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Pandya v. State2/28/2005
nditions" and that he"does not find any particular fault with the fact that the road has two lanes in each direction at the actual site of the accident." The court further noted that Kuperstein"alludes to the lines painted on the road after the accident, reducing two lanes down to one around the Charlotte Circle, suggesting this act should have been done before the accident."
Because the roadway's design, including its"width, grade, curvature and curbing," was approved by the State Highway Commissioner in 1937, the trial court held that any assertions that those factors caused the accident"render the State immune from liability." As to the contention that the lines painted on the road reducing the number of lanes in the curve from two to one should have been done before the accident, and the additional assertion that more signage was needed, the court found that this argument implicated N.J.S.A. 59:4-5, which states that the public entity is not liable for injury caused by the"failure to provide ordinary traffic signals, signs, markings or other similar devices." Finding that this immunity extends to when the public entity created the situation necessitating the additional signals or signs, the court concluded that the DOT"is immune from liability with regard to Plaintiff's contentions as to the lining of the road in question, or the signage or lack thereof."
The parties represented in oral argument that plan and design immunity, N.J.S.A. 59:4-6, is not implicated in this case. Our focus is accordingly on whether ordinary traffic signal immunity applies. We comment briefly and only for context on plan and design immunity.
Plaintiffs contend that the trial court erred in granting the DOT's motion for summary judgment dismissing the complaint, because the two Tort Claims Act immunities relied upon did not apply. On appeal, however, the parties agree that the DOT was not entitled to plan and design immunity, N.J.S.A. 59:4-6, because it could not show that there had been an approved plan authorizing two westbound lanes of travel on the roadway. With respect to ordinary traffic signal immunity, N.J.S.A. 59:4-5, plaintiffs contend that this immunity did not apply because whether the roadway should be painted with one or two lanes of travel was a design issue, not a traffic signal issue.
The Tort Claims Act sets forth a general rule of public entity immunity from liability, with narrow exceptions to that rule. Vincitore ex rel. Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 124 (2001). One of those exceptions is N.J.S.A. 59:4-2, the Act's general liability section. To recover under N.J.S.A. 59:4-2, a plaintiff must show that the property was in a dangerous condition at the time of the injury; that the injury was proximately caused by the dangerous condition; that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred; and that a public employee created the dangerous condition or that the public entity had notice in time to protect against the condition itself. [Kolitch v. Lindedahl, 100 N.J. 485, 492 (1985).]
The Act defines"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. 59:4-1a. The"used with due care" standard"refers not to the conduct of the injured party, but to the objectively reasonable use by the public generally." Garrison v. Tp. of Middletown, 154 N.J. 282, 291 (1998)."A use that is not objectively reasonable from the community perspective is not one'with due care'." Ibid."Thus the standard is whether any member of the general pub
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