual governed the engineering principles for roadway improvements. For improvements not covered by this manual, the 1984 New Jersey Department of Transportation Roadway Design Manual and the American Association of State Highway and Transportation Officials (AASHTO) Roadside Design Guide applied. A-0735-23 4 on the specifications in the applicable engineering guidelines, the clear zone

adjacent to Parkway Milepost 137.3 was more than thirty feet wide.

All roadway improvements, including near Milepost 137.3, were marked

on the as built drawing. The drawing depicted the roadway, the immediate

surrounding area, and the Rahway River.

As for the installation of guide rails, the applicable design guidelines

recommended a rail be installed if the clear zone contained trees, utility poles,

boulders, deep bodies of water, or slopes greater than three feet in height. Based

on the guidelines, when "there is no clear choice as to whether or not [a] guide

rail is warranted," "[s]uch cases must be evaluated on an individual basis, and,

in the final analysis, must usually be solved by engineering judgment."

The section of the road where Paulemont ran off the road is flat. The

speed limit on that portion of the Parkway is fifty-five miles per hour. Based on

the configuration of the road, the adjacent surroundings, and the speed limit,

NJHA did not request construction of a guide rail at Milepost 137.3. Thus, on

the date of the accident, this milepost had no guide rail.

On March 27, 2019, and June 10, 2019, Joseph, Paulemont's husband, and

Ferdinand, Novembre's granddaughter, respectively filed separate wrongful

death suits against defendants NJTA, State of New Jersey, County of Union,

A-0735-23 5 Township of Clark, City of Rahway, and Winfield Park. 3 The two lawsuits were

consolidated in a February 14, 2020 order. In their complaints, plaintiffs alleged

NJTA negligently failed to maintain the clear zone, the roadway area at the

accident location created dangerous conditions, and a guide rail should have

been installed to prevent accidents such as the one involving Paulemont and

Novembre.

NJTA retained an engineering expert. NJTA's expert concluded: "The

roadway area where this accident occurred had a clear zone that was adequate

and did not warrant modifications or improvements such as the addition of guide

rails and as such, allegations that this area was unsafe or dangerous, are

unfounded and are not based upon a sound engineering analysis."

Plaintiffs also retained an engineering expert. Their expert concluded

there were dangerous conditions in the area of Milepost 137.3 which

proximately caused the accident. Plaintiffs' expert opined NJTA failed to

properly maintain the clear zone, creating a dangerous condition. Additionally,

plaintiffs' expert asserted that if a guide rail had been installed, it would have

prevented Paulemont's car from leaving the roadway, striking a nearby tree, and

3 Plaintiffs' claims against all defendants except NJTA were dismissed. Ferdinand's complaint did not include claims against Winfield Park.

A-0735-23 6 being submerged in the river, ultimately causing the deaths of Paulemont and

NJTA moved for summary judgment, arguing plan or design immunity

under N.J.S.A. 59:4-6 barred plaintiffs' claims. Specifically, NJTA asserted

NJHA built the clear zone at Milepost 137.3 according to an officially approved

plan. NJTA also claimed it could not be held liable for considering but deciding

against the installation of a guide rail at this specific milepost. Further, because

plan immunity is forever, NJTA asserted any other dangerous conditions alleged

by plaintiffs did not impose liability either.

In an August 29, 2023 order and attached statement of reasons, the judge

granted NJTA's motion and dismissed plaintiffs' complaints with prejudice. The

judge agreed plan or design immunity barred plaintiffs' claims against NJTA.

She concluded "the subject [c]lear [z]one where [the] vehicle left the roadway

exceed the minimum suggested [c]lear [z]one distance of [thirty] feet and

[NJHA]'s design engineers took in account all of the sloping principles outlined

in the 1984 Manual for Design Criteria when constructing the [c]lear [z]one."

Additionally, the judge stated "[t]he plans approved by [NJHA] did consider the

presence of the Rahway River" because the river appeared on the as built

drawing for the roadway improvements. The judge determined "[i]t [was]

A-0735-23 7 uncontroverted that [NJHA]'s designers followed the engineering guidelines and

principles that were [in] place when the [c]lear [z]one was constructed."

Regarding plaintiffs' claim that NJTA negligently maintained the clear

zone, the judge wrote "[t]he affirmative defense of design and plan immunity is

not lost because of a subsequent change in circumstances to the [c]lear [z]one

such as erosion or overgrown shrubbery. . . . Design and plan immunity is a

perpetual immunity. . . ." After considering the facts in the light most favorable

to plaintiffs, the judge found "no genuine issue of material fact that [NJTA] has

proven [it was] entitled to the design and plan immunity pursuant to N.J.S.A.

59:4-6." Thus, the judge declined to conduct an analysis of plaintiffs' negligent

maintenance claim under N.J.S.A. 59:4-1 and N.J.S.A. 59:4-2.

Plaintiffs moved for reconsideration, which the motion judge denied. In

an October 6, 2023 order and attached statement of reasons, the judge explained

she determined plan or design immunity precluded plaintiffs' negligent

maintenance claim. The judge concluded "maintenance [was] irrelevant because

design immunity is perpetual and absolute." The judge noted plaintiffs failed to

provide "any authority to support the repeated assertion that 'design immunity

does not lead to total immunity' and that 'negligent maintenance is not covered

by design immunity at all.'"

A-0735-23 8 On appeal, plaintiffs argue the motion judge erred in granting summary

judgment because (1) NJTA was not entitled to plan or design immunity, (2)

plan or design immunity did not apply to NJTA's failure to maintain trees,

wetland vegetation, or steep slopes within the clear zone, and (3) NJTA's failure

to maintain these conditions within the clear zone presented a genuine issue of

material fact precluding summary judgment.

A trial judge's decision on summary judgment motion is reviewed de

novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). Summary

judgment must be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). "[A]n issue of fact is genuine only if, considering the burden of persuasion

at trial, the evidence submitted by the parties on the motion, together with all

legitimate inferences therefrom favoring the non-moving party, would require

submission of the issue to the trier of fact." Bhagat v. Bhagat, 217 N.J. 22, 38

(2014) (quoting R. 4:46-2(c)).

"The court's function is not 'to weigh the evidence and determine the truth

of the matter . . . .'" Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021) (quoting

A-0735-23 9 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). We must

"consider whether the competent evidential materials presented, when viewed

in the light most favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." C.V. v. Waterford Twp. Bd. of Educ., 255 N.J. 289, 305 (2023)

(quoting Samolyk v. Berthe, 251 N.J. 73, 78 (2022)). If the evidence is "so one-

sided that one party must prevail as a matter of law," summary judgment is

appropriate. Brill, 142 N.J. at 536 (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52 (1986)).

On de novo review, "[a] trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019) (alteration

in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

I.

We first address plaintiffs' argument that NJTA was not entitled to

summary judgment based on plan or design immunity for the roadway

improvements and, more specifically, the decision not to install a guide rail at

Milepost 137.3. We reject plaintiffs' argument on this point.

A-0735-23 10 The Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, governs public entity

liability in New Jersey. "The guiding principle of the Tort Claims Act is that

'immunity from tort liability is the general rule and liability is the exception

. . . .'" Coyne v. State, Dep't of Transp., 182 N.J. 481, 488 (2005) (quoting

Garrison v. Twp. of Middletown, 154 N.J. 282, 286 (1998)). This is because "a

coordinate branch of government should not be second-guessed by the judiciary

for high level policy decisions." Thompson v. Newark Hous. Auth., 108 N.J.

525, 534 (1987).

Plan or design immunity under N.J.S.A. 59:4-6 is an affirmative defense

for which "the public entity bears . . . the burden of proof." Birchwood Lakes

Colony Club, Inc. v. Borough of Medford Lakes, 90 N.J. 582, 600 (1982).

N.J.S.A. 59:4-6 provides:

Neither [a] public entity nor a public employee is liable . . . 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 . . . .

Where plan or design immunity attaches, "no subsequent event or change

of conditions shall render a public entity liable on the theory that the existing

plan or design of public property constitutes a dangerous condition." Seals v.

A-0735-23 11 Cnty. of Morris, 210 N.J. 157, 180 (2012). This "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). In other words, plan or design immunity is "perpetual."

Ibid.

"Application of plan-or-design immunity turns on whether the public

entity has approved the feature in question so as to immunize it from challenge."

Id. at 353. "[T]he defect that causes the injury must be in the plans before

immunity is conferred." Thompson, 108 N.J. at 535. Thus, "for 'plan or design'

immunity to attach, the public entity must establish that an approved feature of

the plan sufficiently addressed the condition that is causally related to the

accident." Id. at 536. A public entity is not required to show "a feature of the

plans . . . was specifically considered and rejected." Id. at 537. Rather, "[i]f the

plans sufficiently embrace the condition that is the subject matter of plaintiff's

claim, they should be given pre-emptive effect." Ibid. A public entity need only

"offer evidence that it had considered the general condition about which a

plaintiff complains in formulating the original plan or design." Luczak v. Twp.

of Evesham, 311 N.J. Super. 103, 109 (App. Div. 1998).

A-0735-23 12 The absence of a guide rail at Milepost 137.3 was noted in NJHA's as built

drawing for the road improvements. NJHA affirmatively considered and

installed guide rails at other milepost locations consistent with the applicable

engineering and design guidelines. The decision not to install a guide rail at

Milepost 137.3 included NJHA's consideration of steep slopes, bodies of water

more than two feet in depth, and existing trees. The approved as built drawing

for the roadway improvements also included consideration of the Rahway River.

The record reflected NJHA considered the conditions near Milepost 137.3,

including the Rahway River. However, in accordance with the applicable

engineering guidelines, NJHA elected not to install a guide rail at this location.

Notably, NJHA installed guide rails at other mileposts as reflected on the as

built plans. Thus, the motion judge correctly concluded NJTA could not be

liable for the absence of a guide rail at the scene of the accident based on plan

or design immunity under N.J.S.A. 59:4-6.

II.

We next address plaintiffs' argument the motion judge erred by combining

plan or design immunity under N.J.S.A 59:4-6 with negligent failure to maintain

the clear zone under N.J.S.A. 59:4-1 and N.J.S.A. 59:4-2. While we agree plan

A-0735-23 13 or design immunity attached to the lack of a guide rail, such immunity does not

govern plaintiffs' claim for negligent failure to maintain the clear zone.

"[A] public entity is 'immune from tort liability unless there is a specific

statutory provision' that makes it answerable for a negligent act or omission."

Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012) ("Polzo II") (quoting Kahrar v.

Borough of Wallington, 171 N.J. 3, 10 (2002)). N.J.S.A. 59:4-2 imposes

liability against public entities for failing to remedy dangerous property

conditions. The statute provides:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to

A-0735-23 14 protect against the condition or the failure to take such action was not palpably unreasonable.

[Ibid.]

To prevail on a claim for negligent maintenance of public property, a

plaintiff must establish (1) the existence of a "dangerous condition," (2) the

condition "proximately caused the injury," (3) the condition "created a

reasonably foreseeable risk of the kind of injury which was incurred," (4) the

dangerous condition was caused by a negligent employee or the entity had actual

or constructive notice of the dangerous condition, and (5) the entity's conduct

was "palpably unreasonable." Vincitore ex rel. Est. of Vincitore v. N.J. Sports

& Exposition Auth., 169 N.J. 119, 125 (2001). A plaintiff asserting a tort claim

against a public entity for injuries allegedly caused by a condition on its property

must present evidence satisfying each element to support a cause of action under

N.J.S.A. 59:4-2. Polzo II, 209 N.J. at 66.

"Whether property is in a 'dangerous condition' is generally a question for

the finder of fact." Vincitore, 169 N.J. at 123. Such a finding, "like any other

fact question before a jury, is subject to the court's assessment whether it can

reasonably be made under the evidence presented." Black v. Borough of

Atlantic Highlands, 263 N.J. Super. 445, 452 (App. Div. 1993). "When deciding

a motion . . . for summary judgment in a case where the plaintiff has alleged a

A-0735-23 15 dangerous condition of a roadway, the judge must examine the issue

'pragmatically' to determine whether the particular irregularities complained of

'were such that reasonable minds could differ as to whether they manifested that

the [roadway] was in a dangerous condition.'" Est. of Massi v. Barr, 479 N.J.

Super. 144, 158 (App. Div. 2024) (quoting Polyard v. Terry, 160 N.J. Super.

497, 510 (App. Div. 1978)).

If a dangerous condition is found to exist, the judge must engage in a two-

part analysis to determine whether a plaintiff alleging an injury based on a

purported dangerous condition exercised due care under N.J.S.A. 59:4-1(a).

Garrison, 154 N.J. at 292. This analysis requires a judge to identify (1) "whether

the property poses a danger to the general public when used in [a] normal,

foreseeable manner," and (2) "whether the nature of the . . . activity is 'so

objectively unreasonable' that the condition of the property cannot reasonably

be said to have caused the injury." Buddy v. Knapp, 469 N.J. Super. 168, 198

(App. Div. 2021) (quoting Vincitore, 169 N.J. at 125).

Here, the judge did not conduct the required analysis to determine whether

NJTA's alleged negligent failure to maintain the clear zone constituted a

dangerous condition. The judge had to determine whether, based on the

undisputed facts, the condition of the area adjacent to Milepost 137.3 created a

A-0735-23 16 substantial risk of injury when the property was used with due care. Plaintiffs

allege the slopes adjacent to Milepost 137.3 were non-recoverable, the wetland

vegetation significantly expanded, and trees and brush sprouted in the clear zone

such that NJTA's failure to mitigate these conditions through routine

maintenance created a dangerous condition imposing liability under N.J.S.A.

59:4-2.

The causes of action for failure to install a guide rail and negligent failure

to maintain the clear zone are governed by two different statutes. The

installation of the guide rail is governed by N.J.S.A. 59:4-6. However, plaintiffs'

claims asserting a dangerous condition based on NJTA's failure to maintain the

clear zone required an analysis under N.J.S.A. 59:4-1 and N.J.S.A. 59:4-2. In

the absence of the required analysis under these statutes, we are constrained to

remand to the motion judge to address whether NJTA is entitled to summary

judgment on plaintiffs' claim that NJTA's failure to maintain the clear zone

constituted a dangerous condition.

We need not address whether plaintiffs' expert's opinions regarding the

negligent failure to maintain the area adjacent to Milepost 137.3 are factually

supported by the record because the issue was not presented to the motion judge.

We take no position on the outcome of NJTA's motion on remand.

A-0735-23 17 Affirmed in part and reversed and remanded in part for proceedings

consistent with our opinion. We do not retain jurisdiction.

A-0735-23 18