Pico v. State

• Decision Date: 10 March 1988
• Citation: 538 A.2d 1299,223 N.J.Super. 446
• Parties: Loretta A. PICO, Plaintiff-Appellant, v. STATE of New Jersey and Township of Wayne, Defendants-Respondents, and County of Passaic and Eric A. Waller, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 446

223 N.J.Super. 446

538 A.2d 1299

Loretta A. PICO, Plaintiff-Appellant, v. STATE of New Jersey and Township of Wayne, Defendants-Respondents and County of Passaic and Eric A. Waller, Defendants.

Superior Court of New Jersey Appellate Division.

Argued Feb. 3, 1988.

Decided March 10, 1988.

Michael S. Kopelman, Hackensack, for plaintiff-appellant.

Scott E. Rekant, Deputy Atty. Gen., for defendant-respondent State of N.J. (W. Cary Edwards, Atty. Gen., attorney; James J. Ciancia, Asst. Atty. Gen., Trenton, of counsel).

Michael L. Grabler, for defendant-respondent Wayne Tp. (Lee Graham Karosen, Roseland, attorney).

Before Judges FURMAN, LONG and SCALERA.

The opinion of the court was delivered by

FURMAN, P.J.A.D.

In granting summary judgment for defendants State of New Jersey and Township of Wayne, the trial court invoked the bar of weather immunity under the Tort Claims Act, N.J.S.A. 59:4-7:

Neither a public entity nor a public employee is liable for an injury caused solely by the effect on the use of streets and highways of weather conditions.

Plaintiff's claim against defendant Waller was settled. She is not pursuing an appeal from summary judgment for defendant County of Passaic, which was based upon no county jurisdiction over Route 23, a State highway. We reverse summary judgment for defendant State and otherwise affirm.

The factual support in the record for plaintiff's claim is summarized as follows. Plaintiff was injured while commuting to work on Route 23 in Wayne shortly before 8 A.M. on January 24, 1984. Route 23 was glazed with ice from a freezing rain. Plaintiff's car skidded although she was proceeding cautiously at a slow speed. She regained control and pulled to the side of the road. She left her car with the intention of walking back to make a telephone call. In her deposition she described the road conditions as "slippery, very." As she walked around the back of her car she was struck and injured by defendant Waller's car which skidded sideways out of control.

Earlier that morning, just after 5 A.M., a Wayne police officer on duty telephoned the State Department of Transportation (DOT) in Newark to report the hazardous icy road conditions. The DOT report of emergency call, which was before the trial court on the summary judgment motions, recites that "icy conditions" on Route 23 in all of Wayne were reported by the Wayne police officer and that the information was given to Patrick Avino, the DOT foreman of maintenance at the Totowa maintenance yard, nearby Wayne, with the notation "he will handle." Route 23 extends for approximately five miles in Wayne Township.

The icy road conditions precipitated the accident in which plaintiff suffered her injury. Concededly, there was no contributing cause of the accident in the roadway itself, such as a depression or declivity in which an icy patch formed ( cf. McGowan v. Borough of Eatontown, 151 N.J.Super. 440, 376 A.2d 1327 (App.Div.1977)), or within the State's abutting right-of-way, such as a blocked up ditch impeding drainage ( cf. Meta v. Township of Cherry Hill, 152 N.J.Super. 228, 377 A.2d 934 (App.Div.1977), certif. den. 75 N.J. 587, 384 A.2d 818 (1977)). Defendant State was exempt from liability for a dangerous condition of its property under N.J.S.A. 59:4-2 because of the weather immunity of N.J.S.A. 59:4-7.

The statutory scheme of the Tort Claims Act is that immunity is the rule unless liability is specified and that liability under the act in turn is subject to any specific immunity under the act. Malloy v. State, 76 N.J. 515, 519, 388 A.2d 622 (1978).

In this action, liability, if any, of the State would rest not upon N.J.S.A. 59:4-2 but upon N.J.S.A. 59:2-2(a):

A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.

Vicarious liability for ordinary negligence of a public employee is also set out in N.J.S.A. 59:2-3(d), the section of the act providing immunity for discretionary governmental decisions in the allocation of resources including equipment and personnel, in the face of competing demands. The final sentence of N.J.S.A. 59:2-3(d) clarifies that the immunity for discretionary decisions is inapplicable as a bar to a tort action against a public entity grounded in ordinary negligence under N.J.S.A. 59:2-2(a):

Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.

On the present record in the light most favorable to plaintiff, as it must be viewed on a motion for summary judgment, see Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-75, 110 A.2d 24 (1954), a decision was made to allocate sanding or salting equipment and personnel to the icy, hazardous five mile stretch of Route 23 in Wayne Township, but that decision was not implemented. At the best for plaintiff, Avino, the Totowa maintenance foreman, undertook a ministerial duty for the protection of drivers on Route 23, such as plaintiff, to "handle" the traffic safety peril on Route 23 in Wayne and failed for nearly three hours to carry it out. Plaintiff has a right of action against the State for negligence of its employee under N.J.S.A. 59:2-2(a) for her injuries suffered in the icy roadway accident.

As a parallel, we held in Rochinsky v. State Dept. of Transp., 214 N.J.Super. 525, 520 A.2d 766 (App.Div.1986), certif. granted 107 N.J. 124, 526 A.2d 191 (1987) and Paternoster v. N.J. Transp. Dept., 190 N.J.Super. 11, 461 A.2d 759 (App.Div.1983), certif. den. 96 N.J. 258, 475 A.2d 564 (1983), that, although snow removal need not be undertaken because of the weather immunity, if it is undertaken liability may attach for negligence in the performance of a ministerial duty. See also Bergen v. Koppenal, 52 N.J. 478, 246 A.2d 442 (1968), a decision preceding the Tort Claims Act, which recognized jury questions whether a municipality assumed a duty to make safe an intersection with a misdirected traffic signal and, if so, whether that duty was breached by the police in failing to respond to the emergent road condition for almost three hours after notice.

N.J.S.A. 59:4-2 limits governmental liability for dangerous conditions of public property to circumstances where the action taken or failure to protect against such conditions was palpably unreasonable. N.J.S.A. 59:2-3(d), in turn, exempts from immunity discretionary decisions in the allocation of resources which were palpably unreasonable. Both legally and factually, the standard of palpable unreasonableness is inapplicable to this litigation: because of the weather immunity...