NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Transcription

1 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. DARYL A. WILLIAMS, v. Plaintiff-Appellant, COUNTY OF SOMERSET, COUNTY OF SOMERSET ROAD AND BRIDGE DIVISION, COUNTY OF SOMERSET PUBLIC WORKS DEPARTMENT, TOWNSHIP OF FRANKLIN POLICE DEPARTMENT, TOWNSHIP OF FRANKLIN, and STATE OF NEW JERSEY, and Defendants-Respondents, KEREME MANNERS, BERNETTE C. MANNERS, and JANICE HARVEY, Defendants. Argued April 21, 2015 Decided August 27, 2015 Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L Michael F. Lombardi argued the cause for appellant (Lombardi & Lombardi, P.A., attorneys; Mr. Lombardi, on the briefs). James A. McGhee argued the cause for respondent State of New Jersey (John J.

2 PER CURIAM Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. McGhee, Deputy Attorney General, on the brief). Scott D. Rodgers argued the cause for respondents County of Somerset, County of Somerset Road and Bridge Division and County of Somerset Public Works Department (Office of County Counsel, attorney; Mr. Rodgers, on the brief). Danielle Abouzeid argued the cause for respondents Township of Franklin and Township of Franklin Police Department (Dvorak & Associates, LLC, attorneys; Ms. Abouzeid, of counsel and on the brief). Plaintiff, Daryl A. Williams, appeals from an August 16, 2012 order dismissing his complaint against various government entity defendants. The trial court granted summary judgment to the government entities determining that plaintiff did not demonstrate a dangerous condition that was the proximate cause of his injuries, as required by the Tort Claims Act under N.J.S.A. 59:4-2. Plaintiff appeals from that order, asserting that a jury should be permitted to decide the issue. We affirm the trial court's order granting summary judgement. On May 20, 2009, plaintiff was riding a motorcycle northbound on Easton Avenue, in Franklin Township. Plaintiff sustained serious injuries when Kereme Manners, a driver proceeding westbound on Highwood Road, attempted to make a left- 2

3 hand turn onto southbound Easton Avenue and plaintiff's motorcycle collided with Manners' vehicle. Plaintiff alleged the placement of the stop sign controlling westbound Highwood Road, as well as the presence of untrimmed trees, bushes, and vegetation at the intersection, created a dangerous condition. He argued that the combination of those factors, i.e., the location of the stop sign and foliage, created a visual obstruction to the drivers approaching the intersection. Manners, who traversed the intersection daily, testified that she was aware of the stop sign controlling Highwood Road. She testified that she would routinely stop at the stop sign where her vision of the traffic on the intersecting road was obstructed; pull up closer to the intersecting road until her vision was not obstructed; and stop there again before she turned left onto Easton Avenue. Manners recalled that she followed that same procedure on the date of the accident. During her second stop, Manners testified she was able to "visualize" Easton Avenue, and see on-coming traffic including plaintiff on his motorcycle passing another vehicle. In support of plaintiff's complaint, he identified a liability expert, who authored a report opining the stop sign on Highwood Road's westbound approach to Easton Avenue was located 3

4 in such a manner that the overgrown foliage created a barrier preventing a safe view of the oncoming traffic. Plaintiff, who was in a coma after the accident, had no recollection of the accident. Photographs of the scene of the accident show that the stop sign itself was visible to Manners, and not hidden by foliage. The photos also demonstrate that the sign was located at a point where the bushes obstructed the view of a driver stopped at the sign; but the overgrown foliage does not extend to the intersecting street, thus, supporting Manners testimony that her vision was not obstructed at the point she came to a second stop before she entered the intersection. On those facts, Judge Edward M. Coleman granted the government defendants' summary judgment motions on August 16, In a detailed and well researched opinion Judge Coleman held that: a reasonable jury could not find that either the location of the stop sign or the presence of vegetation created a dangerous condition at the intersection of Highwood Road and Easton Avenue. We view the record de novo and in a light most favorable to plaintiff as the party who opposed summary judgment. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Public entities in New Jersey are immune from tort actions unless liability is expressly provided for by the Tort 4

5 Claims Act. N.J.S.A. 59:1-1 to However, N.J.S.A. 59:4-2, provides: A public entity is liable for injury caused by a condition of its property if the plaintiff establishes 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 which was incurred[.] The trial court found that neither the location of the stop sign nor the presence of overgrown vegetation created a "dangerous condition" at the intersection of Highwood Road and Easton Avenue. Plaintiff cites Shuttleworth v. Conti Construction Company, 193 N.J. Super. 469 (App. Div. 1984). In Shuttleworth, we allowed a claim against a public entity to proceed on the theory that a traffic safety sign was obscured by heavy brush. Id. at Shuttleworth, however, dealt with the need to trim bushes on the public entity's property, which partially obscured the sign. Ibid. There is no evidence in this case that the stop sign itself was obscured. In fact, the undisputed evidence was that Manners was able to see the sign, when she routinely navigated the intersection. The unobstructed stop sign was not a dangerous condition simply because it was placed in a spot where Manners had to go beyond the sign to see down the intersecting street. 5

6 As long as she could see the traffic before entering the intersection, the foliage was no longer a hazard. Supporting Manners' testimony, the photographs show that the heavy foliage along Highwood Road did not extend to the edges of the intersecting street. The area directly along the corner of the intersecting streets is clear of bushes and trees, with a grassy swath of property several feet wide running along Easton Avenue. The uncontroverted evidence in this case is that Manners was able to see oncoming traffic before entering the intersection. The photographs demonstrate the foliage was far enough back from the roadways that plaintiff also could have seen Manners before her vehicle entered the intersection. In a remarkably similar fact pattern in Townsend v. Pierre, 221 N.J. 36, (2015), the Supreme Court barred a plaintiff motorcycle rider's expert's opinion on causation where the expert measured sight lines from a stop sign location, and not where the driver actually recalled stopping and then making a turn. The Court found that there was insufficient evidence to support the expert's opinion that overgrown foliage was a proximate cause of that accident where the driver had slowly moved forward until the view of oncoming traffic was not obstructed before entering into the turn. Ibid. 6

7 In the present case, plaintiff's own expert opined that if the stop sign and a white stop line had been placed closer to the intersection, the obstruction to vision that existed at the stop sign's location on the day of the accident would have been resolved. This statement by plaintiff's expert leaves uncontradicted the testimony of Manners that the drivers' views were not obstructed by a dangerous condition when she entered the intersection. For substantially the same reasons as the trial court, we affirm the dismissal of plaintiff's complaint. Affirmed. 7