NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5185-18T3
JESSICA TAWIL,
Plaintiff-Appellant,
v.
SHIVAM TRAVEL, INC., a/k/a SHIVAM TRAVEL, DHRUV BHATT, SAMANTHA TRIPP, CHRISTINA TRIPP, 209 FRANKLIN CORPORATION, STEVEN SCHMIDT, ESTATE OF MAUREEN SCHMIDT, DANIEL TRIPP, COUNTY OF PASSAIC, NEW JERSEY DEPARTMENT OF TRANSPORTATION and STATE OF NEW JERSEY,
Defendants,
and
TOWNSHIP OF WEST MILFORD,
Defendant-Respondent, _______________________________
Argued October 13, 2020 – Decided December 7, 2020 Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1277-17.
Steven Benvenisti argued the cause for appellant (Davis, Saperstein & Salomon, PC, attorneys; Steven Benvenisti, of counsel and on the brief; Jorge R. de Armas, on the brief).
R. Scott Fahrney argued the cause for respondent (Kaufman, Semeraro & Leibman, LLP, attorneys; R. Scott Fahrney, on the brief).
PER CURIAM
Plaintiff Jessica Tawil appeals from an order granting summary judgment
to defendant Township of West Milford, dismissing her complaint for damages
arising from the extensive personal injuries she sustained as a passenger in a
motor vehicle accident. In her complaint, plaintiff alleged that defendant was
liable because it failed to install advisory speed reduction signs along the curved
portion of the road where the accident occurred. The motion judge granted
summary judgment after concluding defendant was immune from liability under
New Jersey's Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA).
On appeal, plaintiff argues that the judge erred because immunity did not
apply as defendant's failure to install the signs created a dangerous condition
about which defendant had notice, defendant's inaction was "palpably
A-5185-18T3 2 unreasonably," and as explained by plaintiff's expert, under the Manual on
Uniform Traffic Control Devices (MUTCD), defendant was required to install
an advisory speed reduction plaque and a curve warning sign in addition to the
already-present black-and-yellow chevron signs on the road that indicated an
approaching curve. We disagree with plaintiff's contentions and affirm,
substantially for the reasons expressed by the motion judge.
On November 15, 2014, then sixteen-year-old plaintiff was a rear-seat
passenger in a car driven by her friend Dhruv Bhatt.1 At the time, the weather
was clear and the roads were dry. As he drove along Clinton Road in defendant's
community, Bhatt did not use his cell phone nor was he otherwise distracted, he
had not consumed any alcohol, and there were no known mechanical issues with
the vehicle.
As Bhatt drove on Clinton Road, which he had previously driven upon
"close to about a dozen times," he approached a curve and his vehicle began to
understeer. Bhatt then lost control of the vehicle, which veered off the side of
the road and collided with a nearby tree. Plaintiff was tragically and severely
injured in the accident, sustaining injuries that rendered her a paraplegic.
1 Bhatt and all of the other defendants named in the complaint were either dismissed from the action by agreement or court order prior to this appeal being filed. A-5185-18T3 3 When police responded to the accident scene, Bhatt told an officer that he
was driving somewhere between thirty-five and forty-five miles per hour and
that he recalled the speed limit for the road being thirty-five miles per hour. The
Crash Data Retrieval (CDR) system from Bhatt's vehicle disclosed that
approximately three seconds prior to the crash, the vehicle was traveling just
over forty-eight miles per hour.
At his deposition, Bhatt could not recall whether there were any warning
signs for the curve on his side of the road but admitted that a picture shown to
him which depicted the location of the incident when approaching from the
opposite direction contained yellow-and-black warning signs. According to
Police Officer Suzanne Novakowski, one of the responding officers, on the
portion of road where Bhatt was driving there were at least four reflective arrows
indicating a curve was approaching. She stated that Bhatt's driving over thirty -
five miles per hour was a factor contributing to the accident. Sergeant George
Richnavsky, another responding police officer, stated that Clinton Road has
chevron signs on the road surface indicating an approaching curve.
On January 7, 2015, plaintiff served defendant with a notice of tort claim
as required by the TCA. In the notice, plaintiff stated defendant "fail[ed] to
provide adequate traffic signs, markings, or other devices for the safety of those
A-5185-18T3 4 traveling at or near Clinton Road." Approximately two years later, plaintiff filed
a complaint, which she later amended to include defendant. Defendant filed an
answer and the parties thereafter engaged in discovery.
During discovery, various fact witnesses testified at depositions and
expert reports were exchanged about whether there was adequate signage
installed on Clinton Road relating to its curved portion where the accident
occurred. Eric Miller, defendant's supervising engineer, testified that the
maximum speed limit along Clinton Road was either twenty-five or thirty-five
miles per hour, depending on the section.
Gordon Meth, from Robson Forensics, prepared an expert report on
plaintiff's behalf. After reviewing a litany of materials, including police reports,
various deposition transcripts, photos of the accident scene, manuals on r oad
design and traffic control devices, and defendant's ordinances, Meth concluded
that the "failure of [defendant] to provide either appropriate speed limit signs
and/or turn[-]warning signs along Clinton Road created a palpably unreasonable
dangerous condition to motorists."
According to Meth, the speed limit at the scene was thirty-five miles per
hour and there was a chevron sign indicating the location of the curve and a
speed limit sign in advance of the accident site. Meth opined that defendant
A-5185-18T3 5 should have included "horizontal alignment warning signs" in the immediate
vicinity of the accident because of the fifteen-miles-per-hour difference between
Clinton Road's thirty-five-miles-per-hour speed limit and the appropriate
advisory speed limit for the curve of twenty miles per hour. Meth based this
analysis on guidance provided by the MUTCD. 2 However, the MUTCD
guidance applied to roads that had an average of 1000 vehicles traveling on them
every day. Meth did not perform or rely upon any traffic studies or empirical
data about the road's traffic volume.
Meth also considered the area's history of car accidents. He found that in
the approximately seven years before plaintiff's accident there were twenty-six
accidents near the site. Of these accidents, four occurred at or near the same site
as plaintiff's accident within a three-year period from 2007 to 2010. Aside from
noting that they were not attributable to deer or bears in the roadway, Meth did
not provide any information about the cause of those accidents.
2 This manual has been adopted by the New Jersey Department of Transit under N.J.A.C. 16:27-3.1 as the uniform system of traffic control signal devices pursuant to N.J.S.A. 39:4-120 and N.J.S.A. 39:4-183.27. According to the manual, Horizontal Alignment Warning signs may be used on roadways with less than 1000 average cars per day subject to engineer discretion, and advisory speed plaques should only be used to supplement a warning sign. They "shall not be installed as a separate sign installation." A-5185-18T3 6 John Desch, P.E. and other members of his firm, John Desch Associates
(collectively JDA), prepared an expert report on behalf of defendant. According
to JDA and information from the New Jersey Department of Transportation,
Clinton Road had an estimated 185 vehicles traveling on it each day. In
reviewing the onboard video recordings captured from the police vehicles that
evening, JDA noted that there were two twenty-five-miles-per-hour speed limit
signs and one thirty-five-miles-per-hour sign along northbound Clinton Road
and two black-and-yellow chevron signs on either side of the road at the scene
of the collision that warned of the oncoming curve.
According to JDA, from 2004 to 2017, there were a total of 115 accidents
along Clinton Road. Thirty-two of those occurred within the same approximate
location as this collision, and according to JDA, four collisions out of those
thirty-two "possibly occurred at the same location and northerly travel direction
as this collision." Of the four accidents, two were due to excessive speed and
the other two involved the drivers' inability to negotiate the curve. Based on the
infrequency of collisions at the site, JDA believed "the installation of advanced
warning signs additional to the already posted leftward chevron warning signs
at the collision site/leftward curve was not warranted by the motor vehicle crash
history."
A-5185-18T3 7 JDA also noted that, based on the CDR, Bhatt was traveling at forty-eight
miles per hour "prior to his initiation of evasive action along the curve." In
concluding its report, JDA stated that Bhatt's "excessive travel speed was the
most significant contributing factor for this single vehicle collision." Moreover,
according to JDA, it was "apparent from the CDR data that . . . Bhatt did not
apply the brakes until he was near or at the apex of the leftward curve in the
roadway."
In a responsive, supplemental report, Meth addressed JDA's contention
about the inapplicability of the MUTCD to Clinton Road. In response, he stated
that somewhere along Clinton Road he believed that the road could have met the
1000 vehicle per day standard because it served as a feeder road connecting two
major roadways.
After discovery concluded, on November 2, 2018, defendant filed its
motion for summary judgment. Plaintiff filed opposition and the motion judge
heard oral argument on December 10, 2018. On December 18, 2018, the judge
granted summary judgment to defendant and placed his decision on the record
that day.
In his oral decision, the judge stated that plaintiff's "only claim [was] that
the defendant . . . failed to install proper warning signs" near the curve on
A-5185-18T3 8 Clinton Road. According to the judge, N.J.S.A. 59:4-5, "specifically and
unambiguously prohibits the [c]ourt from finding liability for injuries arising
out of the public entity or public employees' failure to provide ordinary traffic
signals, signs, markings, or other similar devices." Moreover, the judge noted
that such immunity "applied whether or not the public entity itself created the
condition necessitating the traffic signal or sign."
As for the speed limit at the accident site, citing N.J.S.A. 39:4-98 and
Kolitch v. Lindedahl, 100 N.J. 485 (1985), the motion judge added that "[t]he
s[et]ting of the speed limit in the first instance is a discretionary function. The
lawful limits of speed are simply those that are posted. The onus is on the driver
to drive at an appropriate reduced speed when approaching and going around a
curve." Noting that the speed limit at the curve was thirty-five miles per hour,
the judge stated:
The onus of reducing speed to some appropriate level, when approaching a curve such as the one at Clinton Road is on the driver. The Township cannot be subjected to liability for the posting of a sign, so long as the sign itself does not misinform the public with regard to the actual lawful limit as permitted by statute. Here, not only was a speed limit posted, but Bhatt was aware of the speed limit in the road being [thirty-five] miles per hour. There were also warning signs.
A-5185-18T3 9 Finally, to the extent that plaintiff argued defendant failed to enforce the
thirty-five-miles-per-hour speed limit, N.J.S.A. 59:2-4 "fully immunized public
entities for claims for failing to either adopt or enforce any law." This appeal
followed.
We review summary judgment decisions de novo using the same standard
governing the motion court's decision. RSI Bank v. Providence Mut. Fire Ins.
Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J 22, 38 (2014)).
Under that standard, summary judgment will be granted when "the competent
evidential materials submitted by the parties," viewed in the light most favorable
to the non-moving party, shows that there are no "genuine issues of material
fact" and that "the moving party is entitled to summary judgment as a matter of
law." Grande v. St. Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat,
217 N.J. at 38). If there are no genuine issues of fact, we then decide whether
the trial court's ruling on the law was correct. RSI Bank, 234 N.J. at 472.
The trial court's interpretation and application of the TCA to undisputed
facts is a legal determination that we review de novo. See Jones v. Morey's Pier,
Inc., 230 N.J. 142, 153 (2017); Parsons v. Mullica Twp. Bd. of Ed., 440 N.J.
Super. 79, 83 (App. Div. 2015) ("[O]ur review of the meaning of a statute is de
novo, and we owe no deference to the interpretative conclusions reached by the
A-5185-18T3 10 trial court . . . ." (quoting Wilson ex rel. Manzano v. City of Jersey City, 209
N.J. 558, 564 (2012))).
The TCA governs when public entities are liable for a tort. Ben Elazar v.
Macrietta Cleaners, Inc., 230 N.J. 123, 133 (2017).
The [TCA] modifies the doctrine of sovereign immunity and sets forth the parameters within which an aggrieved party may recover for the tortious acts of public entities . . . . The Act's guiding principle is that immunity from tort liability is the general rule and liability is the exception . . . . [T]he Act imposes strict requirements upon litigants seeking to file claims against public entities.
[O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 344–45 (2019) (citations omitted) (internal quotation marks omitted).]
"[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) (quoting Kahrar v. Borough of
Wallington, 171 N.J. 3, 10 (2002)).
Applying the TCA's guiding principles and our de novo standard of review
to the granting of summary judgment, we first address plaintiff's argument that
her claims are not barred by N.J.S.A. 59:4-5 because the failure to install a
curve-warning sign and an advisory speed plaque, as allegedly required under
the MUTCD, was a ministerial act, not a discretionary one. Specifically,
A-5185-18T3 11 plaintiff argues that defendant created a dangerous condition by incorrectly
"installing a chevron or two without the other signage required to be installed in
conjunction therewith, including a curve warning sign and an advisory speed
plaque." For that reason, plaintiff argues that her claims are permitted by
N.J.S.A. 59:4-4, which imposes liability on a public entity "for injur[ies]
proximately caused by its failure to provide . . . signs, . . . if . . . necessary to
warn of a dangerous condition which endangered the safe movement of traffic
and which would not be reasonably apparent to, and would not have been
anticipated by, a person exercising due care." We disagree.
We conclude that the motion judge correctly applied the immunity found
in N.J.S.A. 59:4-5, which "simply specifies one particular type of discretionary
activity to which immunity attaches." Patrick by Lint v. City of Elizabeth, 449
N.J. Super. 565, 575 (App. Div. 2017) (quoting Aebi v. Monmouth Cnty.
Highway Dep't, 148 N.J. Super. 430, 433 (App. Div. 1977)) (holding that the
"failure to place a sign in a school zone should [not] be analyzed solely [as a]
dangerous condition" and applying the immunity under N.J.S.A. 59:4-5); see
also Weiss v. N.J. Transit, 128 N.J. 376, 385 (1992) ("When the absence of a
traffic signal . . . is the true culprit, government is immune."). That portion of
the TCA states that "[n]either a public entity nor a public employee is liable
A-5185-18T3 12 under this chapter for an injury caused by the failure to provide ordinary traffic
signals, signs, markings or other similar devices." N.J.S.A. 59:4-5.
"[T]he determination as to the advisability or necessity of a particular sign
or warning device at any particular place requires the exercise of discretion."
Patrick by Lint, 449 N.J. Super. at 575. A "discretionary act . . . calls for the
exercise of personal deliberations and judgment, which in turn entails examining
the facts, reaching reasoned conclusions, and acting on them in a way not
specifically directed." Kolitch, 100 N.J. at 495 (quoting Miree v. United States,
490 F. Supp. 768, 774 (N.D. Ga. 1980)).
Here, as the motion judge found, defendant's decision to install one type
of traffic control sign over another was immune from plaintiff's claim because
"the posting of [or failure to post] a sign is merely one form of acting on the
decision to set a certain limit, a decision that is discretionary in nature and
therefore entitled to immunity." Kolitch, 100 N.J. at 496. "A public entity is
not liable for an injury resulting from the exercise of judgment or discretion
vested in the entity." Patrick by Lint, 449 N.J. Super. at 574 n.4 (quoting
N.J.S.A. 59:2-3(a)).
Moreover, as the motion judge also correctly determined, where a public
entity has set a speed limit, "it cannot be a tort to communicate accurately a
A-5185-18T3 13 properly established speed limit" and that "the setting of the speed limit in the
first instance is a discretionary function." Kolitch, 100 N.J. at 494. The "'lawful'
limits of speed are simply those that are posted, namely, those limits above
which a motorist using our roadways will be held to be in violation of the traffic
regulations." Id. at 495. A public entity "cannot be subjected to liability for the
posting of a sign so long as the sign itself does not misinform the public with
regard to the actual, lawful limit" of speed. Ibid.
Nonetheless, under N.J.S.A. 59:4-4, a public entity may be liable for not
installing appropriate warnings where a dangerous condition requires them or,
if installed, they are not maintained. See Wymbs ex rel. Wymbs v. Twp. of
Wayne, 163 N.J. 523, 539 (2000) (holding immunity did not apply because
plaintiffs were not asserting the absence or inappropriateness of a sign as a basis
to impose liability, but were contending instead that the prior signs represent
admissions by the State that the curve is a dangerous condition); Civalier by
Civalier v. Est. of Trancucci, 138 N.J. 52, 64 (1994) (allowing recovery to
plaintiffs injured by a truck driver's reliance on there being no stop sign at an
intersection, where one had been previously installed). Once an entity
determines the need for a traffic control device or sign, it will be held liable for
A-5185-18T3 14 any dangerous condition created by its failure to maintain the device or sign.
Shuttleworth v. Conti Constr. Co., 193 N.J. Super. 469 (App. Div. 1984).
A curve in a road does not by its mere existence create a dangerous
condition. See N.J.S.A. 59:4-1(a) (defining 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."); Patrick by Lint, 449 N.J. Super. at 572 (finding that lack
of signage, without more, was insufficient to create a dangerous condition).
"The onus of reducing speed to some appropriate level when approaching a
curve . . . is on the driver." Kolitch, 100 N.J at 495. That "onus" is reinforced
by New Jersey's Motor Vehicle laws. N.J.S.A. 39:4-98 states, "[t]he driver of
every vehicle shall . . . drive at an appropriate reduced speed . . . when
approaching and going around a curve."
Here, there was no dispute that Bhatt never reduced his speed—and in fact
was speeding—when he entered Clinton Road's curve, about which there were
advanced warning signs in place. Significantly, Bhatt's excessive speed alone
was sufficient to bar application of N.J.S.A. 59:4-4 as argued by plaintiff
because liability under that statute is limited to those who are injured while
"exercising due care."
A-5185-18T3 15 We reject plaintiff's contention that the motion judge should have further
analyzed her claim that the failure to post advisory speed reduction signs created
a dangerous condition under N.J.S.A. 59:4-2, which defines when a public entity
can be liable for a dangerous condition on public property. In order to
circumvent immunity, N.J.S.A. 59:4-2 requires that a plaintiff demonstrate that
(1) a dangerous condition existed on the property at the time of the injury; (2)
the dangerous condition proximately caused the injury; (3) the dangerous
condition created a reasonably foreseeable risk of the kind of injury that
occurred; (4) the public entity had actual or constructive notice of the condition
in sufficient time prior to the injury to correct the dangerous condition; and (5)
the action or inaction taken by the public entity to protect against the dangerous
condition was palpably unreasonable. See N.J.S.A. 59:4-2; Polzo, 209 N.J. at
65–66 (first quoting N.J.S.A. 59:4-2; then citing Vincitore v. N.J. Sports &
Exposition Auth., 169 N.J. 119, 124–25 (2001)); Muhammad v. N.J. Transit,
176 N.J. 185, 194 (2003) (quoting N.J.S.A. 59:4-2).
Here, even if the township was not entitled to immunity under N.J.S.A.
59:4-5, plaintiff failed to submit evidence that defendant received complaints or
show a history of accidents at the site sufficient to place defendant on actual or
constructive notice of an issue, see N.J.S.A. 59:4-3(a) and (b), or any
A-5185-18T3 16 demonstration that the failure to install additional warnings was palpably
unreasonable. See Patrick by Lint, 449 N.J. Super. at 573–74.
We find no merit to plaintiff's argument that defendant had actual notice
of a dangerous condition—the lack of appropriate signage for the curve—simply
because a police crash report database referred to the Clinton Road curve as a
"bad curve." Plaintiff's reliance on that statement ignores its context. Other
than indicating that Clinton Road has several "bad curves," Officer Novakowski,
who also offered that description, testified that Bhatt's speed was a contributing
factor to his swerving off the side of the road. She also testified that "most"
accidents on Clinton Road are the result of the driver traveling at a speed greater
than thirty-five miles per hour.
The officer's statement and the accident database characterization at most
established that prior accidents occurred because drivers did not drive at or less
than the speed limit—not that the curve or lack of signage was dangerous even
when drivers exercised due care. Moreover, given the infrequent crash history
at the particular location, with only four collisions since 2004, defendant could
not have had actual knowledge of the danger that inappropriate signage might
have caused. See N.J.S.A. 59:4-3(a).
A-5185-18T3 17 Plaintiff's expert never cited to any specific information that established
the contributing causes for these crashes and simply concluded that the
collisions were the result of defendant's failure to place appropriate signage
before the curve. Defendant's expert, who reviewed collision reports provided
by defendant's police department, stated that of the four collisions that occurred
between 2004 and 2017 at the same location, two of the four were related to the
vehicle's speed at the time of the accident, one was caused by driver inattention,
and the last was caused by debris on the roadway. Given the crash history at the
approximate site, and the unrefuted reasons for those crashes indicating they
were largely the result of lack of due care, there was no factual dispute about
whether defendant had constructive notice that a failure to place advisory speed
reduction signs, in addition to the already present chevrons, created a dangerous
condition.
There was similarly no evidence that defendant's installation of one type of
sign over another was palpably unreasonable. "[P]alpably unreasonable implies
behavior that is patently unacceptable under any circumstance and that . . . must
be manifest and obvious that no prudent person would approve of its course of
action or inaction." Patrick by Lint, 449 N.J. Super. at 573 (alteration and
A-5185-18T3 18 omission in original) (quoting Holloway v. State, 125 N.J. 386, 403–04 (1991)).
See also Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459 (2009).
Here, defendant's installation of warning chevrons about the curve and its
failure to install the allegedly required speed reduction signage was not palpably
unreasonable, and its decision was supported by the limited accident history of
the site. The evidence simply did not support a finding that it was "obvious that
no prudent person would approve of [defendant's] course of action or inaction."
Ogborne, 197 N.J. at 459.
Under these circumstances, we have no cause to disturb the outcome of
defendant's summary judgment motion.
Affirmed.
A-5185-18T3 19