Daniel v. State, Dept. of Transp.

• Decision Date: 19 March 1990
• Docket Number: T-K
• Citation: Daniel v. State, Dept. of Transp., 571 A.2d 1329, 239 N.J.Super. 563 (N.J. Super. App. Div. 1990)
• Parties: Ann DANIEL, Executrix of the Estate of Barbara Rhem, deceased, James Rhem, Deborah Rhem, A. Renee Rhem, Individually, William Rhem and Anabel Rhem, Plaintiffs-Respondents, v. STATE of New Jersey, DEPARTMENT OF TRANSPORTATION, Defendant-Appellant, and George Jones, Jr., Defendant-Respondent, and 5700 Atlantic Avenue Corporation, t/a's Pub, George Jones, Sr., and John Doe, a fictitious name, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 563

239 N.J.Super. 563

571 A.2d 1329

Ann DANIEL, Executrix of the Estate of Barbara Rhemdeceased, James Rhem, Deborah Rhem, A. Renee RhemIndividually, William Rhem and Anabel Rhem, Plaintiffs-Respondents, v.STATE of New Jersey, DEPARTMENT OF TRANSPORTATION, Defendant-Appellant and George Jones, Jr., Defendant-Respondent and 5700 Atlantic Avenue Corporation, t/a T-K's Pub, George Jones, Sr., and John Doe, a fictitious name, Defendants.

Superior Court of New Jersey, Appellate Division.

Argued Feb. 7, 1990.

Decided March 19, 1990.

John M. Armstrong, Deputy Atty. Gen., for defendant-appellant(Robert J. Del Tufo, Atty. Gen., attorney; Mary C. Jacobson, Deputy Atty. Gen., of counsel; John M. Armstrong, on the brief).

Fred M. Klatsky, for plaintiffrespondentAnn Daniel, Ex'r of the Estate of Barbara Rhem, deceased, James Rhem, Deborah Rhem, and A. Renee Rhem, Individually(Klatsky & Klatsky, attorneys: Fred M. Klatsky, Red Bank, on the brief).

Kenneth Javerbaum, for plaintiffs-respondentsWilliam Rhem and Anabel Rhem(Javerbaum & Wurgaft, attorneys; Anthony P. Valenti, Springfield, on the brief).

The brief of defendant-respondentGeorge Jones, Jr., was suppressed.

Before Judges KING, SHEBELL and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

Defendant, the State of New Jersey(State) by the Department of Transportation(DOT), appeals from a judgment in favor of plaintiffAnn Daniel, the executrix of the estate of Barbara Rhem, awarding damages for the death of the decedent as the result of an automobile accident.The accident occurred in the early morning hours of July 5, 1982 when defendantGeorge Jones, Jr., while travelling west on Route 30, crossed the median and collided head-on with a vehicle driven in the opposite direction by William Rhem, the decedent's cousin.Jones' automobile then struck a second car driven by Albert Horner.In the collision, all parties sustained serious injuries and the decedent, a passenger in the Rhem automobile, died shortly thereafter.

On February 17, 1983, plaintiff instituted this action by filing a complaint in the Superior Court, Law Division, naming as defendants Jones, William Rhem, the State and 5700 Atlantic Avenue Corporation, the licensed owner of T-K's Pub.In her complaint, plaintiff alleged that both Jones and Rhem were negligent in the operation of their respective automobiles.She further contended that T-K's Pub was at fault in continuing to serve alcoholic beverages to Jones, who was allegedly visibly intoxicated.Rhem filed a cross-claim against Jones and the State.

In the action against the State, plaintiff and Rhem asserted that the accident was caused in part by the dangerous condition of the road.Specifically, they claimed that the highway was dangerous at the time of the accident as a result of road work performed by the DOT in 1970 and 1981, which had the effect of reducing the curb height of the median from its original eight inches to two inches.The reduction of the curb height in 1970 and the asphalt paving of the median in 1981 were said to have created a "ramp-like" effect, causing Jones' automobile to be catapulted into the lanes of on-coming traffic.

Following extensive discovery proceedings, the State moved for summary judgment, contending that the curb height had been purposely lowered in the 1970 project by a "super-elevation" or "banking" of the roadway on the curve where the accident occurred.The State argued that the work performed in 1970 constituted an "improvement" to Route 30 pursuant to a "plan" or "design" and it was thus immune from suit under the provisions of N.J.S.A. 59:4-6.In an oral opinion, the Law Division judge granted partial summary judgment, finding that the 1970"super-elevation" of the highway fell within the purview of the statutory immunity provided by N.J.S.A. 59:4-6, but that factual questions remained with respect to the asphalt paving of the median in 1981.The issues of liability and damages were bifurcated by order of June 1, 1984.

The trial on the question of liability commenced on October 21, 1985.Immediately prior to selection of the jury, the wrongful death and survivorship actions against William Rhem were settled.At the conclusion of plaintiff's case, the Law Division judge granted the State's motion for an involuntary dismissal on the basis that the "palpably unreasonable" conduct standard contained in N.J.S.A. 59:4-2 had not been proved.In making this determination, the judge erroneously held that plaintiff was required to prove the State received actual notice of the dangerous condition.Plaintiff's case against T-K's Pub was also dismissed for lack of evidence.An order was thereafter entered assessing 100% liability against Jones.

In an unreported opinion, we reversed both the partial summary judgment predicated on plan or design immunity and the later involuntary dismissal.We found that genuine issues of material fact existed with respect to (1) whether the 1970 project was an "improvement" or merely "maintenance,"(2) whether the plans were properly approved, (3) whether the reduction in curb height was a part of the plans and was actually considered by the DOT and (4) whether the employee who allegedly approved the plans possessed the requisite authority.We thus determined that the Law Division should not have granted the State's motion for summary judgment.We also found that the involuntary dismissal was improper because the Law Division had incorrectly interpreted N.J.S.A. 59:4-2 to require actual notice of the dangerous condition even if it was created by a public employee.We noted that N.J.S.A. 59:4-2 requires that the plaintiff prove either that the State created the dangerous condition or had notice of its existence.In the course of our opinion, we rejected plaintiff's argument that on the retrial, the State should not be permitted to present evidence relating to Jones' ingestion of alcoholic beverages.We observed that the State had presented sufficient evidence to allow the jury to decide whether alcohol played a role in causing the accident.In that respect, we explained that a cautionary instruction could be given to obviate any potential for undue prejudice that might otherwise arise by reason of the admission of the evidence.We observed that "the jury may consider whether the State's action denied other motorists of protection against drunk or errant drivers and whether such [conduct] was palpably unreasonable."

Following the Supreme Court's denial of the State's petition for certification, a retrial was commenced on May 2, 1988.Over the State's vigorous objections, questions pertaining to whether the roadway was in a dangerous condition and the accident caused in part by the DOT's palpably unreasonable conduct were submitted to the jury.In addition, the trial court denied the State's claim that, as a matter of law, it was immune from liability because the condition was created by reason of an "approved plan or design" or was the subject of a public official's exercise of discretion.Thus, questions relating to the State's claims of immunity were also presented to the jury.

The jury returned a verdict, finding that Jones was 40% and the State 60% at fault.With respect to the liability of the State, the jury determined that the DOT had created a dangerous condition, that it had acted in a palpably unreasonable fashion, that the defects in the median constituted a proximate cause of the accident and that none of the statutory immunities was applicable.The damage phase of the case was later settled as to all plaintiffs, the State agreeing to pay $650,000, with post judgment interest accruing from June 14, 1988.The State reserved the right to appeal with respect to the question of its liability.

The State now appeals, contending that (1)the trial court erroneously instructed the jury to consider whether the DOT's acts failed to protect plaintiffs from drunk and errant drivers, (2) the evidence failed to establish that the defects in the median constituted a proximate cause of the accident, (3)"plan or design immunity" and "discretionary conduct" immunity were proven as a matter of law and (4) cross-examination of the State's expert witness with respect to extrapolation evidence improperly prejudiced the DOT and deprived it of a fair trial.

We affirm.We are convinced that the evidence, viewed most favorably to plaintiff, was sufficient to present a jury question as to whether the cumulative effect of the 1970 and 1981 projects was such as to create a dangerous condition proximately causing the accident resulting in Barbara Rhem's death.We are also satisfied that a jury question was presented with respect to whether the DOT's action was palpably unreasonable under the circumstances.So too, we agree with the trial court's conclusion that reasonable minds could differ with respect to the applicability of the statutory immunities.We also find no error in the failure of the trial court to restrict plaintiff's cross-examination of the State's expert witness.We further conclude that the trial court's instructions pertaining to the definition of a dangerous condition did not constitute reversible error.Although we find errors in the court's charge, we are convinced that, within the context of the protracted trial, they were harmless and did not impair the State's substantial rights.

I.

A thorough recital of the facts is necessary for a full understanding of the issues presented.Although the facts regarding the occurrence of the accident are not in dispute, the actual cause of the incident is hotly contested.It is uncontroverted that Jones' automobile crossed over the median of Route 30 at mile marker 4.1 in Atlantic County and struck two vehicles travelling eastbound in the opposite lane.

According to William Rhem, at approximately 2:15 a.m. on July 5, 1982he and his cousin, Barbara, left Red Bank, intending to...