Bergen v. Koppenal
| Decision Date | 07 October 1968 |
| Docket Number | No. A--11,A--11 |
| Citation | 52 N.J. 478,246 A.2d 442 |
| Parties | Mary BERGEN and John Bergen, Plaintiffs-Respondents, v. Virginia KOPPENAL, Defendant-Respondent, and Wall Township, a municipal corporation of the State of New Jersey, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Robert R. Witt, Asbury Park, for appellant (Stephen C. Carton, Asbury Park, of counsel, Carton, Nary, Witt & Arvanitis, Asbury Park, attorneys).
Leslie S. Kohn, Newark, for plaintiffs-respondents.
The opinion of the court was delivered
Plaintiffs sued Wall Township (Township) and Virginia Koppenal for injuries sustained in a collision between plaintiffs' car and the Koppenal car. At the close of plaintiffs' case the trial court granted the Township's motion to dismiss. The jury returned a verdict against Mrs. Koppenal. Upon plaintiffs' appeal, the Appellate Division reversed the judgment in favor of the Township and ordered a retrial as to it. Bergen v. Koppenal, 97 N.J.Super. 265, 235 A.2d 30 (App.Div.1967). We granted the Township's petition for certification. 51 N.J. 183, 238 A.2d 469 (1968).
The facts appear in the Appellate Division's opinion. Briefly, at 6:16 a.m. a township police officer noted that an overhead traffic light had broken loose and turned so that its signal was misdirected. The road was not the Township's although within its borders. It was a state highway, and the lighting system was installed and maintained by the State Highway Department. The police officer radioed his headquarters, which however could not reach the Highway Department until it opened at 8:00 a.m. At 8:45 a.m. Mrs. Koppenal proceeded from a stopped position when the errant light flashed green, although two other lights facing her continued to show red. She collided with plaintiffs' car which properly was moving on green. As we have said, the jury found Mrs. Koppenal was negligent.
The difficulty arises from the fact that neither the highway nor the lights belonged to the Township or were under its possessory control. Cf. Hoy v. Capelli, 48 N.J. 81, 85--86, 222 A.2d 649 (1966). The question is whether for tort purposes the Township was nonetheless under a duty to take over traffic control when its officer learned of the situation we have described. We have never held that every police failure to act may be translated into a dollar liability. Although we affirm the action of the Appellate Division, we should not be thought to embrace so large a proposition. Rather we think it fair to say that a duty may be found if a police officer learns of an emergent road condition which is likely not to be observed by a motorist and...
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