McGowan v. Borough of Eatontown

• Decision Date: 13 July 1977
• Citation: 376 A.2d 1327,151 N.J.Super. 440
• Parties: William McGOWAN, Plaintiff-Appellant, v. BOROUGH OF EATONTOWN, State of New Jersey, Mother Hubbard Restaurant and NewJersey Highway Authority, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 440

151 N.J.Super. 440

376 A.2d 1327

William McGOWAN, Plaintiff-Appellant, v. BOROUGH OF EATONTOWN, State of New Jersey, Mother Hubbard Restaurant and NewJersey Highway Authority Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued April 25, 1977.

Decided July 13, 1977.

Philip G. Auerbach, Red Bank, for plaintiff-appellant (Auerbach, Rudnick & Waldman, Red Bank, attorneys).

Richard A. Amdur, Oakhurst, for respondent, Borough of Eatontown.

Stephen Skillman, Asst. Atty. Gen., for respondent State of N. J. (William F. Hyland, Atty. Gen., attorney, Steven A. Tasher, Deputy Atty. Gen., on the brief).

Before Judges BISCHOFF, MORGAN and KING.

KING, J. S. C., Temporarily Assigned.

Plaintiff appeals from a grant of summary judgment below in favor of defendants Borough of Eatontown and State of New Jersey. This personal injury claim was brought by the driver of a motor vehicle involved in a one-car accident occurring on State Highway 35 on February 4, 1973, in the vicinity of the driveway of defendant Mother Hubbard Restaurant in Monmouth County. Defendants State and borough prevailed below by summary judgment on an assertion of statutory immunity under our Tort Claims Act, N.J.S.A. 59:1-1 et seq. The sole question on this appeal is the propriety of the trial judge's ruling on the immunity issue.

The complaint alleged negligent construction of a driveway on the roadside property of the Mother Hubbard Restaurant causing a runoff of large quantities of water onto the adjoining state highway. Plaintiff alleged that the water accumulated on the highway because of improper drainage and formed into ice, causing him to lose control of his vehicle and crash, resulting in his personal injuries. He charged the State with negligently maintaining the highway and improperly granting approval for the construction of the restaurant driveway. The borough was charged with negligently permitting the restaurant to construct the driveway with improper drainage facilities. Defendant Mother Hubbard Restaurant impleded several contractors who built the driveway, and the architect who designed the site. Contributions by defendant Mother Hubbard Restaurant and these third-party defendants who participated in the design and construction of the driveway generated a package of $10,000, which plaintiff accepted in settlement and discharge of these parties' liability. Only the State and the borough remain in the litigation and the validity of their assertion of immunity in this factual situation is the problem posed on this appeal.

Plaintiff was driving south on State Highway 35 at about 7 a. m. on Sunday, February 4, 1973. He has no personal recollection of the accident. According to the statement of a witness given to the investigating police officer, plaintiff's vehicle "hit a slick spot and went sideways." The police investigation indicated that plaintiff's car flipped over several times. Investigating officer Pierce was thoroughly deposed and his testimony is in effect the record below. Pierce described an isolated ice patch covering the right-hand, south-bound lane of the four-lane highway about 200 feet from the driveway and entrance to the Mother Hubbard Restaurant. The totality of the investigation was capable of the fair inference that plaintiff lost control of his car when negotiating this ice patch. Pierce had noticed a similar icy condition on other days before the accident. The "area of the driveway of the Mother Hubbard" was the source of the water in the officer's opinion. The borough police had alerted the State to the problem when icy accumulations had formed on other dates before this accident. Officer Pierce stated:

On various occasions this particular area was considered hazardous by us and we would call the State and request immediate sanding and/or salting of the area, and requests had been made by my part variably (sic ) and I don't know as far as whether it was a written request, but I know telephonically there had been some communication as far as doing something about eliminating this problem because it was recurrent.

At other points in his testimony Pierce stated he saw the ice "quite a few times" and on "numerous occasions." Pierce indicated: "My superiors were aware of the icing problem and had also at various time brought this to the state's attention." He further stated his superiors "are doing everything they could and they were trying to get somebody to do something about it through the State." The patch of ice could form "any time you have wet conditions." Pierce described the source of the condition in detail as follows:

The water drained from the area of Mother Hubbard's driveway would proceed along the curb for a number of feet, along the curb and then it would come out into the road and eddy, like an eddy. I'm trying to explain it would kind of bubble out in the roadway and for a ways and then go back to the curb. Now, if the conditions were cold enough, this particular area out of the road would then go into a freezing type of condition. Otherwise it would be a wet condition.

Pierce had passed this accident location while on patrol during the night shift hours before the accident. He could not recall the time when he had last passed the area that night. He could not remember whether he noticed the condition within the hours just before the accident and whether he called the condition in to his dispatcher, because "it got to be a routine type of situation, especially during the winter months, and I cannot say I definitely didn't see it or I definitely did." From a "layman's point of view" the area where the water accumulated and the ice formed on the roadway "appeared to be a slight depression." No construction expert's testimony or reports relevant to the construction of the highway were considered on the summary judgment application.

This case involves the interplay of several sections of the Tort Claims Act and raises a novel question concerning its construction and application to particular fact situations. We conclude the matter is not appropriate for summary judgment on the present record. The language of the Supreme Court in Beadling v. Sirotta, 39 N.J. 34, 186 A.2d 680 (1962) is appropriate:

The legal issues which the parties seek to present carry important implications and they should not be determined in a vacuum or in academic fashion; the preferable procedure is to permit the matter to be tried and determined in regular course (at 35, 186 A.2d at 680).

See also, Jackson v. Muhlenberg Hospital, 53 N.J. 138, 249 A.2d 65 (1969).

We do not mean to suggest that a plenary trial will result in a jury question or factual issue for the trier of fact on any or all of the points discussed herein. We only indicate the necessity in this case of a judge making the legal determinations on which the parties' rights hinge on a full and complete record. If, on a plenary hearing, the judge finds no factual issue present or finds a moving party is entitled to judgment as a matter of law, then judgment should be entered accordingly.

According to N.J.S.A. 59:1-2 and N.J.S.A. 59:2-1 public entities are only liable for negligence within the limitations of the statute; there is no liability except as provided by the act. See Burg v. State, 147 N.J.Super 316, 371 A.2d 308 (App.Div.1977); English v. Newark Housing Auth., 138 N.J.Super. 425, 428, 351 A.2d 368 (App.Div.1976). Plaintiff's claim against the State involves liability relating to conditions of public property, the category of claims covered by N.J.S.A. 59:4-1 to N.J.S.A. 59:4-9. The state does not dispute on this appeal the applicability of the act to a public roadway. "Public property" means real or personal property owned or controlled by the public entity. N.J.S.A. 59:4-1(c). For a more complete discussion see Whaley v. Hudson Cty., 146 N.J.Super. 76, 368 A.2d 980 (Law Div.1976).

Initially we point out that plaintiff does not claim negligent plan or design of the section of the highway where the accident occurred either by way of original construction or improvements. Specific immunity as conferred by the statute would defeat such a claim. N.J.S.A. 59:4-6; Rodgers v. Passaic Housing Auth., 139 N.J.Super. 569, 354 A.2d 681 (App.Div.1976). Nor does plaintiff claim responsibility for failure to provide ordinary traffic signals, signs, markings or other similar devices. Again, such a claim would be defeated by a specific section of the act. N.J.S.A. 59:4-5; Aebi v. Monmouth Cty. Highway Dept., 148 N.J.Super. 430, 372 A.2d 1130 (App.Div.1977). The public entities here have also raised the specific immunity conferred by N.J.S.A. 59:4-7, operative "for an injury caused solely by the effect on the use of streets and highways of weather conditions." Plaintiff here contends that the icy condition of the road was not the sole cause but only a factor or contributing cause existing in combination with other causes which resulted in the accident. If the weather combined with another cause or other causes actionable under the Tort Claims Act, under the principles to be discussed infra, then this specifically conferred climatological immunity would not operate as a bar because of the express statutory use of the word "solely."

We must then consider whether plaintiff comes within the ambit of the conditions for liability generally as described by N.J.S.A. 59:4-2 which states:

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...