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Pandya v. State2/28/2005
only a general listing of accidents in the area and De Cresce's nonspecific testimony that the roadway had been the site of numerous accidents. Only the Luz accident clearly represented an accident similar to Rahul's, and there is no assertion that corrective action should have been undertaken in the twelve hours between the two accidents.
Nevertheless, we conclude that taking into account Kuperstein's report and deposition testimony as described above, plaintiffs have made a sufficient prima facie showing that the narrow two-lane configuration of the curve was a dangerous condition that contributed to causing the accident. No evidence was presented that Rahul was speeding or driving recklessly in a manner that would have caused an accident even on a safe road, and one can imagine situations (such a sudden blowout or swerving to avoid hitting highway debris, or an encroaching adjacent vehicle) during which a reasonable driver could strike a curb in a narrow roadway and lose control of the vehicle.
Plaintiffs also set forth a prima facie case that the DOT both created the dangerous condition and had sufficient notice of it to correct it, and that the DOT created the allegedly dangerous condition by painting the lines to make the roadway two lanes. The DOT also appears to have been on notice that the roadway was dangerous, as evidenced by the 1984-87 drawing that shows the area narrowing to one lane of travel, which can be inferred to have been created to address a known problem. On this issue as well, plaintiff's showings were sufficient to withstand a motion for summary judgment.
The most difficult hurdle to plaintiffs' proof of liability under N.J.S.A. 59:4-2 may well be in establishing that the DOT's creation and maintenance of the roadway in its dangerous condition was"palpably unreasonable.""Palpable unreasonable ness is a question of fact." Vincitore, supra, 169 N.J. at 130. It means"behavior that is patently unacceptable under any circumstance" and that it must be"manifest and obvious that no prudent person would approve of [the public entity's] course of action or inaction." Holloway v. State, 125 N.J. 386, 403-04 (1991) (quoting Kolitch, supra, 100 N.J. at 493). There appears to be enough to permit the present case to go to a jury because the DOT presumably had some knowledge of a problem that caused the 1984-87 drawing to be created in 1984, and then revised twice in 1986 and 1987. The unreasonableness of delaying implementation of the single-lane alignment in the 1984-87 drawing was bolstered by the view that this and the other recommended changes were relatively inexpensive to implement and very quickly accomplished by the DOT's own crews after the two October 2000 accidents occurred. It is by no means assured that the trier of fact would so conclude, given the absence of evidence as to why the 1984-87 drawing was made and revised, but these factors reasonably could lead a jury to conclude that the DOT's failure to act sooner was palpably unreasonable. Accordingly, we agree with plaintiffs that if no immunity exists, there was no other reason evident on this record to preclude plaintiffs from proceeding with their litigation against the DOT.
The order for summary judgment dismissing these consolidated actions is reversed, and the actions are remanded for further proceedings.
Reversed and remanded.
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