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Pandya v. State2/28/2005
f the accident.
Because the record conveyed no recent"geometric or operational changes" on the roadway for a significant period of time before the accident, Kuperstein opined, with a reasonable degree of engineering certainty, that"this dangerous condition would have also existed for a notable, and noticeable, period of time, and its existence should have been noticed." In his view, a dangerous condition existed on the roadway"at, and before the occurrence of the accident" as a result of"the improper, and/or incomplete, maintenance of the roadway, and/or its lack of being built or constructed in conformance with an approved plan or design." He opined further that Rahul's accident was directly or proximately caused by"the condition of the roadway, and its associated traffic control and guidance features (i.e. its improper or unsafe condition, and the lack of, or insufficient or improper, configuration and/or maintenance of same)." In his view,"proper positive guidance and maintenance would have assisted Rahul Patel in safely negotiating the roadway and remaining in his designated lane of travel."
In Kuperstein's March 10, 2003, deposition, he elaborated that when Rahul lost control of his vehicle, it was caused by" he curbs, the curb sides, the pavement markings, any sort of roadway markings associated with the pavement, and perhaps signs." The"riding surface" of the road also may have been a factor. When asked whether"the curvature to the right around the circle was too sharp for Mr. Patel to control his car," Kuperstein responded:
vehicle traveling at the speed limit, that vehicle would not be exceeding, this term, the critical speed of that curve, but that curve is definitely a fact, in that speed with a reasonable degree of engineering certainty of Mr. Patel losing control of his vehicle.
Kuperstein defined as possible contributors to Rahul's loss of control the"debris and the partial obscurity of the curb on the right," the"indistinct identification of the left side delineation, in the context of this particular curve radius of its given radius," and"the lack of other traffic control devices" such as those on the 1984-87 drawing. Kuperstein opined that one lane would have been safer through the curve, but he left as an open question whether it was appropriate to return to a two-lane configuration over the bridge. The Luz accident was the only other crossover accident on the roadway of which Kuperstein was aware.
Kuperstein prepared a May 8, 2003, certification in response to the DOT's summary judgment motion in which he emphasized that all of the 1937 plans he reviewed were silent as to the number of westbound lanes that would be marked for the roadway. The 1984-87 drawings showed a design for only one westbound lane of travel at that point, and the October 16, 2000, plan for highway changes after the accident followed the same general format of those drawings. Kuperstein had reviewed all of the plans for the roadway that were supplied in discovery as to both the Luz accident litigation and the present litigation, and none showed"an approved plan or design for striping, pavement markings or other traffic control devices, approving the pertinent area of Route 7 as a two-lane roadway prior to the accident in question."
In its written opinion dated August 5, 2003, the trial court reviewed the definition of a"dangerous condition" under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and recited that Kuperstein had"identified the curvature of the road as the cause of the accident." The court found it significant that Kuperstein"found no deviation between the construction-plans showing the curvature of the road and the actual site co
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