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Pandya v. State2/28/2005
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 30, 2004
The appeals in these consolidated cases arise out of a horrific October 2000 accident on Route 7 in Jersey City that killed four persons: Rahul Patel (Rahul), the driver of a vehicle that crossed over into the oncoming traffic, and three of Rahul's four passengers. The surviving passenger, the estates of all of the deceased passengers, and their interested relatives (collectively, the Pandya plaintiffs) filed a complaint against the State of New Jersey and New Jersey Department of Transportation (collectively, DOT) and others who are not involved in the appeal. Rahul's estate filed a separate action against the DOT, and the matters were consolidated.
On April 15, 2003, the DOT filed a motion for summary judgment. The Pandya plaintiffs filed voluminous documentation in opposition and Rahul's estate filed a cross-motion seeking to strike the DOT's defense asserting immunity under N.J.S.A. 59:4-5. On July 3, 2003, the trial judge entered orders granting summary judgment in favor of the DOT and denying the cross motion. On August 5, 2003, the judge issued a written opinion on the motions and entered an amended final order on September 23, 2003.
The Pandya plaintiffs appealed in A-813-03T2, and the Rahul estate appealed in A-957-03T2; the appeals were subsequently consolidated. Because the Rahul estate has joined in the brief of the Pandya plaintiffs, we use"plaintiffs" to refer to both sets of plaintiffs, collectively, in this opinion.
We reverse and remand, because of the existence of a genuine issue of material fact precluding summary judgment with regard to the DOT's entitlement to immunity under the Tort Claims Act, N.J.S.A. 59:4-5.
The stretch of highway where the accident occurred is known as Route 7 in Jersey City (formerly known as Route 10 and sometimes referred to as Newark Avenue), just west of the Charlotte Circle and approaching the Wittpen Bridge over the Hackensack River. (We will sometimes refer to it as the"roadway.") The Charlotte Circle was within three-tenths of a mile of the Wittpen Bridge. The westbound portion of the roadway had a rightward curve with a rising grade, just prior to the beginning of the bridge elevation.
The State became the owner of the roadway in about 1929 and its width, grade, curvature, and curbing design were set forth in plans dated May 10, 1937, and approved by the State Highway Commissioner. Plans dated February 13, 1956, and May 31, 1973, showed the roadway, as built, as part of repaving or resurfacing projects, respectively, but no detail about the roadway appears from those documents in the record.
The record contains Plans C-2A, C-3A and C-4A, which are all dated February 4, 1998, and which showed the roadway with two westbound lanes as it existed prior to the accident involved here. Those February 1998 plans were drawn as part of a DOT project to work to reconstruct the Wittpen Bridge and to change the Charlotte Circle. The DOT planned to build a new bridge, and upon its completion, the old bridge would be demolished. The approach roadway would also need to be realigned. This construction was not yet underway as of October 2000. The record does not show, however, whether a plan was ever approved for the roadway that affirmatively embodied a design using two lanes of westbound travel through the curve. None of the drawings from 1937, P-5A, P-5B or P5C, showed two lanes of travel for the roadway. The DOT's legal liaison Patrick Weber believed that he had seen plans that showed the"striping plan" for that roadway, meaning how the lane markings on the roadway would be painted
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