dissenting in part.
Part III of the majority opinion, with its grant of leave to plaintiffs to file an amended complaint, loses me. It is nothing *431short of a rescue job, a heroic effort to salvage plaintiffs’ case by allowing them to start all ovér again, by way of amended complaint, a case now four years old arising out of a February 1983 occurrence. The resort to N.J.S.A. 59:4-4 is nothing less than an invention of the Court. That section of the Tort Claims Act is nowhere adverted to at any stage of the proceedings— not at trial, not in the Appellate Division, not in this Court. The briefs may be searched in vain for any citation to that statute.
The Court therefore lends its authority to making an entirely new case for plaintiffs. That may be good for them but it is manifestly unfair to defendant Department of Transportation, to say nothing of the trial judge. I do not perceive my obligation to see that justice is done as constituting a roving commission to inject whenever needed a transfusion of life-giving serum into an expired case.
For the reasons stated in Parts I and II of the Court’s opinion I would reverse and remand to the Law Division for reinstatement of the judgment in favor of defendant Department of Transportation.
Justices POLLOCK and GARIBALDI join in this opinion.
For affirmance as to part II —Chief Justice WILENTZ and Justice HANDLER—2.
For reversal as to part II—Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN—5.
For remand and amending complaint as to part III —Chief Justice WILENTZ and Justices HANDLER, O’HEARN and STEIN—4.
For remand and reinstatement of judgment as to part III —Justices CLIFFORD, POLLOCK and GARIBALDI—3.