Opinion
DOCKET NO. A-6056-09T1
02-06-2012
ANTHONY SCHANZ, Plaintiff-Appellant, v. TOWNSHIP OF WINSLOW, Defendant-Respondent.
Richard C. Borton argued the cause for appellant (Randy P. Catalano, attorney; Mr. Catalano and Mr. Borton, on the brief). Francis X. Donnelly argued the cause for respondent (Mayfield, Turner, O'Mara, Donnelly & McBride, P.C., attorneys; Mr. Donnelly and Michael P. Lengel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Lihotz.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5901-08.
Richard C. Borton argued the cause for appellant (Randy P. Catalano, attorney; Mr. Catalano and Mr. Borton, on the brief).
Francis X. Donnelly argued the cause for respondent (Mayfield, Turner, O'Mara, Donnelly & McBride, P.C., attorneys; Mr. Donnelly and Michael P. Lengel, on the brief). PER CURIAM
Plaintiff Anthony Schanz, who sustained serious injuries as a result of a one-car accident at a Y-shaped intersection located in defendant Township of Winslow, appeals from orders of the Law Division granting summary judgment in favor of defendant and denying plaintiff's motion for reconsideration. In general, plaintiff contends the intersection was a trap for the unfamiliar or unwary driver, that it constituted a dangerous condition of public property under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and that it was palpably unreasonable for Winslow Township not to have posted additional warning signs, reduced the speed limit or installed rumble strips, as suggested by plaintiff's expert witness.
Defendant counters that there was no dangerous condition within the meaning of N.J.S.A. 59:4-2 and that in addition to the general rule of immunity under the Tort Claims Act, the specific immunity related to ordinary traffic signals applies. In fact, there is a large yellow sign with arrows at the intersection informing drivers of the need to turn left or right. Alternatively, defendant maintains that even if plaintiff could establish that a dangerous condition exists at the intersection, there was no basis for the court to conclude that defendant was palpably unreasonable in not taking one of the steps suggested by plaintiff's expert or some other step to further alert drivers of the Y-shaped intersection.
Based on our review of the record and the arguments asserted by the parties and the applicable law, we affirm the orders of the Law Division granting summary judgment in favor of defendant and denying plaintiff's motion for reconsideration.
On November 25, 2006, at approximately 3:00 a.m., plaintiff left a friend's house in Winslow Township in his 1992 Chevrolet Lumina after he had consumed five beers over the course of the evening. Plaintiff last remembers driving on Herbert Boulevard when he approached a Y-shaped intersection. Making a left turn at that juncture, places a driver on Johnson Road, while a right turn places a driver on Zoe Lane. Photographs of the intersection reveal there is a large yellow directional sign at the fork warning motorists that they must turn right or left. Although plaintiff does not specifically remember the collision, he failed to turn in either direction and his automobile continued straight through the intersection and crashed into a tree in the front yard of a residence on Johnson Road.
In his accident report, the responding police officer wrote "it is my belief based on the evidence at the scene and my investigation that the apparent contributing circumstance was driver inattention." The officer concluded that plaintiff "failed to negotiate the left hand bend in the roadway" as he approached the intersection.
At his deposition, plaintiff insisted he did not fall asleep at the wheel prior to the accident; however, the EMS technician who responded to the scene stated in his report that plaintiff "reports he thinks he fell asleep at the wheel and struck a tree which woke him up." Further, the responding officer visited plaintiff in the hospital two days after the accident and reported that plaintiff told him "he had just come from a friend's house . . . and was very tired. He remembers turning from Prosser Street onto Herbert Boulevard, however does not recall where/when he fell asleep." Finally, in the "description of accident" box on his December 17, 2006 application for PIP benefits, plaintiff wrote "I fell asleep at the wheel and struck a tree." Plaintiff denied the handwriting on the application was his, but acknowledged that his signature appeared on the back. Viewing the evidence in the light most favorable to plaintiff, we decline to conclude that he fell asleep, but it is undisputed that he failed to negotiate the turn at the intersection.
Edward J. McGlinchey, defendant's public works manager, zoning officer and safety coordinator, gave deposition testimony about the history of the intersection at which plaintiff's accident occurred. Since he first became public works manager in about 1968-69, the intersection had not changed in shape or configuration. The roadways at the intersection do not appear on defendant's master plan. The roadways had once been paved with oil and stone but were repaved with blacktop about ten to thirteen years prior. No grading changes were made to the roadways when the blacktop was laid. McGlinchey testified that defendant never approved the design of the intersection, created plans for the construction of the intersection or conducted any engineering studies concerning the intersection.
There is some dispute regarding the number of prior accidents that occurred at the intersection. McGlinchey vaguely remembered an automobile accident at the intersection ten to thirteen years prior to his deposition. He could not remember any others. Plaintiff testified in his deposition that his father spoke with the owner of the house on Johnson Road at which the accident occurred and the owner informed plaintiff's father that plaintiff's accident was not the first to have occurred at the intersection and that he had installed metal posts to stop people from driving onto his property.
The record on the motion for summary judgment contained reports of two weather-related accidents at the subject intersection. According to a March 25, 2006 police report, a driver lost control of his automobile and crashed into a yard wall as he was making a right turn from Johnson Road onto Herbert Boulevard. The report noted that it was raining and the roadways were wet at the time of the accident. According to a February 4, 2004 police report, a driver lost control of his automobile when he slid on an ice patch and crashed into a light post as he was making a right turn from Johnson Road onto Herbert Boulevard.
Plaintiff also obtained a computer printout from the Winslow Township Police Department that listed twenty other accidents that occurred at or near the intersection between January 1, 1986 and January 28, 2009. According to Sergeant Richard Ostermueller of the police department, the computer system required the records clerk to input the nearest intersecting roadway from where the accident occurred. Thus, the accidents on the computer printout did not necessarily occur at the intersection. Rather, they may have occurred either on Herbert Boulevard at a location where Johnson Road was the nearest intersecting roadway, or on Johnson Road where Herbert Boulevard was the nearest intersecting roadway. Further, in ten of the twenty listed accidents, citations were issued for careless driving or failure to maintain a driving lane.
In granting defendant's motion for summary judgment, the motion judge relied on Kolitch v. Lindedahl, 100 N.J. 485 (1985), a similar case in which plaintiffs' alleged certain features of the roadway at an accident site constituted a dangerous condition under the Tort Claims Act. Here, the judge noted that though it was a "somewhat subjective evaluation," the intersection in Kolitch "sounds like it was more dangerous" than the intersection in the present case. The judge observed that "the amount of accidents that's happening both within one mile of the accident in Kolitch and right at the scene was enormous. Hard to imagine anything worse." The judge further stated that in Kolitch "the Supreme Court determined . . . there was no municipal liability and . . . cite[d] [N.J.S.A.] 59:4-5 and [N.J.S.A. ] 59:4-4. And it seems to me that the Court, of course, is bound by that."
Finally, the judge concluded that
it's not incumbent on the [c]ourt to try to find some reason to try to extract this case from the Tort Claims Act provisions. The legislature obviously passed the Tort Claims Act to limit municipal liability, not to encourage judges to try to find a way to give plaintiffs their day in court.
The judge denied plaintiff's motion for reconsideration without oral argument, noting that
[t]here was a very substantial oral argument on [the summary judgment] motion a couple of motion cycles ago. I think . . . everybody had a chance to air out their arguments and a decision was made, which I don't think, in hindsight, was "palpably unreasonable," nor do I think I overlooked any relevant cases nor are there any new facts or new cases that have come down the pike.
Plaintiff appealed the orders granting summary judgment in favor of defendant and denying his motion for reconsideration.
I.
The standard of review is well established. Pursuant to Rule 4:46-2, summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." In determining whether a genuine issue of fact exists on the record, a judge must decide whether
the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party. . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of R. 4:46-2.
[Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).]
When reviewing summary judgment, an appellate court is bound to apply the same standard as the trial court: it decides first whether there was a genuine issue of fact, and if there was not, it decides whether the law court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). "Bare conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961).
II.
Plaintiff argues that the question of whether the configuration of the roadway constituted a dangerous condition under N.J.S.A. 59:4-2 should have been left to a jury. We disagree.
Public entities in New Jersey are immune from tort actions unless liability is expressly provided for by the Tort Claims Act. N.J.S.A. 59:1-2 ("Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person."); see also Bombace v. Newark, 125 N.J. 361, 372 (1991) (noting that "the Act was clearly intended to reestablish a system in which immunity is the rule, and liability the exception").
Plaintiff seeks to impose liability on defendant pursuant to N.J.S.A. 59:4-2, which reads as follows:
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 dangerous condition; orNothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.
b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
To overcome a public entity's immunity under this section, a plaintiff must establish by a preponderance of the evidence that: (1) a dangerous condition existed on the property at the time of the injury; (2) the dangerous condition proximately caused the injury; (3) the dangerous condition created a foreseeable risk of the kind of injury that occurred; (4) the public entity had actual or constructive notice of the condition in sufficient time prior to the injury to correct the dangerous condition; and (5) the action or inaction taken by the entity to protect against the dangerous condition was palpably unreasonable. See Muhammad v. N.J. Transit, 176 N.J. 185, 194 (2003). Plaintiff failed to establish several of these elements.
N.J.S.A. 59:4-1(a) defines "dangerous condition" as "a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used." Although the existence of a dangerous condition is usually a question of fact for the jury, "the trial judge is required to make a preliminary determination as to whether the alleged condition is in fact a dangerous one within the meaning of the statute. Otherwise the legislatively-decreed restrictive approach to liability would be illusory." Burroughs v. City of Atl. City, 234 N.J. Super. 208, 213 (App. Div.) (quoting Polyard v. Terry, 160 N.J. Super. 497, 508 (App. Div. 1978), aff'd o.b. 79 N.J. 547 (1979)), certif. denied, 117 N.J. 647 (1989).
Clearly, "not every defect in a highway, even if caused by negligent maintenance, is actionable." DeBonis v. Orange Quarry Co., 233 N.J. Super. 156, 166 (App. Div. 1989) (citing Polyard, supra, 160 N.J. Super. at 508). Indeed, we have described "substantial risk" as "one that is not minor, trivial or insignificant." Polyard, supra, 160 N.J. Super. at 508.
Plaintiff has not provided evidence that the intersection at issue in this case constituted a "dangerous condition" within the meaning of the Tort Claims Act. A brief look at photographs of the accident scene reveal that it is simply a Y-shaped intersection similar to countless other intersections drivers may encounter on a regular basis. There is a large, yellow directional sign at the crux of the intersection signaling to drivers that they must make a left or right turn in order to avoid leaving the roadway. Plaintiff does not claim that the sign was blocked or obscured in any way at the time of his accident. See Morrison v. Twp. of Lumberton, 319 N.J. Super. 355, 358 (App. Div. 1999) (noting that the plaintiff's expert report, which blamed the automobile accident on the "failure of the responsible entity to maintain appropriate sight lines and sight triangles" did not claim that "the stop sign was in any way obscured or blocked[,]" a condition indicating possible municipal liability).
In addition to the warning sign that places approaching drivers on notice that they must make a turn, a house with a large front yard behind the sign at the head of the intersection is plainly visible. Any driver exercising due care would clearly see the sign and the house and conclude that he or she must make a turn in order to remain on the roadway. Plaintiff simply continued through the intersection without turning and crashed into a tree.
We note plaintiff seeks to support his claims by identifying prior accidents that allegedly occurred at the subject intersection. Evidence of prior accidents may be used to prove the existence of a dangerous condition only if "the following threshold standard is satisfied: (1) the same or substantial similarity of circumstances between the prior accident and the one involved in the case on trial, and (2) the absence of other causes of the accident." Wymbs v. Twp. of Wayne, 163 N.J. 523, 536 (2000). The "requirement of substantial similarity is more stringent when the prior-accident evidence is offered to prove the existence of a dangerous condition than when offered to prove notice . . . ." Ibid. Plaintiff has not established the existence of any prior accidents that satisfy this standard.
A February 4, 2004, police report referenced by plaintiff reveals that the driver lost control of his automobile when he slid on an ice patch and crashed into a light post as he was making a right turn from Johnson Road onto Herbert Boulevard. Thus, the circumstances of this prior accident were not substantially similar because plaintiff's accident occurred as he was coming from a different direction and turning onto a different road. Further, it is noted that the driver in the prior accident slid on ice, which prevents plaintiff from establishing the absence of other causes such as weather. See 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.").
A March 25, 2006 police report referenced by plaintiff reveals that the driver lost control of his automobile and crashed into a yard wall as he was making a right turn from Johnson Road onto Herbert Boulevard. This report noted that it was raining and the wet roadways contributed to the driver's loss of control of the automobile. Also, this driver's approach to the intersection was not from the same direction as plaintiff's approach.
Plaintiff also obtained a computer printout from the Winslow Township Police Department, by the use of which, he seeks to establish that twenty other accidents occurred at or near the intersection between January 1, 1986 and January 28, 2009. According to Sergeant Ostermueller, the computer system required the records clerk to input the nearest intersecting roadway from where the accident occurred. Thus, these accidents did not necessarily occur at the intersection. Rather, they may have occurred either on Herbert Boulevard at a location where Johnson Road was the nearest intersecting roadway, or on Johnson Road where Herbert Boulevard was the nearest intersecting roadway. Without additional information, plaintiff cannot establish the circumstances of any of these prior accidents were the same or substantially similar to his, or that the prior accidents could not be attributed to any other cause. Indeed, in ten of these twenty prior accidents, the driver was cited for driving carelessly or failing to maintain their lane.
Plaintiff also points to a conversation his father allegedly had with the owner of the house at the accident site on Johnson Road, who stated that there had been other accidents at the intersection in the past, and that he had installed metal posts on the edge of his yard to prevent drivers from entering his property. As presented, anything the homeowner may have told plaintiff's father is hearsay and not competent evidence for the purposes of defendant's motion for summary judgment. See Chi. Title Ins. Co. v. Ellis, 4 09 N.J. Super. 444, 457 (App. Div. 2009) (refusing to consider hearsay evidence offered to show a disputed issue of fact in ruling on a motion for summary judgment). Even if it were to be considered, plaintiff has provided no information about these alleged prior accidents that demonstrate substantial similarity of circumstances or the absence of other causes.
Finally, plaintiff asserts that defendant's public works manager, Edward McGlinchey, "conceded a number of prior accidents had occurred there." In fact, McGlinchey could only "vaguely" remember one accident at the intersection ten to thirteen years prior and could provide no other information that would allow plaintiff to establish that the circumstances were the same or substantially similar to his accident or that there were no other causes. In sum, plaintiff failed to present any evidence that the intersection at issue in this case constitutes a "dangerous condition."
Plaintiff also must establish either that defendant "had actual knowledge of the existence of the condition and knew or should have known of its dangerous character" or that "the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." N.J.S.A. 59:4-3. Plaintiff failed to provide evidence to satisfy this standard.
In his brief, plaintiff does not explain exactly when or how defendant was put on notice of the alleged dangerous condition, other than to assert that "[n]otice of the condition was plain and longstanding." It appears, however, that the only means by which defendant could have been placed on notice would be the existence of prior accidents. Evidence of prior accidents may place a public entity on notice of a dangerous condition. See Wymbs, supra, 163 N.J. at 536-38. Plaintiff must still establish that the circumstances surrounding any prior accidents were substantially similar to his and that no other cause was responsible for the prior accidents. Id. at 536.
As discussed more fully above, plaintiff has not established the existence of any prior accidents in which the circumstances were substantially similar to his accident. Some of the accidents he identifies were arguably caused by weather conditions or driver error, and the location of most of the alleged accidents cannot be pinpointed. Consequently, plaintiff has not established that defendant had actual or constructive notice of the alleged dangerous condition.
We last examine whether plaintiff has demonstrated defendant's conduct meets the remaining statutory standards. "It is critical to note that the last paragraph of [N.J.S.A. 59:4-2] creates a substantial final barrier to establishment of public entity liability." Margolis & Novak, Claims Against Public Entities, comment to N.J.S.A. 59:4-2 (2011); see also Kolitch, supra, 100 N.J. at 492-93. The term "palpably unreasonable" has been distinguished from ordinary negligence:
We have no doubt that the duty of ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff.
[Williams v. Phillipsburg, 171 N.J. Super. 278, 286 (App. Div. 1979).]
"Palpably unreasonable" has been defined as "behavior that is patently unacceptable under any given circumstance." Kolitch, supra, 100 N.J. at 493. Plaintiff must show that it is "manifest and obvious that no prudent person would approve of its course of action or inaction." Ibid. (quoting Polyard v. Terry, 148 N.J. Super. 202, 216 (Law Div. 1977), rev'd on other grounds, 160 N.J. Super. 497 (App. Div. 1978), aff'd o.b., 79 N.J. 547 (1979)). "Part of the equation in determining whether a public entity acted in a palpably unreasonable manner involves the exercise of its 'discretion in determining what action should or should not have been taken.'" Muhammad, supra 176 N.J. at 196 (quoting Brown v. Brown, 86 N.J. 565, 575 (1981)). Although normally an issue for the jury, "the question of palpable unreasonableness may be decided by the court as a matter of law in appropriate cases." Maslo v. City of Jersey City, 346 N.J. Super. 346, 349 (App. Div. 2002); see also Muhammad, supra, 176 N.J. at 200; Carroll v. N.J. Transit, 366 N.J. Super. 380, 391 (App. Div. 2004).
Plaintiff argues that "[a]s [defendant] did nothing whatsoever about the dangerous condition of the curved highway trap, it is not entitled to the 'palpably unreasonable' defense under the last paragraph of N.J.S.A. 59:4-2 as a matter of law." It should first be noted that the palpably unreasonable standard is not a "defense." It is an element plaintiff must prove by a preponderance of evidence to satisfy his claim under N.J.S.A. 59:4-2. See Coyne v. Dep't of Transp., 182 N.J. 481, 488 (2005). Further, N.J.S.A. 59:4-2 expressly states that a public entity will not be held liable unless "the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." (emphasis added). Accordingly, failure to take action does not resolve the palpably unreasonable issue "as a matter of law." Rather, plaintiff must establish that defendant's failure to take action was palpably unreasonable.
Plaintiff has not provided evidence that defendant's actions or inactions were palpably unreasonable. To the contrary, it is undisputed there is a large yellow directional sign at the head of the intersection serving to alert drivers they must make a turn to avoid leaving the roadway. Any driver exercising due care would see this sign and make a turn rather than proceeding directly past it into the front yard of the adjacent house.
Plaintiff relies primarily on his expert's report to support his argument that defendant's failure to take additional action was palpably unreasonable. The only suggestion in the report that does not implicate immunity under N.J.S.A. 59:2-3(a)or N.J.S.A. 59:2-5 is that "the radius of the curve at the intersection between Herbert Boulevard and Johnson" should have been larger. In other words, the configuration of the roadways should have been changed so that the left turn at the intersection is not as sharp. It is unclear how this could be accomplished without ripping up a portion of the road and laying a new one, which would seem to require taking a piece of private property abutting the existing roadways. Defendant's failure to do so is not "palpably unreasonable."
"A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity." N.J.S.A. 59:2-3(a).
"Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices." N.J.S.A. 59:2-5.
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III.
Although plaintiff does not raise the issue in a separate point heading, he states that he "has also satisfied the 'trap liability' provision of the Act, N.J.S.A. 59:4-4." We disagree.
N.J.S.A. 59:4-4 provides:
Subject to section 59:4-2 of this act, a public entity shall be liable for injury proximately caused by its failure to provide emergency signals, signs, markings or other devices if such devices were necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.
In order to impose liability under N.J.S.A. 59:4-4, a plaintiff must first establish the elements of N.J.S.A. 59:4-2, including the existence of a dangerous condition, notice, and palpable unreasonableness by the public entity. Civalier v. Estate of Trancucci, 138 N.J. 52, 69 (1994). "Emergency" has been defined as "a sudden or unexpected occurrence or condition calling for immediate action." Spin Co. v. Md. Cas. Co., 136 N.J. Super. 520, 524 (Law Div. 1975). An emergency warning signal or device is necessary only when the conditions constitute a "trap" for a driver exercising due care. See Johnson v. Southampton, 157 N.J. Super. 518, 523 (App. Div.) (holding that no emergency signal was necessary to warn of an approaching intersection), certif. denied, 77 N.J. 485 (1978); see also Aebi v. Monmouth Cnty. Highway Dep't, 148 N.J. Super. 430, 433-34 (App. Div. 1977) (holding that no emergency signal was necessary when the width of the road suddenly narrowed to the width of an upcoming bridge).
As defendant points out, neither plaintiff nor his expert have claimed that the intersection presents a "sudden or unexpected occurrence or condition calling for immediate action." Rather, photographs in the record reveal that the intersection is marked with a conspicuously large yellow directional sign warning drivers of the need to make a turn to avoid leaving the roadway. There are no obstructions or excess foliage blocking the intersection or the directional sign. Far from constituting a "trap," any driver exercising due care would easily see the split in the roadway and the warning sign as he or she approached the intersection.
Plaintiff has not established the need for an emergency warning signal or device.
IV.
Plaintiff claims that defendant's failure to implement his expert's "simple suggestions for inexpensive repairs" was palpably unreasonable. We disagree.
N.J.S.A. 59:4-5 provides that "[n]either a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices." The term "ordinary" is given its "generally accepted meaning" and has been defined as "regular, usual, normal, common, often reoccurring and not characterized by peculiar or unusual circumstances." Spin Co., supra, 136 N.J. Super. at 524 (citing Black's Law Dictionary 1249 (4th ed. 1957)).
Plaintiff's expert opines, in part, that defendant should have installed "standard warning signs" and "transverse rumble strips" at or near the intersection to correct the allegedly dangerous condition. (emphasis added). The report defined transverse rumble strips as "a typical traffic control device." (emphasis added).
As we have previously noted, "[t]he determination as to the advisability or necessity of a traffic sign or warning device at any particular place requires the exercise of discretion, and hence N.J.S.A. 59:4-5 simply specifies one particular type of discretionary activity to which immunity attaches." Aebi, supra, 148 N.J. Super. at 433 (rejecting a claim the county should have warned drivers that the width of the road was being suddenly reduced to the width of an upcoming bridge). See also Johnson, supra, 157 N.J. Super. at 522-23 (holding the county immune from liability for failure to place ordinary traffic signals warning of an upcoming intersection).
Plaintiff's expert's suggestions regarding "standard warning signs" and "transverse rumble strips" implicate immunity pursuant to N.J.S.A. 59:4-5. Defendant's failure to implement these suggestions was not palpably unreasonable.
Plaintiff's expert also suggested that defendant should have reduced the speed limit approaching the intersection to twenty miles per hour "to encourage a safe approach speed to this sharp curve." Plaintiff argues that the failure to do so supports his argument that defendant's actions or inactions were palpably unreasonable. Again, we disagree.
N.J.S.A. 59:2-3(a) provides that "[a] public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity." The Supreme Court has held this provision applicable to decisions regarding speed limit, noting that "the setting of the speed limit in the first instance is a discretionary function." Kolitch, supra, 100 N.J. at 495 ("[T]he onus of reducing speed to some appropriate level when approaching a curve . . . is on the driver."). Plaintiff's expert's suggestion regarding the speed limit approaching the intersection implicates defendant's discretionary immunity under N.J.S.A. 59:2-3(a) and was appropriately rejected by the motion court.
Plaintiff also argues that the trial court erred in denying his motion for reconsideration. "Reconsideration is a matter to be exercised in the trial court's sound discretion." Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.) (citation omitted), certif. denied, 195 N.J. 5 (2008). A court will grant a motion for reconsideration only where "1) the court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence." Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)), certif. denied, 174 N.J. 544 (2002). In other words, "a litigant must initially demonstrate that the [c]ourt acted in an arbitrary, capricious, or unreasonable manner, before the [c]ourt should engage in the actual reconsideration process." D'Atria, supra, 242 N.J. Super. at 401.
Plaintiff does not point to any evidence the motion court overlooked or whose significance it failed to appreciate, and it is clear its decision was not "palpably incorrect or irrational." Rather, plaintiff merely states that "it appears that the Defendant's Reply Brief and late-submitted Certifications set up a strawman and misled the Motion Judge . . . ." The rest of defendant's subheading concerning his motion to reconsider is simply a restatement of the rest of his brief. As the trial court pointed out, "[e]ssentially, [defense counsel] believes I got it wrong." Disagreement with the trial court is not a proper basis for a motion for reconsideration. See D'Atria, supra, 242 N.J. Super. at 401 ("A litigant should not seek reconsideration merely because of dissatisfaction with a decision of the Court.").
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION