Civalier by Civalier v. Estate of Trancucci

• Decision Date: 20 October 1994
• Citation: 138 N.J. 52,648 A.2d 705
• Court: New Jersey Supreme Court
• Parties: Steven CIVALIER, a minor by his guardian ad litem, John R. CIVALIER, John R. Civalier, Individually and Mario Dianora, Executor of the Estate of Genevieve Dianora and/or Mario Dianora, Administrator ad prosequendum and General Administrator of the Estate of Barbara Civalier, Plaintiffs-Appellants, v. The ESTATE OF Margaret J. TRANCUCCI, Dominick R. Trancucci, Wawa, Inc., and J. Hewitt & Sons, Defendants-Appellants, and Township of Washington, Washington Township Police Department, County of Gloucester, Defendants-Respondents. Anthony F. Previte, Gloucester County Highway Department, and/or the State of New Jersey jointly, severally, and/or in the alternative, Defendants. Carlo P. TRANCUCCI, as General Administrator and Administrator Ad Prosequendum of the Estate of Margaret J. Trancucci; and Carlo P. Trancucci, Individually, Plaintiffs-Appellants, v. WASHINGTON TOWNSHIP, N.J.; Washington Township Police Department; Gloucester County, N.J., Defendants-Respondents, and Wawa, Inc., and J. Hewitt & Sons, Defendants-Appellants, and Anthony F. Previte; Jesse Hewitt, ABC Company, a fictitious business entity whose identity is currently unknown; XYZ Company, a fictitious business entity whose identity is currently unknown; and John Doe 1 through 10, fictitious persons whose identities are currently unknown, Defendants. Anthony F. PREVITE and Florence A. Previte, husband and wife, Plaintiffs-Appellants, v. The ESTATE OF Margaret J. TRANCUCCI, Dominick R. Trancucci, Wawa, Inc., J. Hewitt & Sons, Washington Township Police Department, Defendants-Appellants, and County of Gloucester and Township of Washington, Defendants-Respondents, and State of New Jersey, Defendant. INTERESTED UNDERWRITERS AT LLOYDS AS ASSIGNEES OF Anthony F. PREVITE, Plaintiff, v. Dominick TRANCUCCI and Dominick Trancucci, as Administrator of the Estate of Margaret Trancucci, Defendants and Third-Party Plaintiffs-Appellants, v. WAWA, INC., Millville Manufacturing Co., t/a Wawa, J. Hewitt & Sons, Third-Party

Page 52

138 N.J. 52

648 A.2d 705

Steven CIVALIER, a minor by his guardian ad litem, John R.

CIVALIER, John R. Civalier, Individually and Mario Dianora,

Executor of the Estate of Genevieve Dianora and/or Mario

Dianora, Administrator ad prosequendum and General Administrator of the Estate of Barbara Civalier, Plaintiffs-Appellants, v. The ESTATE OF Margaret J. TRANCUCCI, Dominick R. Trancucci, Wawa, Inc., and J. Hewitt & Sons, Defendants-Appellants, and Township of Washington, Washington Township Police

Department, County of Gloucester, Defendants-Respondents.

Anthony F. Previte, Gloucester County Highway Department,

and/or the State of New Jersey jointly, severally,

and/or in the alternative, Defendants.

Carlo P. TRANCUCCI, as General Administrator and

Administrator Ad Prosequendum of the Estate of

Margaret J. Trancucci; and Carlo P.

Trancucci, Individually, Plaintiffs-Appellants, v. WASHINGTON TOWNSHIP, N.J.; Washington Township Police

Department; Gloucester County, N.J., Defendants-Respondents,

and

Wawa, Inc., and J. Hewitt & Sons, Defendants-Appellants,

and

Anthony F. Previte; Jesse Hewitt, ABC Company, a fictitious

business entity whose identity is currently unknown; XYZ

Company, a fictitious business entity whose identity is

currently unknown; and John Doe 1 through 10, fictitious

persons whose identities are currently unknown, Defendants.

Anthony F. PREVITE and Florence A. Previte, husband and wife, Plaintiffs-Appellants, v. The ESTATE OF Margaret J. TRANCUCCI, Dominick R. Trancucci,

Wawa, Inc., J. Hewitt & Sons, Washington Township

Police Department, Defendants-Appellants,

and

County of Gloucester and Township of Washington,

Defendants-Respondents,

and

State of New Jersey, Defendant.

INTERESTED UNDERWRITERS AT LLOYDS AS ASSIGNEES OF Anthony F.

PREVITE, Plaintiff, v. Dominick TRANCUCCI and Dominick Trancucci, as Administrator of the Estate of Margaret Trancucci, Defendants and Third-Party Plaintiffs-Appellants, v. WAWA, INC., Millville Manufacturing Co., t/a Wawa, J. Hewitt

& Sons, Third-Party Defendants-Appellants,

and

County of Gloucester, Washington Township, Washington

Township Police Department, Third-Party

Defendants-Respondents,

and

John Does (1-100), fictitious names, Third-Party Defendants.

Supreme Court of New Jersey.

Argued May 2, 1994.

Decided Oct. 20, 1994.

Richard S. Ranieri, Philadelphia, PA, for appellant Wawa, Inc. (Callahan, Delany & O'Brien, attorneys; Glenn P. Callahan, of counsel).

John L. Slimm, Westmont, for respondent Washington Tp. Police Dept. (Slimm & Goldberg, attorneys; Peter S. Cuddihy, on the brief).

Talbot B. Kramer, Trenton, for respondent Tp. of Washington (Bernadette A. Duncan, Cherry Hill, attorney).

Lawrence Berg, Marlton, for respondent County of Gloucester (Marshall, Dennehey, Warner, Coleman and Goggin, attorneys).

Bertram P. Goltz, Jr., Deputy Atty. Gen., for amicus curiae Atty. Gen. (Deborah T. Poritz, Atty. Gen., attorney; Joseph L. Yannotti, Jr., Asst. Atty. Gen., of counsel).

Barry J. Hockfield, Cherry Hill, for appellants Steven Civalier, a minor by his guardian ad litem, John R. Civalier; John R. Civalier, Individually; and Mario Dianora, Executor of the Estate of Genevieve Dianora and/or Mario Dianora, Adm'r ad prosequendum and General Adm'r of the Estate of Barbara Civalier, was granted leave to rely on the briefs and argument on behalf of appellant Wawa, Inc. (Hockfield, Hasner, Weiss & Rosenberg, attorneys).

Vincent P. Sarubbi, Audubon, for appellants Anthony F. Previte and Florence A. Previte, husband and wife, was granted leave to rely on the briefs and argument on behalf of appellant Wawa, Inc. (Sarubbi & Sarubbi, attorneys).

Charles R. Cohen, West Caldwell, for appellant Carlo P. Trancucci, as Gen. Adm'r and Adm'r Ad Prosequendum of the Estate of Margaret J. Trancucci; and Carlo P. Trancucci, Individually, was granted leave to rely on the briefs and argument on behalf of appellant Wawa, Inc. (Pearl, Levy & Cohen, attorneys).

Burchard S. Martin, Westmont, for appellant Estate of Margaret Trancucci, was granted leave to rely on the briefs and argument on behalf of appellant Wawa, Inc. (Martin, Gunn & Martin, attorneys).

Michael K. Tuzzio, Edison, for appellant J. Hewitt & Sons, was granted leave to rely on the briefs and argument on behalf of appellant Wawa, Inc. (Donington, Karcher, Salmond, Ronan & Rainone, attorneys).

The opinion of the Court was delivered by

O'HERN, J.

At issue in this case is the liability of public-entity defendants, Gloucester County, Washington Township, and the Washington Township Police Department, for an automobile accident allegedly caused by a missing traffic sign. Three people lost their lives in the accident.

I

Because the case arises on summary judgment, all inferences of fact must be drawn in favor of those parties opposing the motion. Pretrial discovery discloses the following. Margaret Trancucci was driving an automobile west on Mariner Drive, a municipal road in Washington Township, New Jersey, in the early evening of November 30, 1989. Anthony Previte was driving a panel truck south on Pitman-Downer Road, a county road. A stop sign was ordinarily posted at the northeast corner of the intersection of the two roads, facing east on Mariner Drive. Previte knew that a sign regulated the intersection and he assumed that he had the right of way. However, at the time of the accident, the sign was missing, leaving only a bare pole. The sign had been reported missing earlier in November and Washington Township had replaced it. Between the time of that replacement and the accident, the sign had been removed again. The Chief of the Washington Township Police Department acknowledged that vandalism of stop signs is a recurring problem for the community.

A Wawa convenience store is located on the same northeast corner of the intersection. Overgrown shrubbery on that corner obscured visibility of southbound traffic on Pitman-Downer Road. An eyewitness estimated the speed of Previte's truck to be forty-five miles per hour and the speed of Trancucci's car to be five miles per hour as she entered the intersection. When Trancucci reached the center of the intersection, she apparently noticed Previte's oncoming truck and accelerated in an unsuccessful effort to avoid being hit by the truck.

As a result of the accident, Trancucci and her two adult passengers, Genevieve Dianora and Barbara Civalier, died. Ten-year-old Steven Civalier, another passenger in Trancucci's car, and Anthony Previte were injured. These suits variously charge the drivers, the convenience store, the store's landscape contractors, and the public entities with causing the accident. The three public entities filed motions for summary judgment on the basis that N.J.S.A. 59:4-5 grants them immunity from liability for "failure to provide ordinary traffic signals, signs, markings or other similar devices."

The trial court granted those motions, holding that the asserted dangerous condition of property arose from the absence of an ordinary traffic signal, a condition for which N.J.S.A. 59:4-5 specifically grants public entities immunity. The court concluded that the intersection did not constitute a "dangerous condition" of public property for purposes of liability under either N.J.S.A. 59:4-2 or N.J.S.A. 59:4-4 (requiring emergency warning of dangerous conditions that are not apparent) because, when the sign was removed, the intersection became an ordinary "uncontrolled intersection" under N.J.S.A. 39:4-90, and the regulations promulgated under that statute dictated the appropriate conduct of drivers approaching the intersection. The court thus reasoned that an uncontrolled intersection is not an unusual, extraordinary, or unexpected occurrence or condition calling for immediate action under N.J.S.A. 59:4-5. The Appellate Division denied leave to appeal that ruling. We granted leave to appeal, 134 N.J. 556, 557, 636 A.2d 516 (1993).

II

In a recent series of cases, we have considered the proper relationship between the liability and immunity provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3 (the Act). For example, in Weiss v. New Jersey Transit, 128 N.J. 376, 608 A.2d 254 (1992), we faced an issue similar to that currently before us. In that case, a driver's car was struck by a train at an uncontrolled railroad grade crossing. A traffic signal had long been planned for the grade crossing, but a "tortuous history of bureaucratic red-tape," 245 N.J.Super. 265, 270, 584 A.2d 1359 (App.Div.1991), delayed its operation. Plaintiffs in Weiss claimed that the legislative grant of immunity for failure to place a traffic signal under N.J.S.A. 59:4-5 did not apply because the true cause of the dangerous condition was not the absence of the traffic signal but rather the independent negligence of the public bodies in delaying the installation of the traffic signal.

We did not agree. We believed that the denial of immunity to a public entity on the basis of administrative negligence in implementing a plan to post a traffic signal would result in there being "little left to the immunities granted by the Act." 128 N.J. at 380. We recognized the closeness of the call, but we believed that the liability provisions of the Act could not take precedence over specifically-granted immunities. Our precedent supported that conclusion. In Bombace v. City of Newark, 125 N.J. 361, 593 A.2d 335 (1991), we had held that the ordinary negligence of a municipal official in terminating a legal proceeding to prosecute housing violations did not diminish the explicit grant of immunity contained in the Act for failure to enforce the law. In Pico v. State, 116 N.J. 55, 560 A.2d 1193 (1989), we had held that the express immunity for weather conditions under N.J.S.A. 59:4-7 barred suit against the State for any negligent delay in dispatching the road sanders to clear up icy roads. In short, we recognize that "[w]e have been adjured by the framers of the Tort...