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Pandya v. State2/28/2005
lic who foreseeably may use the property would be exposed to the risk created by the alleged dangerous condition." Vincitore, supra, 169 N.J. at 125.
There is no real dispute that liability could not arise respecting a decision whether or not to install traffic control devices, including signs and roadway markers. The ordinary traffic signals immunity statute, N.J.S.A. 59:4-5, provides:"Neither a public entity nor a public employee is liable under this chapter [N.J.S.A. 59:4-1 to -9] for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices." Instead, the issue here is the applicability of this immunity to the roadway stripings to designate the number of lanes of travel.
The applicability of this immunity has been addressed in only a few reported cases."'The determination as to the advisability or necessity of a traffic sign or warning device at any particular place requires the exercise of discretion, and hence N.J.S.A. 59:4-5 simply specifies one particular type of discretionary activity to which immunity attaches.'" Kolitch, supra, 100 N.J. at 496 (quoting Aebi v. Monmouth County Highway Dep't, 148 N.J. Super. 430, 433 (App. Div. 1977)).
This immunity applies whether or not the public entity itself created the condition necessitating the traffic signal or sign. Aebi, supra, 148 N.J. Super. at 433. In Aebi, the court held that the immunity applied to the failure to post a warning sign that the roadway width was abruptly reduced at the approach to a bridge. Ibid. In Kolitch, the immunity applied to the posting of a 50 miles-per-hour speed limit sign within 200 feet of a dangerous"vertical sag curve" and the failure to post a sign warning motorists to reduce speed in the curve. Kolitch, supra, 100 N.J. at 489-90.
In Weiss v. New Jersey Transit, 128 N.J. 376, 379, 383 (1992), the Court found that this immunity applied even where there was a"tortuous" eight-year delay in installing and activating a traffic light at a"notoriously dangerous railroad crossing." The Court noted that the commentary of the Task Force involved in drafting the Tort Claims Act referred to Hoy v. Capelli, 48 N.J. 81, 87 (1966), which endorsed immunity even where traffic signal installation was delayed. Id. at 383.
The parties agree that the only reported case in New Jersey that mentions liability for road markings is Weiser v. County of Ocean, 326 N.J. Super. 194, 198-202 (App. Div. 1999), which involved the issue of whether a county could be held liable for its failure to paint road markings or a turning lane on a State highway to warn motorists trying to turn onto a county roadway. The court wrote that" f the County's culpability is its failure to paint markings, it is immunized from liability by N.J.S.A. 59:4-5[.]" Id. at 202. The court noted a post accident photograph in the record of striping painted on the highway to channel vehicles into a right-angled turn onto the county roadway. Id. at 199. Contrary to plaintiffs' assertion, the Weiser court did not hold or imply that the N.J.S.A. 59:4-5 immunity would not apply to the State; the State's liability or immunity simply was not discussed. The main focus of the opinion was on the county's liability and how it could not be held responsible for painting marks on the roadway that was not"owned or controlled" by it. Id. at 200-02.
We agree with plaintiffs, however, that the lane markings at issue here do not fall within the immunity of N.J.S.A. 59:4-5, because the issue here involved the State's action in affirmatively creating two allegedly dangerous lanes. Although the record does not disclose any plans or other evidence indicating when this first occurred, at so
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