NOT FOR PUBLICATION WITHOUT THE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-0616-15T1
JOAO ROCHA,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY and
NEW JERSEY DEPARTMENT OF
TRANSPORTATION, their
agents, servants and/or
employees,
Defendants-Respondents,
and
WAN-RU WU,
Defendant.
_________________________________
Argued May 8, 2017 – Decided June 2, 2017
Before Judges Haas and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-3348-
13.
Richard A. Dunne argued the cause for
appellant.
Nicole T. Castiglione, Deputy Attorney
General, argued the cause for respondents
(Christopher S. Porrino, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel; Ms. Castiglione, on the
brief).
PER CURIAM
Plaintiff Joao Rocha appeals from the trial court's August
28, 2015 order granting summary judgment to defendants, State of
New Jersey and New Jersey Department of Transportation ("NJDOT").
We affirm.
I.
We derive the facts from the summary judgment record. This
matter arises out of a tragic motor vehicle accident occurring on
May 9, 2011 at approximately 10:00 p.m. in the northbound express
lanes of U.S. Routes 1 and 9 in Newark, New Jersey. Defendant
Wan-Ru Wu was driving his sport utility vehicle from New York City
to a hotel in Newark. Accompanying Wu were several passengers,
one of whom was providing directions. Wu had never been to Newark
before, was unfamiliar with Routes 1 and 9, and did not know where
the hotel was located.
After determining that he was lost, Wu stopped the car at a
gas station along Routes 1 and 9 for directions. Wu then proceeded
on Routes 1 and 9 South, but passed the hotel. Wu then made a U-
turn at a traffic light and proceeded on Routes 1 and 9 North.
Still uncertain of where he was going, Wu turned onto a side street
and turned back onto Routes 1 and 9 South. After driving some
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distance, he took an overpass to reenter the local lanes of Routes
1 and 9 North. After determining that he had once again missed
the hotel, Wu pulled his vehicle over to the right shoulder. Wu
then proceeded to cross the local lanes, drive over a curb and
concrete island that separated the local lanes from the express
lanes of Routes 1 and 9 North, and proceeded southbound on the
express lanes of Routes 1 and 9 North. Wu continued driving in
the wrong direction for twenty-eight seconds before colliding
head-on with plaintiff's vehicle that was heading northbound.
Wu testified that he was tired, confused, and frustrated at
the time of collision. He knew it was improper to drive over the
curb and concrete island, but did so anyway to save time getting
to the hotel. He presumed that his sport utility vehicle could
traverse the curb and island easily because it was so low.
Plaintiff suffered serious injuries from the accident. He
brought action against Wu, the State, and NJDOT, alleging they
were negligent. Plaintiff settled his claims against Wu.
Plaintiff claims that the State and NJDOT are liable under the New
Jersey Tort Claims Act ("the Act"), N.J.S.A. 59:1-1 to 12-3, for
an alleged dangerous condition created by the concrete island and
adjoining three-and-one-half-inch curb, and for failing to warn
drivers of the dangers they would confront if they attempted to
3 A-0616-15T1
mount, cross, or make a U-turn over the curbing separating the
local and express lanes of Routes 1 and 9.
The local and express lanes of Routes 1 and 9 are separated
by a concrete island consisting of two vertical curbs on each side
with a span of concrete in between. The most recent set of design
plans approved by the Office of the State Highway Engineer required
a height of four inches. On the date of the incident, however,
the vertical curbing measured three-and-a-half inches.
In 2010, the local lanes of Routes 1 and 9 North adjacent to
the vertical curb were milled and resurfaced. This increased the
height of the roadway by one-half-inch, thereby decreasing the
exposed face of the vertical curb from four inches to three-and-
a-half inches. However, the milling and resurfacing did not alter
or remove the vertical curb itself.
NJDOT uses two national publications issued by the American
Association of State Highway and Transportation Officials
("AASHTO") as a source when formulating its own guidelines on curb
configurations. One is AASHTO's publication, Geometric Design of
Highways and Streets (5th ed. 2004). Plaintiff relies on the
following, somewhat misleadingly excerpted, language from that
publication: "Vertical curbs may be either vertical or nearly
vertical and are intended to discourage vehicles from leaving the
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roadway . . . [and] they range from 150 to 200 mm [6 to 8 in] in
height." Id. at 320. AASHTO actually recommends:
Vertical curbs may be either vertical or
nearly vertical and are intended to discourage
vehicles from leaving the roadway. As shown
in Exhibit 4-6A, they range from 150 to 200mm
[6 to 8 in] in height. Vertical curbs should
not be used along freeways or other high-speed
roadways because an out-of-control vehicle may
overturn or become airborne as a result of an
impact with such a curb. Since curbs are not
adequate to prevent a vehicle from leaving the
roadway, a suitable barrier should be provided
where redirection of vehicles is needed.
[Ibid. (emphasis added).]
As we discuss, infra, this caveat regarding freeways and high-
speed roadways is an important aspect of the AASHTO recommendation
in the context of this case.
The second is AASHTO's publication, Roadside Design Guide (3d
ed. 2006). It contains the following similar relevant language
regarding curbs:
Vertical curbs are defined as those having a
vertical or nearly vertical traffic face 150
mm [6 in.] or higher. These are intended to
discourage motorists from deliberately
leaving the roadway.
. . . .
In general, curbs are not desirable along
high-speed roadways. If a vehicle is spinning
or slipping sideways as it leaves the roadway,
wheel contact with a curb could cause it to
trip and overturn. Under other impact
conditions, a vehicle may become airborne,
5 A-0616-15T1
which may result in loss of control by the
motorist. The distance over which a vehicle
may be airborne and height above (or below)
normal bumper height attained after striking
a curb may become critical if secondary
crashes occur with traffic barriers or other
roadside appurtenances.
[Id. § 3.4.1 at 3-14.]
NJDOT publishes its own roadway design manual (the "Design
Manual"). The Design Manual in effect at the time of the
resurfacing and milling project provided:
When resurfacing adjacent to curb, the curb
should not be removed unless it is
deteriorated or the curb face will be reduced
to less than 3 inches. A curb face less than
3 inches is permissible, provided drainage
calculations indicate the depth of flow in the
gutter does not exceed the remaining curb
reveal.
[Id. § 5.6.4, at 5-9 to 5-10.]
With regard to curb height, the Design Manual in effect at
the time of the accident stated that for new installations of
vertical curb, the curb height shall not exceed four inches for
posted speeds greater than forty miles per hour. Id. at 5-9. For
posted speeds less than or equal to forty miles per hour, the
desirable curb height is four inches. Ibid.
The Design Manual also provides:
New installation of vertical curb shall not
be constructed on freeways and Interstate
highways; and are considered undesirable on
other high-speed arterials. When accidently
6 A-0616-15T1
struck at high speeds, it is difficult for the
operator to retain control of the vehicle. In
addition, most vertical curbs are not adequate
to prevent a vehicle from leaving the roadway.
[Id. § 5.6.2 at 5-9.]
Following the completion of discovery, the State and NJDOT
moved for summary judgment on several grounds. First, they
asserted design immunity under N.J.S.A. 59:4-6(a). Second, they
contended that the curb and concrete island did not constitute a
"dangerous condition." N.J.S.A. 59:4-2(a). Third, they contended
that their conduct was not "palpably unreasonable." N.J.S.A.
59:4-2.
After setting forth the operative facts in detail, the judge
concluded that there were no genuine issues of material fact in
dispute. The judge also described the legislative scheme and
pertinent liability and immunity provisions of the Act. After
reciting the arguments of counsel, the judge engaged in the
following analysis in granting summary judgment to the State and
NJDOT in her bench ruling:
And giving the plaintiff the benefit of
all the inferences the only evidence is that
the height of the curb was effectively
decreased as a result of the roadway
resurfacing which amounts to a half an inch.
And that this defect was contemplated by the
designers of state roadways and that the
Roadway Design Manual provides that a height
of 3.5 inches under these circumstances is
acceptable.
7 A-0616-15T1
And this court finds that there are no
issues of fact in dispute that would preclude
the granting of summary judgment. I'm
persuaded by defendant's arguments. Summary
judgment is, therefore, granted.
II.
Our review of a ruling on summary judgment is de novo,
applying the same legal standards as the trial court. Nicholas
v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment is
appropriate where "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, 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." R. 4:46-2(c). Because
the trial court granted summary judgment to the State and NJDOT,
we must consider the facts in a light most favorable to plaintiff.
"The inquiry is 'whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.'"
Liberty Surplus Ins. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-
46 (2007) (quoting Brill v. Guardian Life Ins., 142 N.J. 520, 536
(1995)).
8 A-0616-15T1
A.
Public entity liability is restricted under the Act. Polzo
v. Cnty of Essex, 209 N.J. 51, 55 (2012). Generally, a public
entity is "immune from tort liability unless there is a specific
statutory provision imposing liability." Kahrar v. Borough of
Wallington, 171 N.J. 3, 10 (2012); see Kain v. Gloucester City,
436 N.J. Super. 466, 473 (App. Div. 2014); N.J.S.A. 59:1-2 and :2-
1; see Manna v. State, 129 N.J. 341, 347 (1992) (recognizing that
immunity is the dominant consideration of the Act). "The public
entity bears the burden of proof for establishing immunity." Kain,
supra, 436 N.J. Super. at 473 (citing Bligen v. Jersey City Hous.
Auth., 131 N.J. 124, 128 (1993)).
"Section 59:4-2 of the Act creates public liability for
dangerous conditions on public property." Manna, supra, 129 N.J.
at 347. The Act defines a "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." N.J.S.A. 59:4-1(a); see
Garrison v. Twp. of Middletown, 154 N.J. 282, 286-87 (1998); see
also Polzo, supra, 209 N.J. at 72. A public entity is liable for
a dangerous condition on 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
9 A-0616-15T1
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; or
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.
Nothing 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.
[N.J.S.A. 59:4-2.]
Thus, for liability to attach, a plaintiff must establish:
1) that a "dangerous condition" existed on the property at the
time of the injury; 2) that the dangerous condition proximately
caused the injury; 3) that the dangerous condition "created a
reasonably foreseeable risk of the kind of injury which was
incurred," 4) that either a) the dangerous condition was caused
by a negligent employee or, alternatively, b) the public entity
knew or should have known about the condition, and 5) that the
entity's conduct was "palpably unreasonable." Vincitore v. Sports
10 A-0616-15T1
& Expo. Auth., 169 N.J. 119, 125 (2001); see also Posey ex rel.
v. Bordentown Sewerage Auth., 171 N.J. 172, 188 (2002).
Plaintiff contends that a reasonable jury could find that the
three-and-a-half inch curb height constituted a dangerous
condition. We disagree.
Plaintiff specifically claims that the failure to maintain
the originally designed curb height was a catalyst in bringing
about the collision. He relies upon the fact that NJDOT engineers
approved the original height for the purpose of discouraging
drivers from being tempted to mount the curbing the same manner
as Wu maneuvered his vehicle on the evening of May 9, 2011. To
be sure, the vertical curbs were designed to delineate the edge
of the roadway and discourage motorists from leaving the roadway
and crossing from the express lanes to the local lanes and vice
versa. However, those facts are not controlling. Instead, the
following critical facts are not in dispute.
The curb was constructed in accordance with the design
specifications to provide a four-inch vertical face. It was not
subsequently modified or removed. While the milling and repaving
project slightly elevated surface of the roadway by one-half inch,
the curbing itself was not altered. The physical condition of the
curb was not defective. There is no evidence that it had
deteriorated through weathering or spalling.
11 A-0616-15T1
Plaintiff's contention that the vertical curb face should
have been six to eight inches high is without merit. His reliance
upon the recommendation in the AASHTO guidelines for six to eight
inch curb faces is misplaced. The express lanes of Routes 1 and
9 are a high-speed freeway. As we have already noted, the AASHTO
guidelines plainly state that curbs are contraindicated for
freeways and other high-speed roadways, stating:
Vertical curbs should not be used along
freeways or other high-speed roadways because
an out-of-control vehicle may overturn or
become airborne as a result of an impact with
such a curb. Since curbs are not adequate to
prevent a vehicle from leaving the roadway, a
suitable barrier should be provided where
redirection of vehicles is needed.
[Geometric Design of Highways and Streets,
supra, at 320.]
The NJDOT Design Manual governs the design and construction
of all roadway curbs in New Jersey. Design Manual, supra, § 5.6.2
at 5-9. It also states that new installation of vertical curbs
shall not be constructed on freeways and are considered undesirable
on other high-speed arterials. The Design Manual prohibits curb
heights exceeding four inches. It expressly permits curb heights
measuring between three to four inches. In fact, according to the
Design Manual, vertical curbs measuring less than three inches are
permissible when drainage is not an issue.
12 A-0616-15T1
Both the original four-inch vertical face and the reduced
three-and-one-half vertical face met applicable guidelines and
standards. The slight one-half-inch reduction of the vertical
curb face did not render it dangerous. Additionally, curbs are
neither designed nor adequate to prevent a vehicle from leaving
the roadway, particularly when the driver is intentionally driving
over them in a sport utility vehicle.
We acknowledge that whether a property is in a "dangerous
condition" is generally a question for the finder of fact.
Vincitore, supra, 169 N.J. at 123; see also Daniel v. State, Dept.
of Transp., 239 N.J. Super. 563, 573 (App. Div.), cert. denied,
122 N.J. 325 (1990). Nevertheless, summary judgment is appropriate
if the evidence "'is so one-sided that defendant must prevail as
a matter of law.'" Liberty Surplus Ins., supra, 189 N.J. at 446
(quoting Brill, supra, 142 N.J. at 536).
The term "dangerous condition" refers only to "the physical
condition of the property itself and not to activities on the
property." Levin v. Cnty. of Salem, 133 N.J. 35 (1993) (quoting
Sharra v. Atlantic City, 199 N.J. Super. 535, 540 (App. Div. 1985).
The physical condition of the property itself "must be defective
for there to be recovery against a public entity." Lopez v. N.J.
Transit, 295 N.J. Super. 196, 202 (App. Div. 1996). Here, the
physical condition of the property was not defective or dangerous.
13 A-0616-15T1
The curb itself did not "create[] a substantial risk injury."
N.J.S.A. 59:4-1(a). Instead, the singular apparent cause of the
accident was the dangerous driving engaged in by Wu.
"[W]e have consistently rejected the contention that
dangerous activities of other persons on public property, even if
reasonably foreseeable, establish a dangerous condition of the
property itself." Ross v. Moore, 221 N.J. Super. 1, 5 (App. Div.
1987) (citing Sharra, supra, 199 N.J. Super. at 540-41; Setrin v.
Glassboro State Coll., 136 N.J. Super. 329, 333-35 (App. Div.
1975)). Plaintiff has not demonstrated that the curb posed an
unreasonable risk of harm even in combination with the acts of
third parties. See Speaks v. Jersey City Hous. Auth., 193 N.J.
Super. 405, 412 (App. Div. 1984).
Plaintiff failed to produce any objective evidence
demonstrating that the three-and-a-half inch vertical curb face
constituted a dangerous condition. Given this record, no
reasonable factfinder could conclude that the property was in a
dangerous condition. Therefore, dismissal of plaintiff's claims
against the State and NJDOT was appropriate
B.
In light of our ruling that three-and-one-half-inch curb
height did not constitute a dangerous condition, we need not
address plaintiff's claim that the conduct of the State and NJDOT
14 A-0616-15T1
was "palpably unreasonable," since that issue only arises when
there is an underlying dangerous condition. See N.J.S.A. 59:4-2
(public entity not liable for a dangerous condition if its conduct
was not palpably unreasonable).
Nor need we address plaintiff's claim that defendants are
liable for failing to provide adequate warning of a non-existent
dangerous condition. See N.J.S.A. 59:4-4 (liability for failure
to provide emergency warning signals to warn of a dangerous
condition). In any event, the State and NJDOT are immune for
failure to warn of the alleged hazardous nature of the curb. See
Kolitch v. Lindedahl, 100 N.J. 485, 496 (1985) (State not liable
for failure to warn of the hazardous nature of roadway curve)
(citing Aebi v. Monmouth Cnty. Highway Dept., 148 N.J. Super. 430
(App. Div. 1977)); N.J.S.A. 59:4-5 (immunity for failure to provide
ordinary traffic signals).
C.
The State and NJDOT also contend that they are entitled to
the plan or design immunity provided by the Act for a claim based
on the alleged dangerous condition. N.J.S.A. 59:4-6(a) provides:
Neither the public entity nor a public
employee is liable under this chapter for an
injury caused by the plan or design of public
property, either in its original construction
or any improvement thereto, where such plan
or design has been approved in advance of the
construction or improvement by the Legislature
15 A-0616-15T1
or the governing body of a public entity or
some other body or a public employee
exercising discretionary authority to give
such approval or where such plan or design is
prepared in conformity with standards
previously so approved.
[N.J.S.A. 59:4-6(a).]
Plaintiff argues summary judgment based on plan or design
immunity was inappropriate because the three-and-a-half inch curb
did not strictly conform to the height approved in the original
design, thereby precluding immunity under N.J.S.A. 59:4-6(a).
Because we hold that the vertical curb and concrete island
did not constitute a dangerous condition within the meaning of the
Act, we need not decide the discrete issue of whether the State
and NJDOT are immune from liability for the plan or design of the
original four-inch curb height, and the construction of the curb
and roadway in conformity with that plan and design. We also need
not address whether the one-half-inch reduction in the curb height
that resulted from the repaving abrogated any applicable plan or
design immunity in this matter.
D.
Plaintiff also contends that the motion judge failed to set
forth adequate findings of fact and conclusions of law in her
ruling. Regardless of the alleged incompleteness of the motion
judge's oral analysis, we are satisfied that the motion record and
16 A-0616-15T1
the governing case law clearly support the judge's entry of summary
judgment. See Isko v. Planning Bd. of Livingston, 51 N.J. 162,
175 (1968).
Affirmed.
17 A-0616-15T1