Weiss v. New Jersey Transit
| Decision Date | 15 January 1991 |
| Citation | 245 N.J.Super. 265,584 A.2d 1359 |
| Parties | Robert G. WEISS, Administrator Ad Prosequendum of the Estate of Elizabeth Ann Weiss, and Guardian of the Infant, Heather Weiss, Plaintiff-Appellant, v. NEW JERSEY TRANSIT, New Jersey Rail Operations, Inc. and New Jersey Department of Transportation, The Borough of New Providence, The County of Union, A.C. Brander, Inc., Conrail, Inc. and John Doe 1-25 Fictitious Corporate, Governmental and Other Entities, Defendants-Respondents. BOROUGH OF NEW PROVIDENCE, Defendant-Third Party Plaintiff, v. JERSEY CENTRAL POWER & LIGHT COMPANY, Third Party Defendant. |
| Court | New Jersey Superior Court — Appellate Division |
Henry R. Simon, for plaintiff-appellant (Meryl Shapiro, Newark, of counsel and on the brief and reply brief).
Thomas J. Kelly, Jr., for defendant-respondent Borough of New Providence (Hurley & Vasios, attorneys; Thomas J. Kelly, Jr., Short Hills, on the brief).
John M. Armstrong, Deputy Atty. Gen., for defendants-respondents State of N.J., Dept. of Transp. and Conrail (Robert J. Del Tufo, Atty. Gen., attorney, Michael R. Clancy, Asst. Atty. Gen., of counsel; John M. Armstrong, on the brief).
Edward J. Seaver, for defendant-respondent New Jersey Transit Rail Operations (Podvey, Sachs, Meanor & Catenacci, attorneys, Edward J. Seaver, Newark, on the brief).
John G. Butler, for defendants-respondents A.C. Brandner, Inc., New Jersey Dept. of Transp. and Borough of New Providence (Leonard and Butler, attorneys; John Butler, Parsippany, on the brief).
Before Judges PRESSLER, DEIGHAN and BAIME.
The opinion of the court was delivered by
PRESSLER, P.J.A.D.
Elizabeth Ann Weiss was killed when the automobile she was driving was struck by a New Jersey Transit train at a grade level crossing in the Borough of New Providence. Her father, plaintiff Robert G. Weiss, brought this wrongful death action, as administrator ad prosequendum of his daughter's estate and as guardian of her surviving child, against New Jersey Transit Corporation, New Jersey Rail Operations, Inc., New Jersey Department of Transportation (DOT), New Providence Borough and Union County. 1 He appeals from the grant of summary judgment dismissing his complaint against all public-entity defendants. The court's action was based on its conclusion that beyond any genuine dispute of material fact these defendants were entitled to the design immunity afforded by N.J.S.A. 59:4-6 and the immunity afforded by N.J.S.A. 59:4-5 for failure to provide ordinary traffic signals. We disagree and reverse.
The fatal accident occurred on the morning of December 29, 1986. Decedent, the sole occupant of her car but for a German Shepherd dog which survived the crash, was driving westbound on Central Avenue in New Providence towards its intersection with Livingston Avenue, both municipal streets. A single railroad track under the jurisdiction of New Jersey Transit runs diagonally through the intersection. Decedent's car was struck by a northbound New Jersey Transit train as it was making a right turn onto Livingston Avenue. At the time of the accident, the crossing was not guarded by gates. Nor were there pavement markings giving advance warning of the crossing approach. The warning system then in place included mounted crossbucks as well as flashing lights and bells activated by the oncoming train.
In April 1978, after two car-train accidents had already occurred at the Central Avenue crossing, defendant New Providence passed a resolution petitioning DOT to provide for the installation of "appropriate safety devices" at that location. The resolution noted "increased traffic, nearness to public schools and the general nature of the railroad crossing." A public hearing was conducted before a hearing examiner later that month at which both the borough and Consolidated Rail Corporation (Conrail), the predecessor of New Jersey Transit, were represented. The hearing examiner's report and recommendation, issued in October 1978, found that at the crossing "car to train sight distances are generally poor on all approaches because of trees, utility poles, shrubbery and residential buildings." It also found with respect to the warning system in place that there was "partial restriction to visibility of the flashing signal assemblies because of trees, utility poles and 'Stop' signs." Because of the relatively high volume of traffic at the intersection, consisting of some 4500 vehicles and 30 trains daily, the hearing examiner recommended substantial upgrading of the warning systems. It was his conclusion that:
In view of the recent accident history and the accident potential generated by the poor sight distances, high number of passenger trains, high speed of trains, presence of school children as pedestrians, flammable cargo carriers, relatively high traffic volumes at the intersection, school buses, motorists' disregard for the flashing signals, the partial visibility restrictions of the flashing light assembly and the diagonal approach of trains, the Examiner is of the opinion that the level of protection should be increased.
Further concluding that compliance with federal mandate for a crossing gate was "impractical," 2 the solution recommended by the examiner was the installation of clearly visible traffic signals at the intersection, connected to railroad circuitry so that all lanes of traffic would have a red signal as a train approached. The examiner further recommended pedestrian "blank-out" signs, "no turn on red" signs, installation of approach pavement markings, and installation of modern reflectorized back-to-back crossbucks. Finally, he recommended that all costs "associated with this project will be paid under the appropriate Federal Aid Program."
Five months later, in March 1979, the DOT Commissioner issued a decision and order adopting the examiner's report and recommendation and directing both the borough and Conrail to take particularly described actions to effect the new signalization plan according to a specifically mandated and expeditious timetable. The Commissioner also directed payment for the project with allocated federal funds made available under the Federal Aid Rail-Highway Safety Program.
Despite the timetable contained in the Commissioner's order, the project was not completed and functional until January 8, 1987, a week after the accident and almost eight years after entry of the Commissioner's order mandating the improvement. In explaining this inordinate, extraordinary delay in completing a funded safety project taking only six weeks of actual construction time, the record demonstrates a tortuous history of bureaucratic red-tape, desultory foot dragging, and lack of intensity which is truly breathtaking. This was after all only a traffic signal, not the Hoover Dam or the Golden Gate Bridge.
The project began apace. In June 1979 and in accordance with the Commissioner's ordered timetable, the borough submitted to DOT preliminary plans for the traffic light installation under cover of letter asking for its review and comments and reiterating its understanding that DOT would arrange for coordination with Conrail for its part of the work. In December 1979 the borough sent additional plans to DOT. In April 1980 the borough passed and transmitted to DOT a resolution acknowledging that it had been ordered by DOT to install the signal, acknowledging its eligibility for federal funding, and undertaking to make the installation and to maintain it. The following month DOT wrote to the borough asking for additional specifications. Fourteen months passed. On July 20, 1981, DOT sent a rather cryptic letter to the borough advising that "a cursory check has found that the plans submitted with your memorandum [of July 7, 1981] are the same as prepared by Department [DOT] forces."
In the meantime the borough and Conrail were in communication in the spring of 1981. In March of that year the borough asked Conrail to respond to the plans it had sent it the previous November. On two occasions in April 1981 the borough sent Conrail additional plans and specifications. In June 1981 the borough was favored with a reply from Conrail advising it that it had no objections to the borough's plans, that its, Conrail's, signal estimate submitted to DOT a year earlier was still valid and that it was "still awaiting their [DOT] authority to proceed with alterations to the traffic control devices." In June 1981 the borough sent DOT Conrail's "approval" together with a few more sets of plans and specifications and requested DOT's advice on what "remaining steps must be taken to institute construction of the signal."
Insofar as the record shows, 1982 was a quiet year. In March, some nine months after its last letter to DOT, the borough again wrote to ask it what pre-construction steps remained to be completed. In June the borough sent DOT more sets of plans and specifications, copies of cost estimates and copies of the borough's maintenance agreement. The year 1983, however, saw a bit more progress. In March, the borough sent DOT more plans. In June New Jersey Transit, which by then had succeeded to Conrail's interest, entered into an agreement with DOT which, in effect, added this project to those funded under the federal Highway Safety Act and included DOT's authorization to New Jersey Transit to proceed with the work as ordered by the Commissioner more than four years earlier. In October, the borough again asked DOT what remained to be done. That letter evoked a DOT response on October 19 advising the borough that its plans and specifications had been reviewed and approved, that New Jersey Transit had been noticed to proceed with construction, that it, DOT, would schedule a pre-construction meeting with all interested parties, and that "the starting date for this project should be this fall or early spring." No such start occurred.
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