ROBERT KOEHLER VS. MICHAEL SMITH (L-4693-15, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2414-18T4

ROBERT KOEHLER and
SUSAN KOEHLER,

Plaintiffs-Appellants/
Cross-Respondents,

v.

MICHAEL SMITH, ROB'S
COLLISION, DEWBERRY
ENGINEERS, INC., and
HNTB CORPORATION,

Defendants,

and

CREAMER SANZARI, a
Joint Venture,

Defendant-Respondent/
Cross-Appellant.

Argued telephonically September 16, 2020 –
Decided October 1, 2020

Before Judges Whipple and Rose.
 On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-4693-15.

Edward P. Capozzi argued the cause for
appellant/cross-respondent (Brach Eichler, LLC,
attorneys; Edward P. Capozzi, Jeremy Hylton and
Kristofer Petrie, on the briefs).

Thomas M. Licata argued the cause for
respondent/cross-appellant (Malapero Prisco Klauber
& Licata, LLP, attorneys; Melanie Rowan Quinn, on
the briefs).

PER CURIAM

In this automobile accident case, plaintiff Robert Koehler 1 appeals the

Law Division's summary judgment dismissal of his personal injury complaint

against defendant Creamer Sanzari, A Joint Venture. The crux of the issues

raised on appeal is whether defendant – a New Jersey Department of

Transportation (DOT) contractor performing ongoing work on the highway

beneath an overpass that was not marked with a low clearance sign – bears

liability for plaintiff's accident caused when a truck struck the overpass.

Plaintiff maintains the motion judge erroneously determined defendant was

entitled to traffic sign immunity under section 4-6 of the Tort Claims Act (TCA),

1
In our opinion we refer to Robert Koehler as plaintiff, although we recognize
Susan Koehler, his wife, also has filed a derivative claim for loss of consortium.

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N.J.S.A. 59:1-1 to 59:12-3, and defendant was not entitled to derivative

immunity because it had an independent duty to address the low-clearance sign.

Defendant cross-appeals, claiming the judge erroneously concluded defendant

was not entitled to design plan immunity under section 4-5 of the TCA. Having

considered the parties' arguments in light of the record and applicable legal

standards, we affirm the judge's order granting summary judgment to defendant.

Accordingly, we need not reach the issues raised in defendant's cross-appeal.

I.

We review the trial court's grant of summary judgment de novo. Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,

199 (2016). Employing the same standard the trial court uses, ibid., we review

the record to determine whether there are material factual disputes and, if not,

whether the undisputed facts viewed in the light most favorable to plaintiff

nonetheless entitle defendant to judgment as a matter of law, see Brill v.

Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995); R.

4:46-2(c).

The facts are essentially undisputed. The accident occurred on March 12,

2014 on Route 3 in Rutherford near the Ridge Road overpass, which was located

in a construction zone. Traffic was flowing normally, when the boom of a

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bucket truck – that was in tow – struck the overpass, flew off, hit the roof of

plaintiff's car and entered the sunroof, causing plaintiff's accident. 2

Pursuant to its contract with the DOT, defendant was the general

contractor for a multi-year road-improvement project on Route 3, which

included the Ridge Road overpass. The engineering plans and specifications for

the overpass involved removing the concrete encasement from the bottom of the

beams and widening the roadway beneath the overpass. The DOT hired

Dewberry Engineers, Inc., and HNTB Corporation as design engineers on the

project to widen the roadway, add acceleration and deceleration lanes, and

perform work on seven bridges over a span of several years.3

The contract required an on-site traffic control coordinator, whose

responsibilities included traffic control operations on the construction site for

changing construction conditions, and the setup and removal of temporary

2
The tow truck was driven by Michael Smith and owned by Rob's Collision.
Having settled their claims with plaintiff, both defendants were dismissed from
the litigation in January 2018 and are not parties to this appeal.
3
Following their separate settlements with plaintiff, defendants Dewberry and
HNTB were dismissed from the litigation in May 2018; they are not parties to
this appeal.

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traffic signs and markers. The DOT and its engineer were responsible for

deciding which lanes would close when work was performed on the project.

Built approximately forty years ago, the vertical clearance of the Ridge

Road overpass was thirteen feet, nine inches. Since 1986, overpasses and

bridges in New Jersey with clearances of fewer than fourteen feet, six inches are

required by statute to "have the maximum clearance marked or posted thereon,"

N.J.S.A. 27:5G-1(a), and warning signs, indicating the maximum clearance,

"posted at the last safe exit or detour preceding the bridge or overpass," N.J.S.A.

27:5G-1(b). No such marking or sign warned drivers of the low-vertical

clearance for the Ridge Road overpass.

The design plan for the project, drafted by the DOT Bureau of Structural

Engineering, clearly indicated a minimal vertical clearance of thirteen feet, nine

inches for the Ridge Road overpass, but did not propose the placement of

signage. Nor did the project involve changes to the long-standing height or

clearance of the overpass. Six months before plaintiff's accident, a similar

accident had occurred at the same overpass, when the boom of a fully-extended

forklift, towed on a flatbed truck, struck the overpass.

When deposed, defendant's project superintendent, Sean Desmet,

indicated he was unaware of the required height for the Ridge Road overpass

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and bridge; he acknowledged there were no clearance markings on the overpass

to warn drivers of the clearance. But, Desmet said he knew the maximum height

of a legal truck load was thirteen feet, six inches. He stated defendant "didn't

do anything other than what was detailed in [its] plans and specs," and he did

not believe defendant was required to do anything to ensure vehicles did not

strike the overpass. The plans only indicated the overpass clearance in one spot

– the right shoulder – and that clearance was thirteen feet, nine inches. After

plaintiff's accident, DOT placed clearance signage on all four lanes of the Ridge

Road overpass. At that point, Desmet learned there were different clearances in

various areas of the overpass.

Desmet asserted that because he was not a traffic or design engineer, he

was not authorized to erect a sign himself. Nor was anyone in defendant's crew

authorized to set up temporary signage. Desmet only was responsible fo r

building what was designed, and if an engineer instructed him to place a sign on

something, he would do so. Desmet testified there were no signs on any of the

other bridges within the project limit.

According to plaintiff's engineering expert, Richard M. Balgowan, P.E.,

the design engineer is responsible for developing the temporary traffic pl ans

based on the federal Manual on Uniform Traffic Control Devices (MUTCD).

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Balgowan acknowledged a contractor reviewing plans during the bid process

would not undertake the same engineering analysis as the design engineer.

Instead, the contractor only would analyze a plan for constructability; the DOT

or its engineering consultant would undertake design. According to Balgowan,

"the contractors, specifically [are] looking at constructability issues, things

missing from the plans, things that should be added to the plans." Regarding

temporary traffic plans, Balgowan stated HNTB prepared the traffic control

plans and was "responsible for putting together the temporary traffic control

plans, making sure that the proper signage was used, those types of thing s."

Balgowan acknowledged the design engineers should have addressed the

low clearance of the overpass but opined that because defendant was on site

daily, it should have brought the clearance issue to the engineer's attention.

Balgowan nonetheless conceded the design engineer bore the primary

responsibility for ensuring the plans and specifications were correct. Because

the project's plans noted there was a thirteen-feet, nine-inch clearance, anyone

reviewing or developing the plans for moving traffic should "do something to

address the inadequate vertical underclearance."

Balgowan opined the DOT and its design engineer, who "made the entry

'[thirteen] feet, nine inches' in the plans" were, therefore, aware of the Ridge

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Road overpass's low clearance. Balgowan conceded that discussions regarding

the vertical clearance of the bridge commenced in 2004, and the DOT decided

not to install a low-clearance warning sign "for several years." Nonetheless,

Balgowan asserted if a contractor were uncomfortable with the manner in which

the plan was established, the contractor could address signage on its own.

Referring to the issue as a "gray area," Balgowan suggested it "behooves [the

contractor], the right thing to do, [is to] consult with the [r]esident [e]ngineer on

the job, [and] say, 'Here's what I see, here's what I would like to do.'" Balgowan

believed the contractor was authorized "to attach a sign to a bridge. That's

something [it] could do. [The contractor] would absolutely talk to the State

about getting approval to do so."

However, Balgowan later acknowledged: "The only thing I would

question [would be whether] the contractor ha[d] the authority to put a sign

directly on a bridge? And I don't know that answer." Balgowan added that he

would not himself do so without seeking formal approval. Balgowan did not

know whether the DOT's failure to erect a low-clearance sign, despite its

awareness that the bridge was too low, was intentional or an oversight.

Balgowan also did not know whether the design engineer considered

placing a warning sign at the exit before the overpass, or whether such a sign

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was intentionally omitted from the temporary traffic plans. He conceded that

the design engineer's plans mentioned concrete was missing from previous

vehicular strikes, and a permanent low-clearance sign should have been erected

well before any work on the project began. Balgowan also agreed that a low-

clearance sign was not included in the plans.

At the close of discovery, summary judgment motions were cross-filed

and the judge considered oral argument on January 4, 2019 before granting

defendant's motion, thereby dismissing plaintiff's complaint and all crossclaims.

In a cogent statement of reasons accompanying a January 9, 2019 order, the

motion judge squarely addressed the parties' contentions and the legal principles

raised, concluding defendant: (1) failed to demonstrate design or plan immunity

applied as a matter of law under N.J.S.A. 59:4-64; (2) was entitled to traffic sign

immunity under N.J.S.A. 59:4-55; (3) and owed plaintiff no independent duty to

address the low-vertical clearance.

4
N.J.S.A. 59:4-6 provides immunity "for an injury caused by the plan or design
of public property . . . where such plan or design has been approved in advance
of the construction" by a public entity or public employee.
5
Under N.J.S.A. 59:4-5, "[n]either a public entity nor a public employee is
liable . . . for an injury caused by the failure to provide ordinary traffic signals,
signs, markings or other similar devices."
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 Initially, the motion judge recognized "[a]s the general contractor for the

project, [defendant wa]s entitled to derivative immunity for any immunity that

would attach to the public entity." The judge also noted derivative immunity is

an affirmative defense which must be proven by defendant. With those

principles in view, the judge found defendant "failed to carry its burden that the

inclusion or non-inclusion of low[-]clearance signs to warn traffic was

considered or addressed in any fashion in the design and plans." Finding a

material issue of fact therefore existed, the judge rejected defendant's argument

that it was entitled to design and plan immunity.

The motion judge reached a different conclusion regarding defendant's

claim of traffic sign immunity. In doing so, the judge noted the TCA's

"[i]mmunity is only granted for failure to place ordinary signs." Analyzing our

decisions in Smith v. State, Department of Transportation, 247 N.J. Super. 62

(App. Div. 1991), and Aebi v. Monmouth County Highway Department, 148

N.J. Super. 430 (App. Div. 1977), the judge rejected plaintiff's contention that

the low clearance of the Ridge Road overpass constituted an emergency

condition that would otherwise warrant an emergency warning sign under

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N.J.S.A. 59:4-4.6 In reaching his decision, the judge dismissed plaintiff's

argument that the previous bridge strike "transformed this case into one where

a sudden emergency was created," thereby imposing a duty on defendant "to

place temporary emergency warning signs notifying [drivers] of low clearance."

Quoting our decision in Smith, the judge instead observed:

[I]t 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 long[-]standing 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.

[247 N.J. Super. at 71-72 (citations omitted).]

Finding "[t]he vertical clearance [had remained] unchanged for many years," the

judge concluded the condition "was not . . . sudden and unexpected" and as such,

it did not constitute an "emergency" as defined by case law.

6
N.J.S.A. 59:4-4 imposes liability on a public entity:

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.
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 Finally, the motion judge rejected plaintiff's reliance on our Supreme

Court's decision in Vanchieri v. New Jersey Sports and Exposition Authority,

104 N.J. 80 (1986), to support his argument that defendant had an independent

duty to address the low-vertical clearance in light of the previous bridge strike.

Instead, the judge quoted the principles espoused in Vanchieri, which

underscore contractor immunity for a public entity's specifications over which

the contractor has no control: "It would be fundamentally unfair to hold a

contractor liable in that instance for injury caused by defective plans, at least in

the absence of a blatant, obvious danger that the contractor should have brought

to the attention of the public entity." Id. at 86.

Finding it was "undisputed that the DOT was aware of the vertical

clearance height as well as the earlier bridge strike" and dismissing plaintiff's

contention that the role of defendant's traffic control supervisor included the

establishment of a temporary traffic pattern to prevent accidents at the Ridge

Road overpass, the judge determined defendant owed plaintiff no independent

duty. In reaching his conclusion, the judge noted the DOT had "express

knowledge" of the long-standing condition, which it chose not to address.

Accordingly, the condition was not a temporary hazardous condition that might

otherwise require action on the part of defendant. This appeal followed.

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 II.

On appeal, plaintiff reprises his arguments that defendant was

independently negligent and not entitled to traffic sign immunity. Plaintiff now

claims the judge's rejection of plan or design immunity under N.J.S.A. 59:4-6

was inconsistent with his determination that defendant was not independently

negligent. We have considered plaintiff's contentions in light of our de novo

review of the record and applicable legal principles, and conclude they lack

sufficient merit to warrant extended discussion in this written opinion. R. 2:11-

3(e)(1)(E). We affirm substantially for the sound reasons expressed by the

motion judge, adding the following comments.

A.

In his first point on appeal, plaintiff claims a genuine issue of fact

precluded summary judgment on defendant's independent negligence because

defendant failed to retain a competing expert. Accordingly, plaintiff claimed

Balgowan's opinions "were completely unchallenged evidentiarily." Those

opinions included defendant's failures to: "install and enforce temporary traffic

control and safety measures"; "install appropriate advance warning signs and

appropriate low[-]bridge clearance signs"; "comply with the DOT's plans and

specifications"; and "comply with N.J.S.A. . . . 29:5G-1." Plaintiff again asserts

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the contract explicitly required the designation of a traffic control coordinator,

who was responsible for implementing and maintaining all traffic operation s on

defendant's behalf. Plaintiff claims those operations included immediately

identifying and correcting traffic control deficiencies and providing traffic

control devices under the MUTCD.

But, plaintiff's contentions ignore Balgowan's deposition testimony,

acknowledging, for example: it was the design engineer's primary responsibility

to ascertain that the project's plans and specifications are correct; the issue

concerning the contractor's responsibility to attach a sign to the bridge was a

"gray area," thereby questioning whether the contractor was authorized to affix

a low-clearance sign to the bridge; and the requisite signs should have been

addressed before the project began. Further, there is no dispute that the traffic

control patterns were designed by the DOT and its engineers, and defendant

carried out those patterns according to the plans and specifications.

Moreover, the contract setting forth the duties of temporary traffic control

relates to temporary changes in traffic patterns caused by construction; not

permanent and pre-established traffic conditions, such as the overpass height at

issue and the lack of signage. Although the plans provided for the removal of

concrete from the bridge, the record is devoid of any evidence suggesting that

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removal involved adjustments to the bridge's height or the overpass's cl earance.

Notably, the plans document the Ridge Road overpass's clearance as thirteen

feet, nine inches, but do not indicate that height fails to meet the statutory

requirements or is otherwise non-standard. Further, Balgowan acknowledged

the milling and paving performed by defendant underneath the bridge would not

have changed the clearance.

In sum, because defendant had no duty to affix signage to the Ridge Road

overpass or address the traffic flow on Route 3, the judge properly granted

summary judgment regardless of whether defendant enjoyed traffic sign

immunity under the TCA.

B.

Nonetheless, we reject plaintiff's contention that the motion judge's

interpretation of "emergency" was "limited" and inapplicable here, where the

condition was long-standing. Plaintiff claims the judge failed to consider the

condition was not "reasonably apparent to a careful and prudent driver."

Plaintiff's argument misapprehends the judge's decision.

Generally, a public entity may be held liable for its failure to pro vide

emergency signals when the dangerous condition is temporary. See Rochinsky

v. State, Dep't of Transp., 110 N.J. 399, 416 (1988) (stating the duty to warn

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under N.J.S.A. 59:4-4 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 a snowstorm," such as a stalled snowplow in traffic or the creation of

an artificial snowbank making a highway impassable); Meta v. Twp. of Cherry

Hill, 152 N.J. Super. 228, 233-34 (App. Div. 1977) (finding emergency signals

and signs were warranted for icy conditions when the public entity was aware

of the condition several hours before the plaintiff's accident).

Emergency situations have not been found where – as the motion judge

found here – under the plain meaning of "emergency," there was no indication

of "a sudden or unexpected occurrence or condition" imposing a duty on the

public entity, nor an emergent situation that held a high degree of risk for the

public. See Spin Co. v. Maryland Cas. Co., 136 N.J. Super. 520, 523-25 (Law

Div. 1975). We agree with the judge that the Ridge Road overpass's lack of

clearance signage is not the type of sudden and unanticipated situation that

would impose liability on a public entity, and as such, the judge correctly

determined defendant was entitled to traffic sign immunity.

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 C.

Lastly, plaintiff claims the motion judge's decision that defendant was not

entitled to plan or design immunity – although correct – conflicts with the

judge's determination that defendant was not independently negligent. Plaintiff

recognizes the record was devoid of any evidence that low-clearance signs were

contemplated in the plans. Plaintiff claims that because the design plans were

incorporated in the contract, the judge's decisions are inconsistent.

As stated, immunity under the TCA is an affirmative defense. The motion

judge determined defendant did not meet its burden to demonstrate the low-

clearance sign was contemplated in the plans and a discretionary decision was

made to omit signage, which would have entitled defendant to plan or design

immunity. Demonstrating defendant was liable under an independent

negligence theory, however, is plaintiff's burden. Again, the record does not

contain any competent evidence that defendant was responsible to erect signage

on the Ridge Road overpass or otherwise warn the public the bridge did not meet

the statutory minimum clearance. Because both theories of liability required

different burdens of proof, the motion judge's rulings were not in discord.

Affirmed.

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