(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
STEVEN CIVALIER V. THE ESTATE OF MARGARET J. TRANCUCCI, ET AL.
(A-93/120/121/122/143/205-93)
Argued May 2, 1994 -- Decided October 20, 1994
O'HERN, J., writing for the Court.
On November 30, 1989, Margaret Trancucci was driving an automobile west on Mariner Drive, a
municipal road in Washington Township, N.J. At the same time, Anthony Previte was driving a panel truck
south on Pitman-Downer Road, a county road. The Trancucci and Previte vehicles collided in the
intersection of the two roads. As a result of the collision, Trancucci and her two adult passengers, Genevieve
Dianora and Barbara Civalier, died. Ten-year-old Steven Civalier, another passenger in Trancucci's car, and
Anthony Previte were injured.
A stop sign was ordinarily posted at the northeast corner of the intersection of the two roads, facing
east on Mariner Drive. Previte knew that a stop sign regulated that intersection and assumed that he had
the right of way. Unfortunately, at the time of the accident, the sign was missing. This was most likely a
result of the vandalism that was a recurring problem for the community. In addition, a Wawa convenience
store, located on the same northeast corner of the intersection, had overgrown shrubbery that obscured
visibility of south bound traffic on Pitman-Downer Road.
The several lawsuits charged the drivers, the Wawa, the store's landscape contractors, and the public
entities, Gloucester County, Washington Township, and the Washington Township Police Department, with
causing the accident. The three public entities filed motions for summary judgment on the basis of N.J.S.A.
59:4-5 (Section 4-5) of the Tort Claims Act (Act), which grants immunity from liability to public entities for
"failure to provide ordinary traffic signals, signs, markings or other similar devices."
The trial court granted the public entities' motions, finding that the asserted dangerous condition of
the property arose from the absence of an ordinary traffic signal, a condition for which Section 4-5
specifically grants immunity to public entities. The trial court concluded that the intersection did not
constitute a "dangerous condition" of public property for purposes of liability under either N.J.S.A. 59:4-21 or
N.J.S.A. 59:4-4 (requiring emergency warning of dangerous conditions that are not apparent) because, when
the sign was removed, the intersection became an ordinary "uncontrolled intersection," regulated by N.J.S.A.
39:4-90. The court reasoned that an uncontrolled intersection is not an unusual, extraordinary or unexpected
occurrence or condition calling for immediate action.
The Appellate Division denied leave to appeal the trial court's ruling. The Supreme Court granted
leave to appeal.
HELD: Under N.J.S.A. 59:4-4 of the Tort Claims Act, a public entity is liable for its failure to replace a
traffic sign only when the motorist's reliance on the previous presence of the sign caused the
claimant's injuries.
1. Immunity is the dominant theme of the Act. This case is distinguishable from other cases that have
declared immunity for failure to provide a traffic signal because, in this case, Previte believed he had the
right of way in reliance on the previous existence of a traffic sign. Because there was reliance in this case,
prior case law does not automatically bar suit against the public entities. (pp. 8-12)
2. New Jersey patterned its Act largely on the California Tort Claims Act. Under California law, when
motorists are entitled to rely on regulatory devices, failure to keep the devices working properly is actionable
unless the malfunctioning of the regulatory device does not make the street dangerous to traffic. The
question is whether the absence of a traffic signal that had been at the intersection was actively deceptive or
lulled the driver into a false sense of security, thus constituting a "trap" under N.J.S.A. 59:4-4 (Section 4-4).
Under Section 4-4, public entities can be held liable for injuries caused by their failure to provide emergency
warning signals. (pp. 12-17)
3. In the absence of reliance on a previously-posted traffic signal, the public entity and the public are in
the same position as they were before the entity posted the sign; public entities have the same immunity for
failure to implement promptly a decision to post a sign as they are in their initial discretionary decision not
to post a sign at all. However, the element of a driver's reliance on the sign's presence may create a
dangerous condition to property for purposes of Section 4-4 when the signal is malfunctioning or absent.
Here, the conditions lulled Previte into a false sense of security. That fact presented a triable issue of
independent negligence, namely, whether if it is shown that the public entity defendants had actual or
constructive notice that the stop sign had disappeared, their failure to take remedial action was "palpably
unreasonable." (pp. 17-20)
4. The dissent fails to acknowledge and apply well-settled rules of statutory construction when
interpreting the Act. First, the interpretations of the almost identical Tort Claims Act in California are
considered especially persuasive of the intended meaning of the Act as adopted by our Legislature. And
California decisions on this issue have held that no immunity exist. Second, the comments of the Attorney
General's Task Force are to be given almost binding effect. That commentary makes it equally clear that the
Act was intended to adopt the holding of several cases decided prior to the Act that provide that one who
has relied on a traffic signal that is no longer functioning properly may recover for the municipality's failure
to replace it, if its absence misdirects traffic. Furthermore, the Court will not expand an immunity beyond
that intended by the Legislature. Moreover, the Court does not agree with the dissent's concern over
potential fiscal burdens that this holding may impose on public entities. (pp. 20-24)
The orders of summary judgment in favor of the public entities are VACATED and the matter is
REMANDED to the Law Division for further proceedings in accordance with this opinion.
JUSTICE GARIBALDI, dissenting, in which JUSTICE POLLOCK joins, is of the view that the
Court, in relying on the driver's reliance, erroneously converts an ordinary stop sign at an ordinary
intersection into an "emergency signal," creating a "dangerous condition," thereby subjecting public entities to
liability. The majority opinion ignores both the Legislature's clear and unambiguous intent, expressed in the
Act to favor immunity for public entities and found in the plain language of both N.J.S.A. 59:4-5 and 59:4-4.
Moreover, in view of widespread vandalism and shrinking governmental resources, the holding will impose a
devastating burden on public entities.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER and STEIN join in JUSTICE O'HERN'S
opinion. JUSTICE GARIBALDI has filed a separate dissenting opinion in which JUSTICE POLLOCK
joins. JUSTICE CLIFFORD did not participate.
SUPREME COURT OF NEW JERSEY
A-93/120/121/122/143/
205 September Term 1993
STEVEN CIVALIER, a minor
by his guardian ad litem,
JOHN R. CIVALIER, JOHN R.
CIVALIER, Individually and
MARIO DIANORA, Executor of
the Estate of GENEVIEVE
DIANORA and/or MARIO DIANORA,
Administrator ad prosequendum
and General Administrator of
the Estate of BARBARA CIVALIER,
Plaintiffs-Appellants,
v.
THE ESTATE OF MARGARET J.
TRANCUCCI, DOMINICK R.
TRANCUCCI, WAWA, INC., and J.
HEWITT & SONS,
Defendants-Appellants,
and
TOWNSHIP OF WASHINGTON,
WASHINGTON TOWNSHIP POLICE
DEPARTMENT, COUNTY OF GLOUCESTER,
Defendants-Respondents.
ANTHONY F. PREVITE, GLOUCESTER COUNTY
HIGHWAY DEPARTMENT, AND/OR THE STATE
OF NEW JERSEY jointly, severally,
and/or in the alternative,
Defendants.
------------------------------------
CARLO P. TRANCUCCI, as General
Administrator and Administrator
Ad Prosequendum of the Estate of
Margaret J. Trancucci; and Carlo
P. Trancucci, Individually,
Plaintiffs-Appellants,
v.
WASHINGTON TOWNSHIP, N.J.;
WASHINGTON TOWNSHIP POLICE
DEPARTMENT; GLOUCESTER COUNTY, N.J.,
Defendants-Respondents,
and
WAWA, INC., and J. HEWITT & SONS,
Defendants-Appellants,
and
ANTHONY F. PREVITE; JESSE HEWITT,
ABC COMPANY, a fictitious business
entity whose identity is currently
unknown; XYZ COMPANY, a fictitious
business entity whose identity is
currently unknown; and JOHN DOE 1
through 10, fictitious persons
whose identities are currently
unknown,
Defendants.
---------------------------------
ANTHONY F. PREVITE and FLORENCE A.
PREVITE, husband and wife,
Plaintiffs-Appellants,
v.
THE ESTATE OF MARGARET J. TRANCUCCI,
DOMINICK R. TRANCUCCI, WAWA, INC.,
J. HEWITT & SONS, WASHINGTON TOWNSHIP
POLICE DEPARTMENT,
Defendants-Appellants,
and
COUNTY OF GLOUCESTER and TOWNSHIP OF
WASHINGTON,
Defendants-Respondents,
and
STATE OF NEW JERSEY,
Defendant.
--------------------------------------
INTERESTED UNDERWRITERS AT
LLOYDS AS ASSIGNEES OF
ANTHONY F. PREVITE,
Plaintiff,
v.
DOMINICK TRANCUCCI and
DOMINICK TRANCUCCI, as
Administrator of the Estate
of Margaret Trancucci,
Defendants and
Third-Party Plaintiffs-Appellants,
v.
WAWA, INC., MILLVILLE MANUFACTURING CO.,
t/a WAWA, J. HEWITT & SONS,
Third-Party Defendants-Appellants,
and
COUNTY OF GLOUCESTER, WASHINGTON TOWNSHIP,
WASHINGTON TOWNSHIP POLICE DEPARTMENT,
Third-Party Defendants-Respondents.
and
JOHN DOES (1-100), fictitious names,
Third-Party Defendants.
Argued May 2, 1994 -- Decided October 20, 1994
On appeal from the Superior Court, Appellate
Division.
Richard S. Ranieri argued the cause for
appellant Wawa, Inc. (Callahan, Delany &
O'Brien, attorneys; Glenn P. Callahan, of
counsel).
John L. Slimm argued the cause for respondent
Washington Township Police Department (Slimm
& Goldberg, attorneys; Peter S. Cuddihy, on
the brief).
Talbot B. Kramer argued the cause for
respondent Township of Washington (Bernadette
A. Duncan, attorney).
Lawrence Berg argued the cause for respondent
County of Gloucester (Marshall, Dennehey,
Warner, Coleman and Goggin, attorneys).
Bertram P. Goltz, Jr., Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (Deborah T.
Poritz, Attorney General, attorney; Joseph L.
Yannotti, Jr., Assistant Attorney General, of
counsel).
Barry J. Hockfield, for appellants Steven
Civalier, a minor by his guardian ad litem,
John R. Civalier; John R. Civalier,
Individually; and Mario Dianora, Executor of
the Estate of Genevieve Dianora and/or Mario
Dianore, Administrator ad Prosequendum and
General Administrator of the Estate of
Barbara Civalier, was granted leave to rely
on the briefs and argument on behalf of
appellant Wawa, Inc. (Hockfield, Hasner,
Weiss & Rosenberg, attorneys).
Vincent P. Sarubbi, for appellants Anthony F.
Previte and Florence A. Previte, husband and
wife, was granted leave to rely on the briefs
and argument on behalf of appellant Wawa,
Inc. (Sarubbi & Sarubbi, attorneys).
Charles R. Cohen, for appellant Carlo P.
Trancucci, as General Administrator and
Administrator Ad Prosequendum of the Estate
of Margaret J. Trancucci; and Carlo P.
Trancucci, Individually, was granted leave to
rely on the briefs and argument on behalf of
appellant Wawa, Inc. (Pearl, Levy & Cohen,
attorneys).
Burchard S. Martin, for appellant Estate of
Margaret Trancucci, was granted leave to rely
on the briefs and argument on behalf of
appellant Wawa, Inc. (Martin, Gunn & Martin,
attorneys).
Michael K. Tuzzio, for appellant J. Hewitt &
Sons, was granted leave to rely on the briefs
and argument on behalf of appellant Wawa,
Inc. (Donington, Karcher, Salmond, Ronan &
Rainone, attorneys).
The opinion of the Court was delivered by
O'HERN, J.
At issue in this case is the liability of public-entity
defendants, Gloucester County, Washington Township, and the
Washington Township Police Department, for an automobile accident
allegedly caused by a missing traffic sign. Three people lost
their lives in the accident.
Because the case arises on summary judgment, all inferences of fact must be drawn in favor of those parties opposing the motion. Pretrial discovery discloses the following. Margaret Trancucci was driving an automobile west on Mariner Drive, a municipal road in Washington Township, New Jersey, in the early
evening of November 30, 1989. Anthony Previte was driving a
panel truck south on Pitman-Downer Road, a county road. A stop
sign was ordinarily posted at the northeast corner of the
intersection of the two roads, facing east on Mariner Drive.
Previte knew that a sign regulated the intersection and he
assumed that he had the right of way. However, at the time of
the accident, the sign was missing, leaving only a bare pole.
The sign had been reported missing earlier in November and
Washington Township had replaced it. Between the time of that
replacement and the accident, the sign had been removed again.
The Chief of the Washington Township Police Department
acknowledged that vandalism of stop signs is a recurring problem
for the community.
A Wawa convenience store is located on the same northeast
corner of the intersection. Overgrown shrubbery on that corner
obscured visibility of southbound traffic on Pitman-Downer Road.
An eyewitness estimated the speed of Previte's truck to be forty-five miles per hour and the speed of Trancucci's car to be five
miles per hour as she entered the intersection. When Trancucci
reached the center of the intersection, she apparently noticed
Previte's oncoming truck and accelerated in an unsuccessful
effort to avoid being hit by the truck.
As a result of the accident, Trancucci and her two adult
passengers, Genevieve Dianora and Barbara Civalier, died. Ten-year-old Steven Civalier, another passenger in Trancucci's car,
and Anthony Previte were injured. These suits variously charge
the drivers, the convenience store, the store's landscape
contractors, and the public entities with causing the accident.
The three public entities filed motions for summary judgment on
the basis that N.J.S.A. 59:4-5 grants them immunity from
liability for "failure to provide ordinary traffic signals,
signs, markings or other similar devices."
The trial court granted those motions, holding that the
asserted dangerous condition of property arose from the absence
of an ordinary traffic signal, a condition for which N.J.S.A.
59:4-5 specifically grants public entities immunity. The court
concluded that the intersection did not constitute a "dangerous
condition" of public property for purposes of liability under
either N.J.S.A. 59:4-2 or N.J.S.A. 59:4-4 (requiring emergency
warning of dangerous conditions that are not apparent) because,
when the sign was removed, the intersection became an ordinary
"uncontrolled intersection" under N.J.S.A. 39:4-90, and the
regulations promulgated under that statute dictated the
appropriate conduct of drivers approaching the intersection. The
court thus reasoned that an uncontrolled intersection is not an
unusual, extraordinary, or unexpected occurrence or condition
calling for immediate action under N.J.S.A. 59:4-5. The
Appellate Division denied leave to appeal that ruling. We
granted leave to appeal,
134 N.J. 556, 557 (1993).
In a recent series of cases, we have considered the proper relationship between the liability and immunity provisions of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3 (the Act). For example, in Weiss v. New Jersey Transit, 128 N.J. 376 (1992), we faced an issue similar to that currently before us. In that case, a driver's car was struck by a train at an uncontrolled railroad grade crossing. A traffic signal had long been planned for the grade crossing, but a "tortuous history of bureaucratic red-tape," 245 N.J. Super. 265, 270 (App. Div. 1991), delayed its operation. Plaintiffs in Weiss claimed that the legislative grant of immunity for failure to place a traffic signal under N.J.S.A. 59:4-5 did not apply because the true cause of the dangerous condition was not the absence of the traffic signal but rather the independent negligence of the public bodies in delaying the installation of the traffic signal.
We did not agree. We believed that the denial of immunity to a public entity on the basis of administrative negligence in implementing a plan to post a traffic signal would result in there being "little left to the immunities granted by the Act." 128 N.J. at 380. We recognized the closeness of the call, but we believed that the liability provisions of the Act could not take precedence over specifically-granted immunities. Our precedent supported that conclusion. In Bombace v. City of Newark, 125 N.J. 361 (1991), we had held that the ordinary negligence of a
municipal official in terminating a legal proceeding to prosecute
housing violations did not diminish the explicit grant of
immunity contained in the Act for failure to enforce the law. In
Pico v. State,
116 N.J. 55 (1989), we had held that the express
immunity for weather conditions under N.J.S.A. 59:4-7 barred suit
against the State for any negligent delay in dispatching the road
sanders to clear up icy roads. In short, we recognize that "[w]e
have been adjured by the framers of the Tort Claims Act that we
should approach these cases from the perspective that immunity is
the dominant theme of the Act. * * * [When] an immunity applies,
liability does not attach." Weiss, supra, 128 N.J. at 383.
Although this accident might not have happened had the
public bodies used "vandal-proof" bolts to make removal of the
sign much more difficult, were we to recognize the failure to
affix properly an ordinary traffic signal as a basis for
government liability, we would be logically compelled to
recognize liability for failure to post promptly a traffic signal
as well. We do not believe that the Legislature intended such
liability. See Kolitch v. Lindedahl,
100 N.J. 485, 496 (1985)
("[B]oth the decision [to post a sign] and the act of
implementation are one and the same for the purposes of the
[traffic sign immunity]."). Were that issue (improper posting of
the sign) the only issue, we would affirm.
One fact, however, distinguishes this case from Weiss and Kolitch. As the driver to the right at an uncontrolled intersection, Previte had the right of way, N.J.S.A. 39:4-90. In addition, he believed that he was entering a controlled intersection that provided him the right of way. Although N.J.S.A. 59:4-5 explicitly grants public entities immunity from liability "for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices," an exception to the immunity provisions of the Act allows public entities to be held liable for injuries caused by their failure to provide emergency warning signals:
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.
How does the foregoing provision relate to the immunity for failure to provide ordinary traffic signals under N.J.S.A. 59:4-5? Spin Co. v. Maryland Casualty Co., 136 N.J. Super. 520, 524 (Law Div. 1975) (finding no emergency in failure to post height of bridge), explains that "in enacting N.J.S.A. 59:4-4 and 5, * * * the Legislature intended to codify pre-existing case law
* * * ." The comment to the sections indicates that those
sections codified Hoy v. Capelli,
48 N.J. 81 (1966), and Bergen
v. Koppenal,
52 N.J. 478 (1968). See N.J.S.A. 59:4-5 comment
(stating that "[t]his section is consistent with existing New
Jersey law," and citing Hoy); N.J.S.A. 59:4-4 comment (stating
that provision imposes liability "for the failure on the part of
a public entity to provide an emergency warning signal or device
when a condition exists constituting a `trap' to a person using a
street or highway with due care," and citing Bergen).
In Hoy, supra,
48 N.J. 81, the City of Wildwood removed a
defective traffic light that needed to be replaced. The City
took no further action to ensure that the intersection, which had
been regulated by two stop signs prior to the initial
installation of the traffic light, remained safe while the
traffic light was down. As a result, a collision occurred. The
Court held that the common law furnished the City with immunity
from liability for the accident because "the sole traffic light
at the intersection had been completely removed for almost two
months and there [was] not the slightest suggestion that either
driver relied on the fact that it or any other traffic regulation
device had existed." Id. at 86.
On the other hand, in Bergen, supra,
52 N.J. 478, this Court
allowed a jury to consider public-entity liability for failure to
take remedial action after a broken cable caused a traffic light
to turn and become misdirected. The Court identified the issue
as "whether for tort purposes the Township was * * * under a duty
to take over traffic control when its officer learned of the
situation * * *." Id. at 480. It held that "a duty may be found
if a police officer learns of an emergent road condition which is
likely not to be observed by a motorist and which holds an
unusual risk of injury." Ibid.
The facts of our case differ from the facts of Hoy in that
the truck driver, Previte, was relying on the existence of a stop
sign on the municipal road as he drove down the county road,
whereas the drivers in Hoy were not relying on the existence of
any traffic signal. Thus, because the Court qualified its ruling
in Hoy by emphasizing the absence of reliance by either driver,
the codification of Hoy does not automatically bar suit against
the public bodies in this case.
New Jersey patterned its Tort Claims Act largely on the California Tort Claims Act. Tice v. Cramer, 133 N.J. 347, 361 (1993). In its May 1972 report to the New Jersey Legislature, the Attorney General's Task Force on Sovereign Immunity gave a paragraph-by-paragraph summary of the prototype California Tort Claims Act of 1963. The California act has similar interrelated provisions granting immunity for "failure to provide" traffic signals but imposing liability for "failure to warn" of dangerous conditions not readily apparent to the public.
The text of the two California provisions as they existed in
1972 read as follows:
§ 830.4 [Traffic control signs, roadway
markings].
A condition is not a dangerous condition
within the meaning of this chapter merely
because of the failure to provide regulatory
traffic control signals, stop signs, yield
right-of-way signs, or speed restriction
signs, as described by the Vehicle Code, or
distinctive roadway markings as described in
Section 21460 of the Vehicle Code.
§ 830.8 [Failure to provide traffic or
warning signals, markings, etc.]
Neither a public entity nor a public
employee is liable under this chapter for an
injury caused by the failure to provide
traffic or warning signals, signs, markings
or devices described in the Vehicle Code.
Nothing in this section exonerates a public
entity or public employee from liability for
injury proximately caused by such failure if
a signal, sign, marking or device (other than
one described in Section 830.4) was 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.
The approved California Law Revision Commission Comment to
that section stated:
This section prevents the imposition of
liability based on the failure to provide
traffic regulatory or warning signals or
devices of a type not listed in Section 830.4
but liability may exist for failure to
provide such a signal or device where the
condition constitutes a trap to a person
using the street or highway with due care.
Government Tort Liability 558 (1964).]
A New Jersey legislator seeking to understand the meaning of
these prototype provisions would have been drawn to Arvo Van
Alstyne's definitive treatise, California Government Tort
Liability, supra. In explaining the meaning of Section 830.4,
Professor Van Alstyne wrote:
The purpose of this limitation of the meaning
of "dangerous condition" is directly related
to the discretionary nature of the subject
matter. As the California Law Revision
Commission pointed out (RECOMMENDATION
RELATING TO SOVEREIGN IMMUNITY 823):
Whether or not to install regulatory traffic
devices in particular locations requires an
evaluation of a large variety of technical
data and policy criteria, including traffic
volume frequency and peak load factors,
physical layout and terrain, visibility
hazards and obstructions, prevailing weather
conditions, nature of vehicular use, normal
traffic speed in the area, volume of
pedestrian traffic, alignment and curvature,
need for similar precautionary measures at
other like places, alternative methods of
control, and availability of funds to do the
job. Decisions not to adopt control devices,
when based on premises of this order, do not
appear to be readily susceptible to
intelligent and rational reexamination by
untrained juries or judges sitting as triers
of fact.
Hence, Professor Van Alstyne noted that the Section 830.4
granting of immunity for failure to provide certain regulatory
devices is
limited to a "failure to provide," and does
not affect liability based on a failure to
maintain regulatory devices, stop signs, and
roadway markings, when this failure causes
the road or intersection to become dangerous.
Under the Public Liability Act, when
motorists were entitled to rely on regulatory
devices, the failure to keep the devices
working properly and unobscured was held
actionable. Dudum v City of San Mateo (1959)
167 CA2d 593, 334 P2d 968 (stop sign obscured
by foliage); Bady v. Detwiler (1954)
127 CA2d 321, 273 P2d 941 (defective traffic light
indicating "Go" in both directions); Irvin v
Padelford (1954)
127 CA2d 135, 273 P2d 539
(stop sign temporarily removed during
repairs); Rose v County of Orange (1949)
94 CA2d 688, 211 P2d 45 (stop sign knocked down
and not replaced). Of course, if the
malfunctioning of the regulatory device did
not make the street dangerous to traffic, no
liability was imposed. Cf. Goodman v Raposa,
supra (fact that traffic light not working
did not furnish basis of liability, where
vehicles on main boulevard were protected
from side street traffic by boulevard stop
signs).
The New Jersey Act does not, as California's does, draw a dichotomy between regulatory signs (such as stop signs, stop lights, and double lines) and warning devices (such as "curve ahead" and "road narrows"). Instead, the New Jersey Act compresses the concepts into a single mold, grants immunity for failure to provide ordinary traffic signals, N.J.S.A. 59:4-5, but imposes liability for failure to provide warning signs when
"necessary to warn of a dangerous condition which endanger[s] 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." N.J.S.A. 59:4-4.
The reasoning in Hoy, supra, and Bergen, supra, both
accepted by the official commentary of the New Jersey Act,
appears to be the same as that under California law. When
motorists are entitled to rely on regulatory devices, failure to
keep the devices working properly is actionable unless the
malfunctioning of the regulatory device does not make the street
dangerous to traffic. Rose, supra,
211 P.2d 45, is almost on all
fours with this case. In that case, cited in Van Alstyne, supra,
at 198, as consistent with the analogous California Code
provision dealing with failure to provide stop signs, a
preexisting stop sign had been taken down when city workers took
down a light pole to repair wiring. "Liability [for the missing
stop sign in Rose] was based on the fact that its total absence,
when a driver on the through street was entitled to rely on its
protective presence, created a dangerous condition of public
property." Dudum, supra, 334 P.
2d at 971.
How do we assess whether, under the New Jersey Act, a "trap"
for motorists has been created? One court has suggested an
analysis:
In Bergen * * * , the malfunction in the
signal was actively deceptive: a green light
appeared at both junctions of the
intersection. A jury could reasonably infer
that the light was a cause of the accident,
as each person approaching the intersection
was, in effect, lulled into a false sense of
security by the green light in his favor.
[Lytle v. City of Newark,
166 N.J. Super. 191, 196 (Law Div. 1979) (holding public
entity immune when both drivers could plainly
see that traffic light was not functioning).]
The question is whether the absence of a traffic signal that had
been at the intersection "was actively deceptive" or "lulled [at
least one of the drivers] into a false sense of security," thus
constituting a "trap" under N.J.S.A. 59:4-4.
Consistent with the California understanding and prior case law, we hold, in this context of previously-posted traffic signals, that our "trap liability" provision, N.J.S.A. 59:4-4, limits recovery to those plaintiffs injured by motorists' reliance on the proper functioning or presence of a previously posted signal to their detriment. We limit the imposition of liability in that way because in the absence of reliance the public entity and the public are in the same position as they were before the entity posted the sign. In that setting of non-reliance, as we held in Weiss, supra, 128 N.J. 376, public entities have the same immunity for failure to implement promptly a decision to post a sign as they have for their initial discretionary decision not to post a sign at all. However, the element of a driver's reliance on the sign's presence may create
a dangerous condition of property for purposes of N.J.S.A. 59:4-4
when the signal is malfunctioning or absent. Therefore, we hold
that a public entity is liable for its failure to replace a
traffic sign only when the motorist's reliance on the previous
presence of the sign caused the claimant's injuries.
In Eason v. New Jersey Automobile Full Insurance
Underwriting Ass'n,
274 N.J. Super. 364 (App. Div. 1994), the
court held that a driver who had relied on the presence of a stop
sign could assert a claim under N.J.S.A. 59:4-4:
After the municipality has both
determined by ordinance to place, and has
actually installed the traffic sign, its
temporary absence could also be considered an
emergency requiring the municipality to act,
and for which the municipality has no
immunity. N.J.S.A. 59:4-4.
Similarly, in Shuttleworth v. Conti Construction Co., Inc., 193 N.J. Super. 469 (App. Div. 1984), the court held that those injured by a motorist who went through a stop sign obscured by a bush had a cause of action against the county:
Whether we view this case as one challenging the manner in which the sign was originally placed given the sight lines along [the road], or the manner in which the sign was maintained and the bushes trimmed (the offending bush, * * * was on county property), the challenge is to the creation or maintenance of a dangerous condition after the discretionary activity had been taken by the county.
Smith v. State Department of Transportation,
247 N.J. Super. 62 (App. Div. 1991), certif. denied,
130 N.J. 13 (1992), differs
from Eason and Shuttleworth. In Smith, only a sign on an
overpass indicated the height of the underpass beneath it. The
absence of an earlier warning caused a tractor-trailer that was
too high to pass through the underpass to back up toward an exit,
thus obstructing the roadway and creating a hazard. The court
held that "because there is immunity for not posting a sign
initially and for where the sign is placed, immunity also exists
for not replacing a missing sign." Id. at 69. However, the
circumstances of Smith did not suggest the existence of a "trap."
The truck driver in that case never knew of the existence of the
earlier sign; therefore, that sign's absence did not lull the
driver into a false sense of security. Moreover, although it
makes good sense to do so, there is no duty to post the height of
a bridge. Spin, supra,
136 N.J. Super. 520. Drivers can see
that for themselves.
In Weiss, supra,
128 N.J. 376, we noted that
[w]ere there any other triable issue of
independent negligence -- for example, had
the underbrush that obscured visibility at
the crossing been on defendants' property and
subject to their maintenance, or had there
been any other condition of the property that
caused the dangerous condition to exist,
e.g., a pothole of long duration, an oil
spill on the roadway, or a broken traffic
light, the complaint might have stated a
cause of action.
[Id. at 382 (emphasis added)
(citation omitted).]
In a sense, we have here a broken traffic signal. Like the
misdirected light in Bergen, supra,
52 N.J. 478, the conditions
here lulled Previte into a false sense of security. This case,
then, unlike Weiss, does present a "triable issue of independent
negligence," namely, whether, if it is shown that the public-entity defendants had actual or constructive notice that the stop
sign had disappeared, their failure to take remedial action was
"palpably unreasonable." Whereas Weiss concerned the initial
implementation of the discretionary decision to place a traffic
signal at a railroad crossing, for which N.J.S.A. 59:4-5 clearly
immunizes public entities, see Kolitch, supra, 100 N.J. at 496,
this case concerns a failure to replace a traffic sign after the
motoring public had come to rely on it.
To sum up, we agree with our dissenting colleagues that taken alone the immunity language of N.J.S.A. 59:4-5 might very well support a conclusion that no liability exists in this case. After all, one's first tendency is to conclude, post at ___ (slip op. at 7), that "the true culprit" is the public body's "failure to provide" a stop sign at the intersection. But further analysis suggests that the "true culprit" is not the absence of the stop sign but the go-ahead signal previously given to motorists in the through way.
In its single-dimensional focus on N.J.S.A. 59:4-5, the
dissent fails to acknowledge and apply the well-settled rules of
statutory construction that the Court has followed in
interpreting the Tort Claims Act from its inception. The first
rule is that the interpretations of the almost identical act in
California, the act on which our Tort Claims Act was patterned,
are considered especially persuasive of the intended meaning of
the Act as adopted by our Legislature. When the Legislature
modeled our law after the California act, it intended, in the
absence of other express intent, that we follow the California
courts' interpretations of the Act. Tice, supra, 133 N.J. at
361-62; Fuchilla v. Layman,
109 N.J. 319, 331, cert. denied sub
nom. University of Medicine & Dentistry v. Fuchilla,
488 U.S. 826,
109 S. Ct. 75,
102 L. Ed.2d 51 (1988). That interpretive
rule was based on precisely what the New Jersey Legislature
intended, and such interpretations of the Act conform to the
legislative intent, not supersede it, as the dissent claims.
California decisions on the issue before us have held that no
immunity exists. One who is injured because of a reliance on the
existence of a stop sign that has been removed and not replaced
may recover if all other conditions of liability are met.
Another rule of statutory interpretation that we have
regularly followed in construing the Act is that the comments of
the New Jersey Attorney General's Task Force that were before the
Legislature when it adopted the Tort Claims Act are given not
simply deference but something close to binding effect.
Rochinsky v. State Dep't of Transp.,
110 N.J. 399, 407 n.4
(1988). The commentary to the relevant sections of the Act makes
it equally clear that the Act was intended to adopt the holding
of several cases decided prior to the Act itself. That the
Legislature intended the Act to be interpreted in accordance with
the commentary is not an invention of this Court but a conclusion
uniformly supported by drafting history. The cases cited in that
commentary make clear to us that one who has relied on a traffic
signal that is no longer functioning properly may recover for the
municipality's failure to replace it if its absence misdirects
traffic. In imposing liability in this matter, the Court is
simply doing the will of the Legislature, and doing it in the
same way we have done since the Act became law. That only those
who are injured because of a motorist's reliance will recover
(whether they are out-of-towners or residents) is simply a
consequence of the rule itself, recognized in the cases cited in
the commentary and by the courts of California.
The dissent is also correct in noting the well-settled rule
that immunity is the dominant theme of the Act and that the
function of this Court is not to diminish a legislatively
intended immunity by inventive judicial interpretation. But this
Court also does not function to expand an immunity beyond that
intended by the Legislature, to expand it to a point that
conflicts with legislative intention as determined by our
previously well-settled rules of construction. We do not intend
to become, and in the past we have not been, advocates of
compensation for injured parties in conflict with the legislative
will. We have sustained the legislative immunities in the most
tragic settings. See Levin v. County of Salem,
133 N.J. 35
(1993) (finding no government liability where man dove from
county bridge into shallow tidal waters, suffering paralyzing
injury); Manna v. State,
129 N.J. 341 (1992) (holding public
entity immune where motorist killed in accident on a bridge
slippery from rain); Weiss, supra,
128 N.J. 376 (finding
governmental entity immune from suit arising from fatal train
crash). On the other hand, we cannot deprive injured claimants
of just compensation when the Legislature intended that they have
a right to seek recovery.
Finally, we recognize the concerns that our dissenting
members have expressed about the potential fiscal burdens that
our holding may impose on public bodies. The fear is that
motorists may feign reliance on the absence of a previously-posted stop sign as an excuse for errant conduct and may seek to
hold public bodies liable. Only a fairly sophisticated motorist,
however, would know our tort-claims law, and we suspect that most
drivers will tell their stories honestly in their initial
interviews with police investigators. Courts will detect any
later attempt to varnish the truth.
In the twenty-two years since the Tort Claims Act was
enacted, very few cases have arisen with a scenario such as this
one. We do not anticipate an escalation of such claims. The
Legislature has provided a remedy to members of the public
injured by "failure on the part of a public entity to provide an
emergency warning signal or device when a condition exists
constituting a `trap' to a person using a street or highway with
due care." N.J.S.A. 59:4-4 comment. But the Legislature has
closely limited that remedy by requiring compliance with N.J.S.A.
59:4-2, which, among other things, requires a plaintiff to
demonstrate that the public entity had actual or constructive
notice of the dangerous condition and that the public entity's
conduct was "palpably unreasonable." Those requirements are
difficult to meet. See, e.g., DeBonis v. Orange Quarry Co.,
233 N.J. Super. 156, 170-71 (App. Div. 1989) (holding that county's
general knowledge that stones from quarry would occasionally
create dangerous condition on road surface was insufficient to
impute to county constructive knowledge of condition of road at
time of motorcyclist's accident because condition was dynamic
rather than static and was not predictably recurrent). In
addition, the Legislature has recognized that public entities
cannot be held liable for their discretionary determinations
about allocation of limited resources for duties such as road
maintenance. N.J.S.A. 59:2-3. In short, a regular schedule of
maintenance is strong evidence of reasonable conduct.
We vacate the orders of summary judgment in favor of the
public entities and remand the matter to the Law Division for
further proceedings in accordance with this opinion.
Chief Justice Wilentz and Justices Handler and Stein join in
this opinion. Justice Garibaldi has filed a separate dissenting
opinion in which Justice Pollock joins. Justice Clifford did not
participate.
SUPREME COURT OF NEW JERSEY
A-93/l20/l2l/l22/l43/
205 September Term 1993
STEVEN CIVALIER, a minor
by his guardian ad litem,
JOHN R. CIVALIER, JOHN R.
CIVALIER, Individually and
MARIO DIANORA, Executor of
the Estate of GENEVIEVE
DIANORA and/or MARIO DIANORA,
Administrator ad prosequendum
and General Administrator of
the Estate of BARBARA CIVALIER,
Plaintiffs-Appellants,
v.
THE ESTATE OF MARGARET J.
TRANCUCCI, DOMINICK R.
TRANCUCCI, WAWA, INC., and J.
HEWITT & SONS,
Defendants-Appellants,
and
TOWNSHIP OF WASHINGTON,
WASHINGTON TOWNSHIP POLICE
DEPARTMENT, COUNTY OF GLOUCESTER,
Defendants-Respondents,
ANTHONY F. PREVITE, GLOUCESTER COUNTY
HIGHWAY DEPARTMENT, AND/OR THE STATE
OF NEW JERSEY jointly, severally,
and/or in the alternative,
Defendants.
_____________________________________
CARLO P. TRANCUCCI, as General
Administrator and Administrator
Ad Prosequendum of the Estate of
Margaret J. Trancucci; and Carlo
P. Trancucci, Individually,
Plaintiffs-Appellants,
v.
WASHINGTON TOWNSHIP, N.J.;
WASHINGTON TOWNSHIP POLICE
DEPARTMENT; GLOUCESTER COUNTY, N.J.,
Defendants-Respondents,
and
WAWA, INC., and J. HEWITT & SONS,
Defendants-Appellants,
and
ANTHONY F. PREVITE; JESSE HEWITT,
ABC COMPANY, a fictitious business
entity whose identity is currently
unknown; XYZ COMPANY, a fictitious
business entity whose identity is
currently unknown; and JOHN DOE 1
through 10, fictitious persons
whose identities are currently
unknown,
Defendants.
______________________________________
ANTHONY F. PREVITE and FLORENCE A.
PREVITE, husband and wife,
Plaintiffs-Appellants,
v.
THE ESTATE OF MARGARET J. TRANCUCCI,
DOMINICK DR. TRANCUCCI, WAWA, INC.,
J. HEWITT & SONS, WASHINGTON TOWNSHIP
POLICE DEPARTMENT,
Defendants-Appellants,
and
COUNTY OF GLOUCESTER and TOWNSHIP OF
WASHINGTON,
Defendants-Respondents,
and
STATE OF NEW JERSEY,
Defendants.
______________________________________
INTERESTED UNDERWRITERS AT
LLOYDS AS ASSIGNEES OF
ANTHONY F. PREVITE,
Plaintiff,
v.
DOMINICK TRANCUCCI and
DOMINICK TRANCUCCI, as
Administrator of the Estate
of Margaret Trancucci,
Defendants and
Third Party Plaintiffs-Appellants,
v.
WAWA, INC., MILLVILLE MANUFACTURING CO.,
t/a WAWA, J. HEWITT & SONS,
Third-Party Defendants-Appellants,
and
COUNTY OF GLOUCESTER, WASHINGTON TOWNSHIP,
WASHINGTON TOWNSHIP POLICE DEPARTMENT,
Third Party Defendants-Respondents,
and
JOHN DOES (1-100), fictitious names,
Third-Party Defendants.
__________________________________________
GARIBALDI, J., dissenting.
This Court holds today that N.J.S.A. 59:4-5 does not immunize a public entity from liability for an automobile accident caused by a missing "stop" sign. Relying on the
driver's "reliance," ante at ___ (slip op. at 17), the Court,
however, erroneously converts an ordinary stop sign at an
ordinary intersection into an "emergency signal," creating a
"dangerous condition," thereby subjecting public entities to
liability. I disagree and would affirm the trial court's summary
judgments in favor of defendants Gloucester County, Washington
Township, and the Washington Township Police Department.
The majority opinion ignores both the Legislature's clear
and unambiguous intent, expressed in the New Jersey Tort Claims
Act, N.J.S.A. 59:l-l to l2-3 (Act), to favor immunity for public
entities, and the plain language of both N.J.S.A. 59:4-5 and
N.J.S.A. 59:4-4. In this era of widespread vandalism and
shrinking governmental resources, today's holding also will
impose a devastating burden on municipalities, counties, and the
State.
The Legislature intended that under the Act a public entity's immunity was to prevail over its potential liability. The Comment to N.J.S.A. 59:2-1 makes unmistakably clear that "the basic statutory approach of the New Jersey Tort Claims Act shall be that immunity of all governmental bodies in New Jersey is re-established." (Emphasis added.) The Comment to Subsection (b), of that statute states: "Subsection (b) is intended to insure that any immunity provisions provided in the act or by common law will prevail over the liability provisions. It is anticipated
that the Courts will realistically interpret both the statutory
and common law immunities in order to effectuate their intended
scope."
We have repeatedly emphasized that "immunity is the dominant
theme of the Act" and that where immunity applies, liability does
not attach. Weiss v. New Jersey Transit, l
28 N.J. 376, 382-83
(l992); see Pico v. State, ll
6 N.J. 55 (l989); Rochinsky v.
State, Dep't of Transp., ll
0 N.J. 399 (l988); Kolitch v.
Lindedahl, l
00 N.J. 485, 492 (l985). Although the majority
acknowledges that liability provisions cannot take precedence
over specifically-granted immunities, ante at ___ (slip op. at 8-9), it departs from that well-established principle by ignoring
the immunity granted public entities under N.J.S.A. 59:4-5.
The plain language of N.J.S.A. 59:4-5 discloses that the immunity set forth in that statute clearly and unambiguously applies to a public entity's failure to replace a missing stop sign. That statute provides: "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." (Footnote omitted.)
N.J.S.A. 59:4-5 has been applied to immunize public entities from liability for failure to provide an ordinary traffic signal or sign in a variety of circumstances. For example, in Weiss, supra, l28 N.J. at 385, this Court held that the failure of
public entities to provide a traffic signal at a railroad
crossing in a timely manner was immunized by N.J.S.A. 59:4-5.
Similarly, in Kolitch, supra, l00 N.J. at 496, this Court found
that the State was not liable for failing to warn motorists of
the hazardous nature of a curve on a highway. The Appellate
Division has also applied N.J.S.A. 59:4-5 on several occasions.
See, e.g., Smith v. State, Dep't of Transp.,
247 N.J. Super. 62,
69 (l99l) (holding that Department of Transportation was immune
from liability under N.J.S.A. 59:4-5 for failing to replace
missing sign warning motorists of low overpass), certif. denied,
l30 N.J. l3 (l992); Johnson v. Township of Southampton, l
57 N.J.
Super. 5l8, 525 (holding municipality immune from liability under
N.J.S.A. 59:4-5 for failure to mark intersection partially
obstructed by trees and other vegetation), certif. denied,
77 N.J. 485 (l978); Aebi v. Monmouth County Highway Dep't, l
48 N.J.
Super. 430, 434 (l977) (holding county immune under N.J.S.A.
59:4-5 for failure to warn motorists "that the width of the road
way was being suddenly reduced to the width of the bridge").
In applying N.J.S.A. 59:4-5, our unifying principle has been
"to identify the cause of the accident" and then to ask if that
"identified cause or condition is one that the Legislature
intended to immunize." Weiss, supra, 128 N.J. at 380. I agree
with the Law Division that the true cause of this accident was
the failure to provide an ordinary traffic signal at the
intersection. As we stated in Weiss, supra, l28 N.J. at 385:
"When the absence of a traffic signal * * * is the true culprit,
government is immune." To hold a public entity liable for its
failure promptly to replace an ordinary traffic signal would
undermine the Legislature's policy judgment that a public entity
should be immune for an injury caused by its failure to provide a
stop sign. See Kolitch, supra, l00 N.J. at 496 ("[B]oth the
decision [to post a sign] and the act of implementation are one
and the same for the purposes of the [traffic-sign immunity].");
Smith, supra, 247 N.J. Super. at 69 (holding that "because there
is immunity for not posting a sign initially and for where the
sign is placed, immunity also exists for not replacing a missing
sign"). I agree.
Against the overwhelming evidence that the specifically-granted immunity of N.J.S.A. 59:4-5 applies, the majority nevertheless holds that N.J.S.A. 59:4-4, a liability provision, prevails. The Court does so by erroneously misintepreting the plain language of N.J.S.A. 59:4-4. That statute 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.
According to the statute, a public entity is liable only if it fails to provide an "emergency" traffic signal. N.J.S.A.
59:4-4 applies only to conditions that are "sudden, unexpected
[or] emergent." Spin Co. v. Maryland Casualty Co., l
36 N.J.
Super. 520, 524 (Law Div. l975); accord Weiss, supra, l28 N.J. at
383-84 (holding N.J.S.A. 59:4-4 inapplicable when "the danger
[is] enedemic, not emergent"). As the Appellate Division
correctly stated in Smith:
it would be incongruous indeed to hold that
there is immunity for failure to provide
ordinary traffic signals under N.J.S.A. 59:4-5 but by simply labeling an ordinary,
continuing and longstanding traffic condition
"an emergency," liability may be created for
failing to provide "emergency signals, signs,
markings or other devices." An "emergency"
means a sudden and unexpected condition, one
that is extraordinary.
An ordinary stop sign does not become an "emergency" signal simply because it once existed but is now absent from an intersection. Because stop signs are "ordinary" traffic signals, no liability may attach to the failure to provide or replace one. Nor do I believe that the conditions of this intersection at the time of the accident resembled a "trap." See N.J.S.A. 59:4-4, comment (stating that statute imposes liability "for the failure on the part of a public entity to provide an emergency warning signal or device when a condition exists constituting a `trap' to a person using a street or highway with due care"). This is an ordinary intersection in a rural county. Nothing in the record implies that this is a unique intersection. As we
stated in Weiss, supra, l28 N.J. at 384: "Whatever flaws may have
existed were not sudden, unexpected or emergent." Even the
"death trap" in Kolitch was not regarded as an emergency that
would necessitate the placement of warning signals. l00 N.J. at
497.
In the present case neither Pitman-Downer Road nor Mariner
Drive was obstructed. If the overgrown shrubbery on private
property created an obstacle, it was not one that would stop or
catch drivers unaware. Rather, as the testimony from deposition
witnesses indicated, any motorist attempting to traverse that
intersection would have been aware of the blockage of visibility
caused by the bushes. Stated differently, in the words of the
statute, the dangerous condition "would . . . be reasonably
apparent to, and would . . . have been anticipated by, a person
exercising due care." This Court previously made that very point
in the context of a snowstorm. We stated that "the duty to warn
addressed by N.J.S.A. 59:4-4, applied in the context of a
snowstorm, concerns only extraordinary conditions that are
qualitatively different from those conditions that would be
`reasonably apparent to' or `anticipated by' a careful motorist
driving in this snowstorm." Rochinsky, supra, ll0 N.J. at 4l6.
Only such extraordinary and qualitatively different conditions
can circumvent an immunity from liability otherwise specified by
the Act. Id. at 4l6-l7. No conditions of that sort were present
here, and therefore N.J.S.A. 59:4-4 does not apply.
Unfortunately, drivers do run stop signs. A reasonable
driver does not rely on another driver obeying a stop sign. More
importantly, the majority's reliance on a driver's knowledge of
the missing sign leads to the totally illogical approach that the
public entity's immunity depends on whether the driver is a
native or a stranger to the area. Here, Trancucci was an out-of-town motorist. Presumably, if she had been driving Previte's
truck and he had been driving her car, and the accident had
occurred, his heirs could not recover from the public entity,
because as an out-of-town motorist Trancucci could not have
relied on the missing stop sign. Nothing could do more violence
to the Legislature's intent that the public entity be immunized
than the majority's test for determining liability, which rests
solely on the untestable thoughts of the driver -- who, in most
cases, will be a party to the action.
The greatest failing, however, of the majority's holding that public entities may be liable for their failure to replace every missing stop sign depending on what the driver allegedly knew is the overwhelming burden it will place on public entities. The extraordinary burden that this circumvention of the Act will impose is evident from this record. First, the record contains no evidence that this intersection is unique or different from thousands of other intersections in New Jersey. As Steven Horwell, a traffic-maintenance supervisor for the County of
Gloucester, pointed out, in late l989 the Gloucester County road system contained more than ten-thousand stop signs. Of those ten thousand signs, approximately two-to-three-thousand stood at intersections in which a county road intersected another county road, but the remainder stood at intersections between a county road and either a state road or a municipal road. Accordingly, Supervisor Howell pointed out: "You have to remember every . . . municipal street that crosses, that's actually two signs. So there may only be five thousand municipal intersections on the county syste