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Pandya v. State2/28/2005
me point prior to September 12, 2000, the State painted a broken line dividing the westbound portion of the roadway into two lanes. Their expert only makes the point obliquely, but plaintiffs expressly contend in their brief that this affirmative act of creating two lanes caused the dangerous condition involved in the accident. Plaintiffs also assert that the creation of two lanes may have been an ad hoc, unplanned change to the roadway, although nothing in the record confirms or denies that assertion. It is equally possible that the roadway was always used as a two-lane roadway, but no available plan or photograph has confirmed that this was so. Indeed, as noted, because of the absence of such plan documents or other evidence, the DOT recognizes that it cannot rely upon the plan and design immunity of N.J.S.A. 59:4-6 regarding the two-lane configuration.
The DOT frames the issue as"failure to paint markings on the roadway that guided a driver in a single lane around the curve," which would have been an appropriate characterization if the roadway was plain asphalt, with no markings at all, perhaps leaving drivers wondering whether the roadway accommodated one or two lanes of travel. Such a situation would have involved a"failure to provide ordinary traffic signals, signs, markings or other similar devices" that was immune from liability under N.J.S.A. 59:4-5. The present case did not involve an absence of a marking; the visible broken center line that created two lanes is the marking that plaintiffs view as problematic.
To be sure, plaintiffs' expert Kuperstein stated the causation issue broadly and imprecisely, and his opinion encompassed the immunity factors of failing to provide"proper positive guidance and maintenance" through painted markings and signs. Reading his statements with reasonable indulgence, however, as is appropriate in the context of a summary judgment motion, we note that his report nevertheless referred to the roadway's"associated traffic control and guidance features," including"insufficient or improper configuration." He further explained in his deposition that the accident's causes included"the pavement markings" and"any sort of roadway markings associated with the pavement." While that measure of vagueness may not offer a basis for substantial confidence that plaintiffs can actually prevail, it is sufficient to permit them to proceed beyond summary judgment on the theory that the pavement markings making two lanes instead of one on the roadway created a dangerous condition that contributed to the accident. As a result, it was error to grant summary judgment to the State on the ground of N.J.S.A. 59:4-5 immunity.
Presumably to avoid affirmance on grounds other than those relied upon for dismissal by the trial court, plaintiffs have set forth their view that they established a prima facie case for public entity liability for a dangerous condition under N.J.S.A. 59:4-2, so as to preclude summary judgment against them. The DOT contends that plaintiffs were unable to show a dangerous condition of the roadway when it was used with reasonable care.
We share, in part, the DOT's doubts as to the ultimate strength of plaintiffs' proofs. The DOT memo prepared after the accidents seeking funding for the roadway changes and citing a"dangerous safety condition" plainly does not require judgment in plaintiffs' favor. The memorandum surely sought to convey a sense of urgency for the funding, but it is not as a matter of law an admission of"dangerous condition" as defined under the Tort Claims Act.
Plaintiffs' proofs about the roadway's prior accident history, moreover, were unconvincing proof of the road's dangerous condition. Plaintiffs presented
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