Polyard v. Terry

• Decision Date: 27 June 1978
• Citation: 160 N.J.Super. 497,390 A.2d 653
• Parties: George POLYARD, as Administrator Ad Prosequendum for the heirs at law of Dorothy Ferreira, deceased, and General Administrator of the Estate of Dorothy Ferreira, deceased, and Herbert Ferreira, Plaintiffs-Respondents, v. David TERRY, Joyce Heil, Defendants, and State of New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 497

160 N.J.Super. 497

390 A.2d 653

George POLYARD, as Administrator Ad Prosequendum for the heirs at law of Dorothy Ferreira, deceased, and General Administrator of the Estate of Dorothy Ferreira, deceased, and Herbert Ferreira, Plaintiffs-Respondents, v. David TERRY, Joyce Heil, Defendants, and State of New Jersey, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued May 22, 1978.

Decided June 27, 1978.

Thomas F. Marshall, Deputy Atty. Gen., for defendant-appellant (John J. Degnan, Atty. Gen attorney; William F. Hyland, former Atty. Gen., Stephen Skillman, Asst. Atty. Gen., of counsel, George W. Fisher, Deputy Atty. Gen., and Thomas F. Marshall, Deputy Atty. Gen., on the brief).

Joseph L. Kramer, Teaneck, for plaintiffs-respondents (J. Howard Solomon, Teaneck, on the brief).

Before Judges ALLCORN, HORN and FURMAN.

The opinion of the court was delivered by

HORN, J. A. D.

This is another in the proliferating number of highway accident cases wherein the alleged negligence of the New Jersey Department of Transportation (State) alone or in conjunction with the alleged negligence of others is projected as a basis for recovery against the State.

In this case the accident occurred on August 25, 1974 on Route 4 in Hackensack, a short distance west of the Hackensack River Bridge, traversed by said highway. At the time of the accident Herbert Ferreira, his wife Dorothy and son Herbert, Jr. were traveling eastbound on Route 4 in the family car. Defendant David Terry drove his passenger vehicle across the Hackensack River Bridge, moving in the center lane of the three westbound lanes. About 300 feet beyond the bridge he swerved to the left, mounted the 19-inch-high concrete median barrier, proceeded into the eastbound side of the highway and crashed head-on into the Ferreira car. After the initial collision a van driven by defendant Joyce Heil collided with the rear of the Ferreira car. Mr. Ferreira was injured. Mrs. Ferreira died four hours later in Hackensack Hospital. The action was brought by Herbert Ferreira for his injuries, and by George Polyard as general administrator and administrator Ad prosequendum of the estate of Dorothy Ferreira against Terry, Heil and the State of New Jersey. Defendants respectively cross-claimed against each other.

Prior to the trial plaintiffs settled with Terry and stipulated to the dismissal of their action against him.

Thereafter Terry moved to dismiss the cross-claims of defendants Joyce Heil and the State. On July 9, 1976 the trial judge denied the motion to dismiss and decided that Terry would remain in the case, but would not be liable for any further financial contribution.

Trial before a jury began on November 22, 1976. Terry admitted negligence. On the third day of trial plaintiffs stipulated as to a dismissal of their claim against Heil as the result of a settlement. However, the issue of Heil's negligence was presented to the jury, which exonerated her. At the close of plaintiffs' case the State moved for dismissal, which was denied.

On November 30, 1976 the jury returned a verdict finding Terry 70% Negligent and the State 30% Negligent. The jury awarded $135,000 in the wrongful death action, $8,949 in the survival action and $15,000 for Herbert Ferreira's injuries. After argument on December 10, 1976 the judge molded the verdicts, crediting the State with amounts received in settlement by Polyard and Herbert Ferreira, and entered judgment against the State for $118,809.68 in the death action, $7,875.25 in the survival action and $4,364.07 for Herbert Ferreira's injuries: in sum, $131,049.

The State moved for judgment N. o. v. or a new trial. On January 28, 1977 the trial judge denied this motion in an oral opinion. Other relief sought by the State was denied for the reasons stated by the judge in his written opinion, Polyard v. Terry, 148 N.J.Super. 202, 372 A.2d 378 (Law Div.1977). The State filed a timely notice of appeal.

An aerial photograph depicts the scene. There are three lanes in the eastbound direction, in which the Ferreiras were riding, paved with macadam. There are also three lanes in the opposite or westerly direction, in which Terry was riding, paved with concrete, with some areas of exposed aggregate (stones). At the time of the accident the opposing lanes were separated by the concrete barrier. Before the trial the judge removed from the case, by entering a summary judgment, the issue of negligence as to the barrier, based on the statutory immunity of the State for negligent design or plan. N.J.S.A. 59:4-6. The basis of liability placed in issue at trial concerned the allegedly negligent condition of the roadway in the westbound lanes, where the surface of Route 4 meets the surface of the Hackensack River Bridge.

There was a Mobil gasoline service station adjacent to the scene of the accident, on the north side of the highway abutting the westbound lanes. The Hackensack River Bridge is 336 feet to the east of the accident scene.

At the time of the accident, Terry testified, he was traveling between 45 and 50 miles an hour within the speed limit. As he crossed the bridge his car hit a dip in the highway. He noticed a car exiting the Mobil station on his side of the highway. He stepped on his brakes and his car "just swung right over the divider" and into the Ferreira automobile. Everything happened in a split second and Terry did not know if he had turned the wheel.

The car which cut off Terry's car was never identified. An attendant at the gas station from which it pulled out testified that he had just serviced that car, and was standing next to the pumps, looking toward the roadway. He saw Terry's car coming from his left, proceeding straight in the middle lane. Terry was almost in front of him when the customer existing the station crossed the slow lane into the middle lane. He testified that "as the person from the gas station pulled out, he (Terry) veered toward the fast lane and very quickly." Terry's car went "directly over very quickly into the wall."

Herbert Ferreira said the only thing he could remember about the collision was "the front wheels coming up over that island and from that point on, I don't remember. I blacked out."

A Hackensack patrolman investigated the accident. He found no skid marks made by Terry's car.

Plaintiffs produced expert testimony concerning the condition of the road surface. This disclosed that the bridge surface was concrete. The roadway in the westerly direction was paved with blacktop, referred to as an easer, from the point where it met the bridge for a short distance westerly therefrom. Thereafter it was paved with concrete. The road surface was about 3/8 lower than the bridge surface where the two met. The difference in grade was referred to as a declivity. In October 1974, about six weeks after the accident, a "skin patch" of bituminous material approximately 3/8 in thickness was placed over the easer due to potholes in its surface.

A number of witnesses testified as to the effect of the declivity. A Teaneck patrolman who arrived at the scene shortly after the accident testified that the dip caused cars to bounce as they went over it. He described the rear wheels of a vehicle shown in a photograph proceeding westerly from the bridge as "being compressed into the shock absorbers" by the dip that the front of the vehicle had taken. Another Teaneck police officer, a lifelong friend of Herbert Ferreira, stated that he traveled this portion of Route 4 daily and that his car would "bottom" and scrape the road surface at 50 miles an hour, but he would have no problem at 40 miles an hour. A Hackensack patrolman characterized the declivity as being "slight, you feel a drop." The officer who investigated the accident also characterized the drop as being slight. The gas station attendant stated he never had any difficult with the easer and gave no thought to it. We will refer to such other portions of the evidence as may be necessary in connection with the issue of liability of the State.

Under its first point the State urges that the trial judge erred in failing to grant its motion for involuntary dismissal or judgment notwithstanding the verdict (judgment N. o. v.) because plaintiffs failed to produce evidence required to support liability under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 Et seq., particularly under N.J.S.A. 59:4-1 and 2. Because we agree that there was a failure to prove two of the required elements of N.J.S.A. 59:4-1 and 2, and such failure is dispositive of the entire case, we will discuss only these two. They are that plaintiffs failed to prove:

A. The area of the highway at which the accident occurred was in a dangerous condition within the meaning of N.J.S.A. 59:4-1.

B. The condition of the highway was the proximate cause of the collision.

Proof of these two elements and the others prescribed in N.J.S.A. 59:4-2 are essential before one may recover damages against a public entity. 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 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...