NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4339-18 A-4344-18 A-4492-18
JENNIFER BUDDY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION v. August 17, 2021
JONATHAN E. KNAPP, APPELLATE DIVISION
COUNTY OF ATLANTIC, and BOROUGH OF FOLSOM,
Defendants,
and
STATE OF NEW JERSEY, and WAWA, INC.,
Defendants-Respondents. _____________________________
CORRINE BUDDY, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM FOR THE ESTATE OF LOUIS J. BUDDY, JR., deceased,
Plaintiff/Appellant- Third Party-Defendant,
v. JONATHAN E. KNAPP, COUNTY OF ATLANTIC, and BOROUGH OF FOLSOM,
Defendants/Third-Party Plaintiffs-Respondents. _____________________________
DAMIEN CONNEEN,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY, NEW JERSEY DEPARTMENT OF TRANSPORTATION, and WAWA, INC.,
Defendants-Respondents,
ADAMUCCI ASSOCIATES, LLC,
Defendant. _____________________________
Argued October 26, 2020 – Decided August 17, 2021
Before Judges Sabatino, Gooden Brown, and DeAlmeida.
A-4339-18 2 On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket Nos. L-1037-16, L-1046-16, and L-1049-16.
Ernest L. Alvino argued the cause for appellant Jennifer Buddy in No. A-4339-18 (Hoffman DiMuzio, attorneys; Ernest L. Alvino and Ryan S. Hoffman, on the joint briefs).
Anthony Granato argued the cause for appellant Corrine Buddy, General Administratrix and Administratrix Prosequendum for the Estate of Louis J. Buddy, Jr., in No. A-4344-18 (Jarve Kaplan Granato Starr, LLC, attorneys; Anthony Granato, on the joint briefs).
Andrew J. Rossetti argued the cause for appellant Damien Conneen in No. A-4492-18 (Rosetti & Devoto, PC, attorneys; Andrew J. Rossetti and Anthony J. Medori, of counsel and on the briefs).
Katherine Herr Solomon (Mauro Lilling Naparty, LLP) of the New York bar, admitted pro hac vice, argued the cause for respondent WaWa, Inc., in No. A-4339-18, No. A-4344-18, and No. A-4492-18 (Mauro Lilling Naparty, LLP, attorneys; Caryn L. Lilling, on the briefs).
Robert McGuire, Deputy Attorney General, argued the cause for respondents State of New Jersey and New Jersey Department of Transportation in No. A-4339- 18, No. A-4344-18, and No. A-4492-18 (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Michael R. Sarno, Deputy Attorney General, on the briefs).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.,
A-4339-18 3 These appeals, which we consolidate solely for the purposes of this
opinion, arise from two motor vehicle accidents that occurred about a year
apart in approximately the same location under similar circumstances. In both
instances, a driver traveling westbound on Route 322 in Folsom Borough made
an illegal left turn in the direction of one of two driveway entrances to a
WaWa convenience store and struck a motorcycle traveling eastbound on the
highway. In the first accident, the motorcycle driver was killed and his wife,
who was a passenger, seriously injured. In the second accident, the
motorcycle driver was seriously injured. The injured parties and the estate of
the decedent filed suits against the entity that owns the convenience store and
the State, which owns the highway and the land on which the store's driveway
entrances are situated, alleging a number of claims sounding in negligence.
Plaintiffs appeal orders of the Law Division granting summary judgment
to defendants. The court concluded that the convenience store owner did not
owe a duty of care to the injured parties and, further, that the State is immune
from plaintiffs' claims under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to
13-10. Plaintiffs also appeal an order denying their motion to consolidate their
complaints. We affirm.
A-4339-18 4 I.
Defendant WaWa, Inc. (WaWa) owns and operates a convenience store
on Route 322, also known as Black Horse Pike, in Folsom at the intersection
of Cains Mill Road. The intersection is controlled by a traffic signal. At the
location of the store, Route 322 is a four-lane State highway with two
eastbound and two westbound lanes separated by two sets of solid double
yellow lines. The speed limit is fifty-five miles per hour.
The store is located on the eastbound side of the highway and is east of
the intersection. There are two driveway entrances to the store's parking lot on
the eastbound side of the highway. It is illegal for westbound vehicles to make
a left turn and cross the double yellow lines and the eastbound lanes to access
the driveway entrances to the WaWa. See N.J.S.A. 39:4-82.1 ("[w]henever
any highway has been divided into two roadways by leaving a[] . . . clearly
indicated dividing section so constructed so as to impede vehicular traffic,
every vehicle shall be driven only upon the right-hand roadway and no vehicle
shall be driven over [or] across . . . any such dividing . . . section, except
through an appropriate opening . . . or at a cross over or intersection
established by public authority.").
Approximately four cars east of the WaWa, on the other side of the
highway, a vehicle traveling westbound encounters the entrance to a jug
A-4339-18 5 handle. The jug handle allows vehicles to navigate the Cains Mill Road
intersection with Route 322. The westbound driver can use the jug handle to
enter Cains Mill Road and, when the light permits, cross Route 322 and turn
eastbound on the highway, where, a few car lengths from the intersection the
driver can access the WaWa driveway entrances. 1
When the collisions occurred, there was a sign on the westbound side of
Route 322 east of the WaWa and near the entrance to the jug handle stating,
"ALL TURNS FROM RIGHT LANE." The sign is intended to restrict vehicle
movements to prevent left turns across the highway at and before the
intersection with Cains Mill Road.
The WaWa driveway entrances were constructed in 1969-1970 and are
in the State's right-of-way. It is unclear if a permit was issued for their
construction. However, the driveway entrances are considered to have been
constructed in accordance with DOT regulations by virtue of N.J.A.C. 16:47 -
8.3(a) ("[a]ll driveways and streets in existence prior to September 12, 1992,
shall be considered grandfathered and to have been constructed in accord ance
with the provisions of this chapter, if no permit was issued."). WaWa is not
1 The WaWa parking lot also has a driveway entrance off Cains Mills Road, a two-lane road with a break in the yellow lines that allow a vehicle approaching the store from the intersection with Route 322 to make a left turn into the parking lot. This provides a second method for westbound traffic on Route 322 to safely enter the parking lot.
A-4339-18 6 authorized to modify the driveway entrances or place any signage regulating
traffic without permission from the State.
On May 17, 2014, defendant Jonathan E. Knapp was operating a pick-up
truck westbound on Route 322. Knapp attempted to make an illegal left turn
from the westbound lanes of the highway into one of the WaWa driveway
entrances. As he accelerated to cross the eastbound lanes, Knapp struck an
eastbound motorcycle operated by Louis J. Buddy, Jr. Plaintiff Jennifer
Buddy, Louis's wife, was a passenger on the motorcycle. 2 Both were ejected
from the motorcycle. Jennifer sustained multiple injuries and was flown by
helicopter to a trauma center for treatment. Louis was pronounced dead at the
scene. The crash occurred in the eastbound lanes of the highway.
Knapp was issued motor vehicle summonses for careless driving,
N.J.S.A. 39:4-97, and making an improper turn across a divided highway,
N.J.S.A. 39:4-82.1. He acknowledged his awareness at the time of the
accident of the jug handle two to four car lengths east of where he turned. He
stated, however, that he thought it was permissible to make a left turn into any
operating business.
2 Because the Buddys share a last name, we refer to them by their first names. No disrespect is intended.
A-4339-18 7 Nearly a year later, on May 5, 2015, Angelina Casella was operating a
car westbound on Route 322. Casella attempted to make an illegal left turn to
enter the other driveway entrance of the WaWa. A video surveillance
recording shows Casella's vehicle in the eastbound lane when it was struck by
an eastbound motorcycle operated by plaintiff Damien Conneen. Conneen was
thrown from the motorcycle as a result of the crash and sustained serious
injuries. Casella was issued motor vehicle summonses for careless driving,
N.J.S.A. 39:4-97, and making an improper turn across a divided highway,
N.J.S.A. 39:4-82.1. Neither Knapp nor Casella identified any aspect of the
driveway entrances that induced them to attempt to make their illegal turns
across opposing highway traffic. 3
On May 13, 2016, Jennifer filed a complaint in the Law Division naming
Knapp, the State, and Wawa as defendants. On the same date, plaintiff Corrine
Buddy, Administratrix for Louis's Estate (the Estate), filed a complaint in the
3 Plaintiffs and the State submitted briefs stating that Knapp and Casella were traveling eastbound, the motorcycles were traveling westbound, and the store is located on the westbound side of the highway. WaWa's brief, the trial court opinion, police reports, and expert reports in the record indicate Knapp and Casella were traveling westbound, the motorcycles were traveling eastbound, and the store is located on the eastbound side of the highway. We proceed on the assumption that the directions of travel and location of the store were inadvertently switched in the briefs submitted by plaintiffs and the State.
A-4339-18 8 Law Division naming Knapp, the State and WaWa as defendants. 4 The trial
court consolidated the two Buddy complaints. On May 16, 2016, Conneen
filed a complaint in the Law Division naming the State and WaWa as
defendants.5
Plaintiffs allege Wawa was negligent in creating unsafe driveway
entrances to its parking lot and in failing to maintain the premises in a safe
condition for the welfare and protection of its commercial invitees. They
allege WaWa knew or should have known that a dangerous condition –
driveway entrances that attract illegal left turns from Route 322 – existed in
the State's right-of-way and posed a danger to its customers. Plaintiffs allege
WaWa should have redesigned its parking lot entrances to discourage left
turns, notified the State of the dangerous condition, and/or warned its
customers of the dangers of making an illegal left turn from the westbound
lanes of the highway.
Plaintiffs allege the State was negligent in creating an unsafe condition
by failing to properly maintain the roadway in a safe condition and to exer cise
4 Jennifer and the Estate also named Atlantic County and Folsom Borough as defendants. The claims against those defendants are not before the court. 5 Conneen also named the State Department of Transportation (DOT) as a defendant. We refer to the State and DOT collectively as "State." Conneen alleged claims against defendant Adamucci Associates that are not before us.
A-4339-18 9 proper control, supervision, maintenance, repair, and general safekeeping of
the roadway, despite the fact that it knew or should have known that a
dangerous condition existed in the roadway and in its right-of-way. Plaintiffs
seek compensatory and punitive damages for their injuries.
Conneen moved pursuant to Rule 4:38-1(a) to consolidate his complaint
with the Buddy complaints. Jennifer and the Estate joined his motion.
On March 6, 2019, the trial court issued a written opinion denying the
motion. The court found that the Buddy and Conneen matters did not invol ve
the same underlying transaction or common issues of fact because they arose
from different motor vehicle accidents that occurred a year apart. In addition,
the court noted that the accidents involved drivers heading to different
driveway entrances, a significant distinction because the experts whose reports
were submitted on then-pending summary judgment motions based their
opinions on the driveways' distances from the Cains Mill Road intersection.
The court also found that because the Buddy accident resulted in a death and
the Conneen matter concerned solely injuries, proof of damages at trial would
be meaningfully different. Finally, the court concluded that the facts in the
Buddy cases would be "highly prejudicial" to the defendants in the Conneen
case, as the jury would likely assume defendants were on notice of the
A-4339-18 10 allegedly dangerous condition. A March 6, 2019 order memorializes the
court's decision.
The parties also cross-moved for summary judgment. Plaintiffs relied on
two access management 6 experts, Phillip Demosthenes and Christopher
Huffman, P.E., whose qualifications are not disputed. Huffman opined that
Wawa violated State regulations, industry standards, and company policy by
designing and maintaining a site plan that placed access connections within the
functional intersection area of a four-lane highway, and in a way that failed to
control, if not eliminate, left turns into or out of the parking lot. He identified
an accident at the site on February 22, 2012, which he found to be "very
similar" to the Buddy and Conneen accidents, as well as other accidents in the
area of the driveway entrances. He reasoned that once a pattern of left -turn
crashes involving vehicles entering or exiting the parking lot to Route 322
occurred, Wawa should have taken steps to reconfigure its parking lot and
driveway entrances for the benefit and safety of its customers.
Demosthenes opined that the State created dangerous conditions on its
property through unsafe access areas, in violation of its existing regulations
6 "Access management (AM) is the proactive management of vehicular access points to land parcels adjacent to all manner of roadways." Federal Highway Administration, What Is Access Management? (Feb. 15, 2017), https://ops.fhwa.dot.gov/access_mgmt/what_is_accsmgmt.htm.
A-4339-18 11 and industry standards. He opined that the driveway entrances do not meet
current safety standards and that the State failed to follow its procedures when
it did not inspect and remedy the dangerous conditions, including closing both
driveway entrances along Route 322, when it engaged in improvement projects
in the area of the store in 1993 and 2010. He concluded that the Buddy and
Conneen crashes were caused by the dangerous conditions the State allowed to
persist.
The State submitted an expert report from an engineer who opined that
the cause of the accidents were Knapp's and Casella's decisions to make an
illegal left turn to access the driveway entrances. According to the expert, the
drivers failed to give meaning and purpose to traffic control devices in place
on Route 322, such as signals, striping, and signage, intended to prevent
vehicles from making a left turn across two lanes of opposing traffic. The
expert concluded that if Knapp and Casella had obeyed the "rules of the road"
and used the jug handle to access the WaWa parking lot the accidents would
not have happened.
WaWa's engineering expert reached the same opinion, concluding that
Knapp and Casella caused the accidents by violating motor vehicle laws and
disregarding the jug handle. In addition, he opined that WaWa had no duty to
provide signage or prohibitive measures to prevent illegal turns by motorists
A-4339-18 12 on the highway because the "striped median prohibits these movements" as
provided by N.J.S.A. 39:4-82.1.
The court also considered the deposition testimony of Marta Harrison,
the general manager of the store since 2012. She testified that she used the jug
handle to access the Wawa because she believed that making left turns into the
store from the westbound lanes of Route 322 was "not safe." She noted the
"double yellow lines" and "a sign" indicating that all turns should be made
from the jug handle and stated that "[i]t seem[ed] safer to [her] to follow the
law and rules." Harrison stated that she was not tasked with monitoring
motorists who might access the parking lot by making an illegal left turn on
the highway.
Wawa argued it did not owe plaintiffs a duty of care with respect to the
design of the driveway entrances. In addition, it asserted that the driveway
entrances were not dangerous conditions and that the actions taken by Knapp
and Casella were illegal, unnecessary to enter the parking lot, and did not
comport with the intended use of the driveway entrances. Wawa also argued
the record contains no proof it invited drivers to make an illegal turn across the
highway to access its property and further submitted that there was a legal
means to access the store parking lot for westbound drivers on Route 322
through use of the jug handle. WaWa argued it did not have a duty to enforce
A-4339-18 13 traffic laws on a public roadway and that the State controls regulation of the
driveway entrances on its property.
The State argued it was entitled to immunity for all claims asserted
against it under three provisions of the TCA: (1) law enforcement immunity,
N.J.S.A. 59:2-4, for an alleged failure to enforce its regulations; (2) licensing
immunity, N.J.S.A. 59:2-5, for any permitting decision, or alleged absence
thereof, related to the driveway entrances; and (3) inspection immunity,
N.J.S.A. 59:2-6, for any alleged failure to inspect the driveway entrances. In
addition, the State argued the statutory exception to immunity for dangerous
conditions of public property did not apply because the driveway entrances
were not dangerous conditions, use of the driveway entrances with due care
did not create a reasonably foreseeable risk of the injuries suffered by
plaintiffs, and the State did not act in a palpably unreasonable manner in
failing to ameliorate any such risk if it existed.
On May 7, 2019,7 the trial court issued a written opinion granting
summary judgment to defendants on all claims. The court rejected plaintiffs'
arguments that WaWa violated a duty of care to plaintiffs. The court found
7 Each trial court order resolving the parties' summary judgment motions is dated May 7, 2019, and refers to an accompanying written memorandum of decision. The written memoranda of decision, however, are dated May 8, 2019, but were uploaded to the court's electronic filing system on May 7, 2019.
A-4339-18 14 that Knapp's and Casella's acts, which were the cause of the accidents, and the
collisions, happened in the eastbound lanes of Route 322 and not on WaWa's
property. Noting long-established precedents that a commercial landowner has
no duty to regulate or control the conditions of property it does n ot own, the
court found that WaWa did not owe a duty to plaintiffs related to the accidents.
The court recognized, however, that in limited circumstances a
commercial landowner's duty to protect its invitees may extend beyond its
premises for activities from which it directly benefits. The court found that it
was reasonable to conclude that Wawa could have received an economic
benefit from drivers accessing its parking lot by making an illegal left turn
from the highway. However, the court concluded that westbound drivers were
provided a safe path to enter the parking lot through the jug handle, relieving
WaWa of any duty to take steps to prevent illegal left turns into its driveway
entrances. Lastly, the court found that even if the driveway entrances w ere
dangerous conditions of State property, WaWa had no legal duty to report
those conditions to government entities with the authority to remedy them.
The court concluded that the State is absolutely immune from liability
pursuant to N.J.S.A. 59:2-4, for its alleged failure to enforce its regulations,
N.J.S.A. 59:2-5, for permitting decisions concerning the driveway entrances,
and N.J.S.A. 59:2-6, for its failures to inspect the driveway entrances. The
A-4339-18 15 court also concluded that the statutory exception to immunity for dangerous
conditions of public property was inapplicable. As the court explained,
[t]he placement of the driveways does not constitute a dangerous condition . . . because if drivers exercise due care, the subject accidents would not be reasonably foreseeable. Route 322 is divided by double solid yellow lines prohibiting left turns into the subject driveways. Clearly, illegally crossing the highway to make the left turn is not exercising due care. If motorists were exercising due care by utilizing the designated . . . jug handle to access the Wawa, accidents such as these would not be reasonably foreseeable.
On May 7, 2019, the court entered orders granting summary judgment in
favor of the State and against plaintiffs on all claims alleged.
Jennifer, the Estate, and Conneen appealed from the May 7, 2019 orders
and the March 6, 2019 order denying consolidation. We thereafter
consolidated the appeals for briefing and argument.
Plaintiffs raise the following arguments.
POINT I8
THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT TO PLAINTIFFS AND GRANTING IT TO WAWA BECAUSE WAWA MAINTAINED A DANGEROUS CONDITION WITHIN THE SCOPE OF INVITATION AND INJURY WAS REASONABLY FORESEEABLE.
8 The point headings have been modified for ease of reading.
A-4339-18 16 POINT II
THE TRIAL COURT ERRED WHEN IT FAILED TO FIND A SEPARATE DUTY ON WAWA TO PROVIDE SAFE PASSAGE FOR THE PUBLIC IT INVITED ONTO ITS PROPERTY THROUGH A DANGEROUS DRIVEWAY SYSTEM.
POINT III
THE TRIAL COURT OVERLOOKED WAWA'S DUTY TO REMEDY THE DANGEROUS CONDITION AND IMPROPERLY SHIFTED THE BURDEN OF NOTICE FROM WAWA TO THE STATE.
POINT IV
THE TRIAL COURT'S DECISION TO DISMISS WAWA SOLELY BASED ON TWO "ALTERNATE PATH" CASES RESTS UPON LEGAL AND FACTUAL ERRORS WHICH UNFAIRLY PUNISH INNOCENT PLAINTIFFS AND REWARD A CULPABLE COMMERCIAL OCCUPIER.
POINT V
THE COURT ERRED IN GRANTING THE STATE SUMMARY JUDGMENT BY RELYING UPON THREE STATUTORY IMMUNITY PROVISIONS WHICH DO NOT APPLY.
POINT VI
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING CONSOLIDATION FOR TRIAL.
A-4339-18 17 II.
When reviewing an order granting summary judgment, we apply the
same standard used by the trial court. Steinberg v. Sahara Sam's Oasis, LLC,
226 N.J. 344, 366 (2016). Summary judgment is appropriate where "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).
[W]hether there exists a 'genuine issue' of material fact that precludes summary judgment requires the [court] to 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 dispute issue in favor of the non-moving party.
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]
In the absence of genuine issues of material fact, we must "decide
whether the trial court correctly interpreted the law." DepoLink Court
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.
Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494
(App. Div. 2007)). We review issues of law de novo, according no deference
to the trial court's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478
(2013).
A-4339-18 18 III.
We begin with plaintiffs' challenge to the trial court's entry of summary
judgment in favor of WaWa. "To sustain a cause of action for negligence, a
plaintiff must establish four elements: '(1) a duty of care, (2) a breach of that
duty, (3) proximate cause, and (4) actual damages.'" Townsend v. Pierre, 221
N.J. 36, 51 (2015) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)).
Plaintiffs allege Wawa had a non-delegable duty as a commercial property
owner to provide customers with safe driveway entrances to its parking lot or
to warn them of the dangers of making an illegal left turn from the westbound
lanes of Route 322 to enter the parking lot.
Our focus is on the first required element: the presence of a legal duty.
The existence and scope of a duty is a legal question for the court. Estate of
Desir v. Vertus, 214 N.J. 303, 322 (2013). We review a trial court's
determination of that question de novo. Broach-Butts v. Therapeutic
Alternatives, Inc., 456 N.J. Super. 25, 33 (App. Div. 2018), certif. denied, 236
N.J. 606 (2019).
"We are not bound by the opinion of plaintiffs' expert that the
recognition of such a duty is legally required" because "'[a]n expert's opinion
on a question of law is neither appropriate nor probative.'" Est. of Campagna
v. Pleasant Point Props., LLC, 464 N.J. Super. 153, 171 (App. Div. 2020)
A-4339-18 19 (quoting Kamienski v. State, 451 N.J. Super. 499, 518 (App. Div. 2017)),
certif. denied, 245 N.J. 585 (2021). The "actual imposition of a duty of care
and the formulation of standards defining such a duty derive from
considerations of public policy and fairness." Vertus, 214 N.J. at 322 (quoting
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438 (1993)).
While "[t]here is no bright line rule that determines when one owes a
legal duty," Badalamenti v. Simpkiss, 422 N.J. Super. 86, 94 (App. Div. 2011),
in examining "[w]hether a person [or entity] owes a duty of reasonable care
toward another," courts must assess
whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors – the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.
[Hopkins, 132 N.J. at 439 (citations omitted).]
While "[f]oreseeability of injury to another is important, [it is] not dispositive"
as "[f]airness, not foreseeability alone, is the test.'" Vertus, 214 N.J. at 325
(internal quotations omitted).
A-4339-18 20 Plaintiffs' claims are based on principles of premises liability. "The
proprietor of premises to which the public is invited for business purposes of
the proprietor owes a duty of reasonable care to those who enter the premises
upon that invitation to provide a reasonably safe place to do that which is
within the scope of the invitation." Butler v. Acme Markets, Inc., 89 N.J. 270,
275 (1982). The landowner has a "general common law duty to business
invitees – to maintain its premises in a condition safe from defects that the
business is charged with knowing or discovering . . . ." Stelluti v. Casapenn
Enters., LLC, 203 N.J. 286, 311 (2010).
We agree with the trial court's conclusion that WaWa owed no duty to
plaintiffs because their injuries did not occur on WaWa's premises. Knapp and
Casella collided with plaintiffs' motorcycles in the eastbound lanes of Route
322. Although the drivers were headed in the direction of an entrance to the
WaWa parking lot, they initiated their illegal left turns on State property and
caused injuries to plaintiffs before reaching WaWa's property. Under the
general rule, premises liability does not apply here.
With respect to off-premises injuries, "a premises owner owes a duty of
care to one injured off premises if the source of the injury is a dangerous
condition on the premises and if the injury is the result of a foreseeable risk to
an identifiable person." Vertus, 214 N.J. at 318 (emphasis added). For
A-4339-18 21 example, in Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 404-05 (2006), the
Court found that an employer owed a duty of care to its employee's wife who
was exposed to and injured by asbestos carried home from the employer's
premises on the employee's clothing. Although off-premises liability has been
extended in limited circumstances, we see no basis in the record for such an
extension in this instance.
The holding in Kuzmicz v. Ivy Hill Apartments, Inc., 147 N.J. 510
(1997), is instructive on this point. The plaintiff in Kuzmicz "took a shortcut
along a winding path through [an] unlighted and wooded lot" owned by a
board of education on his way from a shopping plaza to an apartment complex
where he was a tenant. Id. at 512. He chose this path over a "lighted sidewalk
run[ning] from the shopping plaza to the apartment complex" and entered the
apartment complex property through a hole in a fence dividing the properties.
Ibid. The apartment complex manager testified that he "was aware that tenants
and employees used the path to go to the shopping plaza . . . ." Id. at 513.
While on the board of education's property, the plaintiff was stabbed. Id. at
512.
The plaintiff sued the apartment complex owner, alleging it breached a
duty of care to him by not mending the fence to discourage use of the path
A-4339-18 22 through the wooded lot or by warning him of the risk of assault on the board's
property, which had a history as the situs of illegal activity. Id. at 511-12.
In Kuzmicz, the Court held that the apartment complex owner owed no
duty of care to the plaintiff. It began its analysis by observing that "[t]he issue
is whether, 'in light of the actual relationship between the parties under all of
the surrounding circumstances,' the imposition of a duty on the landowner is
'fair and just.'" Id. at 515 (alteration in original) (quoting Brett v. Great Am.
Recreation, 144 N.J. 479, 509 (1996)). The Court noted that "[c]ritical to the
imposition of liability is a direct economic benefit to the commercial
landowner from the path taken by the injured party and the absence of an
alternative route." Id. at 519.
The Court found that a duty of care did not arise because nothing in the
record supported the conclusion that the apartment complex owner benefitted
economically from the tenants' use of the off-premises path, id. at 521, and the
apartment complex owner did not have possession of, or a right to control, the
property where the assault took place, id. at 517. In addition, the Court found
that the unrepaired fence opening did not create a duty on the part of the
apartment complex owner because it provided its tenants with a safe passage to
the public sidewalk to get to the shopping plaza. Id. at 522. The plaintiff's
A-4339-18 23 election to take a shorter, unsafe path for his convenience was not the fault of
the apartment complex owner. Ibid.
The Court further held that the apartment complex manager's "awareness
of criminal activity on the Board's property does not suffice to impose liability
on [the apartment complex] for that activity." Id. at 521. The Court reasoned
that the plaintiff "was injured not because [the apartment complex] failed to
exercise due care on its property, but because the Board and others failed to
prevent criminal activity on the Board's property." Ibid.
Similarly, in MacGrath v. Levin Properties, 256 N.J. Super. 247 (App.
Div. 1992), we affirmed the grant of summary judgment in favor of a shopping
center owner based on a finding that it did not owe a duty of care to a patron
who was injured off premises. In that case, the plaintiff was struck by a car
after she left the shopping center and attempted to cross Route 22, an adjacent
State highway, on foot at a vehicle entrance driveway to the shopping center.
Id. at 250. We rejected her claim that the shopping center owner owed her a
duty to create a safe pedestrian passage across the highway or to warn her of
the dangers of crossing the highway on foot. We reasoned that
[j]ust as no one could reasonably suggest that the owner of commercial property owes a duty to pedestrians crossing the street to keep an abutting paved road in repair, it cannot be fairly suggested that the owner owes a duty to protect the [plaintiff] from the obvious hazards of the abutting highway. Liability
A-4339-18 24 rests with the State, if there exists a dangerous condition in the public way which caused the accident, or with the operator of the vehicle whose negligence caused the injuries to the [plaintiff].
[Id. at 253 (citation and internal quotation marks omitted).]
We concluded that extending a duty to the shopping center owner merely
because patrons use an adjoining public highway to access its property "would
impose a similar duty upon all proprietors owning property abutting a public
street who enjoy the 'benefit' of traffic access from the street to thei r business
enterprises." Id. at 255.
In light of these precedents, we agree with the trial court's conclusion
that WaWa did not have a duty of care to plaintiffs to prevent the illegal acts
of Knapp and Casella on State property. Wawa neither owns nor has control
over the eastbound lanes of Route 322, where Knapp and Casella attempted to
execute their illegal turns and collided with the plaintiffs' motorcycles. In
addition, the driveway entrances, which plaintiffs allege to be dangerous
conditions, are not on WaWa's premises. They are situated in the State's right-
of-way and are subject to its sole control. Thus, an often crucial element of
off-premises liability – an on-premises dangerous condition – is not present
here.
A-4339-18 25 We also agree with the trial court's conclusion that any economic benefit
to WaWa from customers making an illegal left turn into the driveway
entrances is insufficient to create a legal duty. See Pote v. City of Atlantic
City, 411 N.J. Super. 354, 368 (App. Div. 2010) (rejecting the argument that
economic benefit "automatically translates into a corresponding duty to protect
[the defendant's] patrons from the hazards of the public thoroughfare"). There
is no support in the record for plaintiffs' claim that WaWa invited drivers to
make an illegal turn to enter its parking lot and nothing in the record suggests
WaWa relied on patrons to make illegal left turns to generate income
necessary to operate the store. In addition, the record clearly establishes that a
safe alternative route existed for westbound drivers to access WaWa's
driveway entrances. The absence of an alternative route is "critical" to off -
premises liability. Kuzmicz, 147 N.J. at 519.
We are not persuaded by plaintiffs' argument that WaWa, aware through
its manager of the dangerous nature of left turns into its driveway entrances,
should be charged with a duty to change its parking lot design or report to the
State the need to alter or close the driveway entrances. Such a holding – in the
absence of specific conduct by the landowner enticing motorists to make
illegal turns – would amount to an expansion of a duty to all commercial
landowners along a State highway to prevent motor vehicle violations by
A-4339-18 26 potential customers and ameliorate the effects of those violations. Th at
outcome would be unworkable and unfair, particularly in light of regulations
prohibiting private property owners from controlling vehicular traffic without
State approval.
Nor do we see support in the record for plaintiffs' argument that WaWa
breached a duty to warn its customers of the dangers of making an illegal left
turn from the westbound lanes of the highway. It is not clear how such a
warning would be delivered to drivers who had not yet reached the store, as
was the case here. In addition, we decline plaintiffs' invitation to impose on
commercial property owners the obligation to warn business patrons of the
obvious danger posed by driving over two sets of solid yellow lines to cross
two lanes of opposing traffic on a highway with a fifty-five-mile-per-hour
speed limit.
We also agree with the trial court's finding that WaWa did not violate its
duty to address dangerous conditions on its property for the reasons discussed
in greater detail below. In light of our conclusion that WaWa had no duty of
care to plaintiffs, we need not address whether it breached any such duty or
whether that breach was the proximate cause of plaintiffs' injuries.
A-4339-18 27 IV.
We turn to the trial court's entry of summary judgment in favor of the
State. "Generally, immunity for public entities is the rule and liability is the
exception." Fleuhr v. City of Cape May, 159 N.J. 532, 539 (1999). "[P]ublic
entities shall only be liable for their negligence within the limitations of" the
TCA. N.J.S.A. 59:1-2. The requirements of the TCA are "stringent" and place
a "heavy burden" on plaintiffs seeking to establish public entity liability.
Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 136 (1993). We examine, in
turn, the statutory immunities the trial court concluded barred plain tiffs'
claims.
Pursuant to N.J.S.A. 59:2-4, "[a] public entity is not liable for any injury
caused by adopting or failing to adopt a law or by failing to enforce any law."
See Bombace v. City of Newark, 125 N.J. 361, 366 (1991) (holding that the
TCA "grants an unqualified or absolute immunity to both public entities and
their employees from liability for injuries caused by a failure to enforce the
law."). "[A]pplication of the absolute immunity under [N.J.S.A. 59:2-4] is
determined by whether the critical causative conduct by government
employees consists of non-action or the failure to act with respect to the
enforcement of the law." Lee v. Brown, 232 N.J. 114, 127 (2018). Put simply,
"if conduct giving rise to injury consists only of non-action or the failure to act
A-4339-18 28 in the enforcement of the law, [the public entity] is entitled to absolute
immunity, even though other antecedent or surrounding conduct might
constitute acts or action that would otherwise be subject to the qualified
immunity." Bombace, 125 N.J. at 370; see Lee, 232 N.J. at 128 (noting that
public employees are entitled only to qualified immunity when they are
enforcing the law pursuant to N.J.S.A. 59:3-3).
The critical causative conduct plaintiffs allege resulted in their injuries is
the State's alleged inaction in enforcing its regulations related to access
violations from public roadways by failing to close the WaWa driveway
entrances or otherwise preventing motorists from making illegal left turns to
access the parking lot. As the conduct complained of relates to the State's
alleged omissions, rather than affirmative acts, we agree with the trial court's
conclusion that enforcement immunity under N.J.S.A. 59:2-4 applies. The
State cannot be held liable for damages for its alleged failure to apply existing
or past regulatory requirements to WaWa's driveway entrances.
N.J.S.A. 59:2-5, the licensing immunity provision, states as follows:
[a] public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit . . . or similar authorization where the public entity . . . is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked.
A-4339-18 29 Immunity under N.J.S.A. 59:2-5 "is pervasive and applies to all phases of the
licensing function, whether the governmental acts be classified as discretionary
or ministerial." Malloy v. State, 76 N.J. 515, 520 (1978). As the Court
explained,
[l]icensing activity is a vital exercise of governmental authority. In this State there are literally millions of licenses, certificates, permits and the like applied for, issued, renewed or denied. It is inevitable that with such a staggering volume of activity, mistakes, both judgmental and ministerial, will be made. The purpose of the immunity is to protect the licensing function and permit it to operate free from possible harassment and the threat of tort liability.
[Id. at 521.]
Plaintiffs argue the trial court erred when it applied this provision
because a condition precedent to licensing immunity is the State's issuance of a
license or other approval. There is no evidence in the record that the State
issued a permit for the construction of the driveway entrances in 1969-70. We
agree, however, with the State's argument that even if it did not grant a permit
or other form of approval at the time of construction, the driveway entrances
were implicitly approved by statute in 1992. See City of Linden v. Benedict
Motel Corp., 370 N.J. Super. 372, 390-91 (App. Div. 2004) (explaining that
"N.J.S.A. 27:7-92a requires access permits for anyone seeking access to a
State highway, but protects or 'grandfathers' access 'in existence prior to
A-4339-18 30 January 1, 1970,' as if a permit had been issued."). Thus, with respect solely to
the issue of the State issuance of an approval for the construction of driveway
entrances and its alleged failure to revoke that approval in later years,
plaintiffs' claims are barred by N.J.S.A. 59:2-5.
We acknowledge the State's licensing immunity does not insulate it from
liability for a dangerous condition on State property. See Ball v. New Jersey
Bell Tel. Co., 207 N.J. Super. 100 (App. Div. 1986). However, as is discussed
at length below, we agree with the trial court's conclusion that dangerous
condition liability, as defined by N.J.S.A. 59:4-2, is inapplicable here.
N.J.S.A. 59:2-6, the inspection immunity provision, states that
[a] public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property; provided, however, that nothing in this section shall exonerate a public entity from liability for negligence during the course of, but outside the scope of, any inspection conducted by it, nor shall this section exonerate a public entity from liability for failure to protect against a dangerous condition as provided in [N.J.S.A. 59:4-2].
The statute unambiguously contradicts plaintiffs' argument that the trial court
erred when it granted inspection immunity because the State did not inspect
the driveway entrances, and notice their alleged non-compliance with current
regulations, during improvement projects along Route 322 in 1993 and 2010.
A-4339-18 31 We agree with the trial court's conclusion that the State is not subject to
liability due to a dangerous condition of its property created by the driveway
entrances. N.J.S.A. 59:4-2 provides:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in a 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 protect against the condition or the failure to take such action was not palpably unreasonable.
[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." In order to pose a "'substantial risk of injury' a condition of property
cannot be minor, trivial, or insignificant. However, the defect cannot be
A-4339-18 32 viewed in a vacuum. Instead, it must be considered together with the
anticipated use of the property . . . . " Atalese v. Twp. of Long Beach, 365
N.J. Super. 1, 5 (App. Div. 2003). "[A] dangerous condition of property may
be found to exist when an unreasonable risk of harm is created by the
combination of a defect in the property itself and the acts of third parties."
Longo v. Aprile, 374 N.J. Super. 469, 474-75 (App. Div. 2005) (alteration in
original) (quoting Roe by M.J. v. N.J. Transit Rail Operations, Inc., 317 N.J.
Super. 72 (App. Div. 1998)).
N.J.S.A. 59:4-3 provides:
a. A public entity shall be deemed to have actual notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
b. A public entity shall be deemed to have constructive notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.
We agree with the trial court's conclusion that the absence of due care by
Knapp and Casella when using the driveway entrances is determinative of
whether the dangerous condition exception applies. "If a public entity's
property is dangerous only when used without due care, the property is not in a
A-4339-18 33 'dangerous condition.'" Garrison v. Twp. of Middletown, 154 N.J. 282, 287
(1998). "When the property poses a danger to all users," however, "an injured
party may establish that property was in a dangerous condition
notwithstanding his or her failure to exercise due care." Id. at 292.
The test to assess whether those involved in bringing about an injury to
another were exercising due care is two-fold. Once a dangerous condition is
found to exist, a court must determine: (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." Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 125
(2001). The Garrison Court explained that use of the subject public property
must be "objectively reasonable from the community perspective" to be
considered as used "with due care." 154 N.J. at 291. The Court also clarified
that "'used with due care' refers not to the conduct of the injured party, but to
the objectively reasonable use by the public generally." Ibid. Accordingly,
whether a member of the public acted with due care on public property
depends on whether the property was used in a reasonably foreseeable manner .
The record supports the trial court's conclusion that the driveway
entrances did not pose a substantial risk of injury when used with due care in a
A-4339-18 34 manner in which it is reasonably foreseeable that it will be used. The
driveway entrances are not intended to be used for illegal left turns by
westbound drivers on Route 322. Breaking the law by crossing two sets of
yellow lines to cross two lanes of opposing highway traffic to access the
driveway entrances is not the exercise of due care. The risk of danger created
by such highly dangerous maneuvers is objectively unreasonable and
inconsistent with the intended use of the driveway entrances, which are
designed to permit eastbound motorists to enter the WaWa parking lot.
For these same reasons, we reject plaintiffs' argument that WaWa
breached its duty to ameliorate dangerous conditions on its property. A
commercial enterprise "must exercise reasonable care for an invitee's safety,"
which "includes making reasonable inspections of its property and taking such
steps as are necessary to correct or give warning of hazardous conditions or
defects actually known to the landowner." Monaco v. Hartz Mountain Corp.,
178 N.J. 401, 414 (2004) (citing Hopkins, 132 N.J. at 434). In this vein, a
commercial "landowner is liable to an invitee for failing to correct or warn of
defects that, by the exercise of reasonable care, should have been discovered."
Id. at 414-15. As explained above, the driveway entrances are not dangerous
conditions when used with due care for their intended purpose and are not on
WaWa's property.
A-4339-18 35 To the extent we have not specifically addressed any of plaintiffs'
remaining claims, we conclude they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
In light of our conclusions, we affirm the May 7, 2019 orders granting
summary judgment to the State and against plaintiffs on all claims. 9 We
recognize the tragic nature of these accidents caused by law-breaking drivers,
but discern no legal basis to impose liability on the defendants before us.
Affirmed.
9 Because we affirm the trial court's summary judgment orders, we need not address its March 6, 2019 order denying Conneen's motion to consolidate.
A-4339-18 36