CIVALIER BY CIVALIER v. Estate of Trancucci , 138 N.J. 52 ( 1994 )

The opinion of the Court was delivered by

O’HERN, J.

At issue in this case is the liability of public-entity defendants, Gloucester County, Washington Township, and the Washington Township Police Department, for an automobile accident allegedly caused by a missing traffic sign. Three people lost their lives in the accident.

I

Because the case arises on summary judgment, all inferences of fact must be drawn in favor of those parties opposing the motion. Pretrial discovery discloses the following. Margaret Trancucci was driving an automobile west on Mariner Drive, a municipal road in Washington Township, New Jersey, in the early evening of November 30, 1989. Anthony Previte was driving a panel truck south on Pitman-Downer Road, a county road. A stop sign was ordinarily posted at the northeast corner of the intersection of the two roads, facing east on Mariner Drive. Previte knew that a sign regulated the intersection and he assumed that he had the right of way. However, at the time of the accident, the sign was missing, leaving only a bare pole. The sign had been reported missing earlier in November and Washington Township had replaced it. Between the time of that replacement and the accident, the sign had been removed again. The Chief of the Washington Township Police Department acknowledged that vandalism of stop signs is a recurring problem for the community.

A Wawa convenience store is located on the same northeast corner of the intersection. Overgrown shrubbery on that corner obscured visibility of southbound traffic on Pitman-Downer Road. An eyewitness estimated the speed of Previte’s truck to be forty-five miles per hour and the speed of Trancucci’s car to be five miles per hour as she entered the intersection. When Trancucci reached the center of the intersection, she apparently noticed Previte’s oncoming truck and accelerated in an unsuccessful effort to avoid being hit by the truck.

As a result of the accident, Trancucci and her two adult passengers, Genevieve Dianora and Barbara Civalier, died. Ten-year-old Steven Civalier, another passenger in Trancucci’s ear, and Anthony Previte were injured. These suits variously charge the drivers, the convenience store, the store’s landscape contractors, and the public entities with causing the accident. The three public entities filed motions for summary judgment on the basis that N.J.S.A. 59:4-5 grants them immunity from liability for “failure to provide ordinary traffic signals, signs, markings or other similar devices.”

The trial court granted those motions, holding that the asserted dangerous condition of property arose from the absence of an ordinary traffic signal, a condition for which N.J.S.A. 59:4-5 specifically grants public entities immunity. The court concluded that the intersection did not constitute a “dangerous condition” of public property for purposes of liability under either N.J.S.A. 59:4-2 or N.J.S.A. 59:4-4 (requiring emergency warning of dangerous conditions that are not apparent) because, when the sign was removed, the intersection became an ordinary “uncontrolled intersection” under N.J.S.A 39:4-90, and the regulations promulgated under that statute dictated the appropriate conduct of drivers approaching the intersection. The court thus reasoned that an uncontrolled intersection is not an unusual, extraordinary, or unexpected occurrence or condition calling for immediate action under N.J.S.A 59:4-5. The Appellate Division denied leave to appeal that ruling. We granted leave to appeal, 134 N.J. 556, 557, 636 A.2d 516 (1993).

II

In a recent series of eases, we have considered the proper relationship between the liability and immunity provisions of the New Jersey Tort Claims Act, N.J.S.A 59:1-1 to :12-3 (the Act). For example, in Weiss v. New Jersey Transit, 128 N.J. 376, 608 A.2d 254 (1992), we faced an issue similar to that currently before us. In that ease, a driver’s car was struck by a train at an uncontrolled railroad grade crossing. A traffic signal had long been planned for the grade crossing, but a “tortuous history of bureaucratic red-tape,” 245 N.J.Super. 265, 270, 584 A.2d 1359 (App.Div.1991), delayed its operation. Plaintiffs in Weiss claimed that the legislative grant of immunity for failure to place a traffic signal under N.J.S.A. 59:4r-5 did not apply because the true cause of the dangerous condition was not the absence of the traffic signal but rather the independent negligence of the public bodies in delaying the installation of the traffic signal.

We did not agree. We believed that the denial of immunity to a public entity on the basis of administrative negligence in implementing a plan to post a traffic signal would result in there being “little left to the immunities granted by the Act.” 128 N.J. at 380. We recognized the closeness of the call, but we believed that the liability provisions of the Act could not take precedence over specifically-granted immunities. Our precedent supported that conclusion. In Bombace v. City of Newark, 125 N.J. 361, 593 A.2d 335 (1991), we had held that the ordinary negligence of a municipal official in terminating a legal proceeding to prosecute housing violations did not diminish the explicit grant of immunity contained in the Act for failure to enforce the law. In Pico v. State, 116 N.J. 55, 560 A.2d 1193 (1989), we had held that the express immunity for weather conditions under N.J.S.A. 59:4-7 barred suit against the State for any negligent delay in dispatching the road sanders to clear up icy roads. In short, we recognize that “[w]e have been adjured by the framers of the Tort Claims Act that we should approach these cases from the perspective that immunity is the dominant theme of the Act. * * * [When] an immunity applies, liability does not attach.” Weiss, supra, 128 N.J. at 383, 608 A.2d 254.

Although this accident might not have happened had the public bodies used “vandal-proof’ bolts to make removal of the sign much more difficult, were we to recognize the failure to affix properly an ordinary traffic signal as a basis for government liability, we would be logically compelled to recognize liability for failure to post promptly a traffic signal as well. We do not believe that the Legislature intended such liability. See Kolitch v. Lindedahl, 100 N.J. 485, 496, 497 A.2d 183 (1985) (“[B]oth the decision [to post a sign] and the act of implementation are one and the same for the purposes of the [traffic sign immunity].”). Were that issue (improper posting of the sign) the only issue, we would affirm.

Ill

A.

One fact, however, distinguishes this case from Weiss and Kolitch. As the driver to the right at an uncontrolled intersection, Previte had the right of way, N.J.S.A 39:4-90. In addition, he believed that he was entering a controlled intersection that provided him the right of way. Although N.J.SA 59:4-5 explicitly grants public entities immunity from liability “for an injury caused by the failure to provide ordinary traffic signals, signs, markings or other similar devices,” an exception to the immunity provisions of the Act allows public entities to be held hable for injuries caused by their failure to provide emergency warning signals:

Subject to section 59:4-2 of this act, a public entity shall be liable for injury proximately caused by its failure to provide emergency signals, signs, markings or other devices if such devices were necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.

[N.J.S.A 59:4-4 (emphasis added).]

How does the foregoing provision relate to the immunity for failure to provide ordinary traffic signals under N.J.S.A 59:4r-5? Spin Co. v. Maryland Casualty Co., 136 N.J.Super. 520, 524, 347 A.2d 20 (Law Div.1975) (finding no emergency in failure to post height of bridge), explains that “in enacting N.J.S.A 59:4-4 and 5, * * * the Legislature intended to codify pre-existing case law * * The comment to the sections indicates that those sections codified Hoy v. Capelli, 48 N.J. 81, 222 A.2d 649 (1966), and Bergen v. Koppenal, 52 N.J. 478, 246 A.2d 442 (1968). See N.J.S.A. 59:4-5 comment (stating that “[t]his section is consistent with existing New Jersey law,” and citing Hoy); N.J.S.A. 59:4-4 comment (stating that provision imposes liability “for the failure on the part of a public entity to provide an emergency warning signal or device when a condition exists constituting a ‘trap’ to a person using a street or highway with due care,” and citing Bergen).

In Hoy, supra, 48 N.J. 81, 222 A.2d 649, the City of Wildwood removed a defective traffic light that needed to be replaced. The City took no further action to ensure that the intersection, which had been regulated by two stop signs prior to the initial installation of the traffic light, remained safe while the traffic light was down. As a result, a collision occurred. The Court held that the common law furnished the City with immunity from liability for the accident because “the sole traffic light at the intersection had been completely removed for almost two months and there [was] not the slightest suggestion that either driver relied on the fact that it or any other traffic regulation device had existed.” Id. at 86, 222 A.2d 649.

On the other hand, in Bergen, supra, 52 N.J. 478, 246 A.2d 442, this Court allowed a jury to consider public-entity liability for failure to take remedial action after a broken cable caused a traffic light to turn and become misdirected. The Court identified the issue as “whether for tort purposes the Township was * * * under a duty to take over traffic control when its officer learned of the situation * * Id. at 480, 246 A.2d 442. It held that “a duty may be found if a police officer learns of an emergent road condition which is likely not to be observed by a motorist and which holds an unusual risk of injury.” Ibid.

The facts of our case differ from the facts of Hoy in that the truck driver, Previte, was relying on the existence of a stop sign on the municipal road as he drove down the county road, whereas the drivers in Hoy were not relying on the existence of any traffic signal. Thus, because the Court qualified its ruling in Hoy by emphasizing the absence of reliance by either driver, the codification of Hoy does not automatically bar suit against the public bodies in this case.

B.

New Jersey patterned its Tort Claims Act largely on the California Tort Claims Act. Tice v. Cramer, 133 N.J. 347, 361, 627 A.2d 1090 (1993). In its May 1972 report to the New Jersey Legislature, the Attorney General’s Task Force on Sovereign Immunity gave a paragraph-by-paragraph summary of the prototype California Tort Claims Act of 1963. The California act has similar interrelated provisions granting immunity for “failure to provide” traffic signals but imposing liability for “failure to warn” of dangerous conditions not readily apparent to the public.

The text of the two California provisions as they existed in 1972 read as follows:

§ 830.4 [Traffic control signs, roadway markings].

A condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.

[iCaLGov’t Code § 830.4.]

§ 830.8 [Failure to provide traffic or warning signals, markings, etc.]

Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.

[Cal Gov’t Code § 830.8.]

The approved California Law Revision Commission Comment to that section stated:

This section prevents the imposition of liability based on the failure to provide traffic regulatory or warning signals or devices of a type not listed in Section 830.4 but liability may exist for failure to provide such a signal or device where the condition constitutes a trap to a person using the street or highway with due care.

[As cited in Arvo Van Alstyne, California Government Tort Liability 558 (1964).]

A New Jersey legislator seeking to understand the meaning of these prototype provisions would have been drawn to Arvo Van Alstyne’s definitive treatise, California Government Tort Liability, supra. In explaining the meaning of Section 830.4, Professor Van Alstyne wrote:

The purpose of this limitation of the meaning of “dangerous condition” is directly related to the discretionary nature of the subject matter. As the California Law Revision Commission pointed out (RECOMMENDATION RELATING TO SOVEREIGN IMMUNITY 823):

Whether or not to install regulatory traffic devices in particular locations requires an evaluation of a large variety of technical data and policy criteria, including traffic volume frequency and peak load factors, physical layout and terrain, visibility hazards and obstructions, prevailing weather conditions, nature of vehicular use, normal traffic speed in the area, volume of pedestrian traffic, alignment and curvature, need for similar precautionary measures at other like places, alternative methods of control, and availability of funds to do the job. Decisions not to adopt control devices, when based on premises of this order, do not appear to be readily susceptible to intelligent and rational reexamination by untrained juries or judges sitting as triers of fact.

[Id. at 197.]

Hence, Professor. Van Alstyne noted that the Section 830.4 granting of immunity for failure to provide certain regulatory devices is

limited to a “failure to provide,” and does not affect liability based on a failure to maintain regulatory devices, stop signs, and roadway markings, when this failure causes the road or intersection to become dangerous. Under the Public Liability Act, when motorists were entitled to rely on regulatory devices, the failure to keep the devices working properly and unobscured was held actionable. Dudum v City of San Mateo (1959) 167 CA2d 593, 334 P2d 968 (stop sign obscured by foliage); Bady v Detwiler (1954) 127 CA2d 321, 273 P2d 941 (defective traffic light indicating “Go” in both directions); Irvin v Padelford (1954) 127 CA2d 135, 273 P2d 539 (stop sign temporarily removed during repairs); Rose v County of Orange (1949) 94 CA2d 688, 211 P2d 45 (stop sign knocked down and not replaced). Of course, if the malfunctioning of the regulatory device did not make the street dangerous to traffic, no liability was imposed. Cf. Goodman v Raposa, [ (1957) 151 Cal.App.2d 830, 312 P.2d 65] supra (fact that traffic light not working did not furnish basis of liability, where vehicles on main boulevard were protected from side street traffic by boulevard stop signs).

[Id. at 198.]

The New Jersey Act does not, as California’s does, draw a dichotomy between regulatory signs (such as stop signs, stop lights, and double lines) and warning devices (such as “curve ahead” and “road narrows”). Instead, the New Jersey Act compresses the concepts into a single mold, grants immunity for failure to provide ordinary traffic signals, N.J.S.A. 59:4-5, but imposes liability for failure to provide warning signs when “necessary to warn of a dangerous condition which endanger[s] the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.” N.J.S.A. 59:4-4.

The reasoning in Hoy, supra, and Bergen, supra, both accepted by the official commentary of the New Jersey Act, appears to be the same as that under California law. When motorists are entitled to rely on regulatory devices, failure to keep the devices working properly is actionable unless the malfunctioning of the regulatory device does not make the street dangerous to traffic. Rose, supra, 211 P.2d 45, is almost on all fours with this case. In that case, cited in Van Alstyne, supra, at 198, as consistent with the analogous California Code provision dealing with failure to provide stop signs, a preexisting stop sign had been taken down when city workers took down a light pole to repair wiring. “Liability [for the missing stop sign in Bose ] was based on the fact that its total absence, when a driver on the through street was entitled to rely on its protective presence, created a dangerous condition of public property.” Dudum, supra, 334 P.2d at 971.

How do we assess whether, under the New Jersey Act, a “trap” for motorists has been created? One court has suggested an analysis:

In Bergen * * *, the malfunction in the signal was actively deceptive: a green light appeared at both junctions of the intersection. A jury could reasonably infer that the light was a cause of the accident, as each person approaching the intersection was, in effect, lulled into a false sense of security by the green light in his favor.

[Lytle v. City of Newark, 166 N.J.Super. 191, 196 (399 A.2d 333] (Law Div.1979) (holding public entity immune when both drivers could plainly see that traffic light was not functioning).]

The question is whether the absence of a traffic signal that had been at the intersection “was actively deceptive” or “lulled [at least one of the drivers] into a false sense of security,” thus constituting a “trap” under N.J.S.A. 59:4-4.

IV

Consistent with the California understanding and prior case law, we hold, in this context of previously-posted traffic signals, that our “trap liability” provision, N.J.S.A 59:4-4, limits recovery to those plaintiffs injured by motorists’ reliance on the proper functioning or presence of a previously posted signal to their detriment. We limit the imposition of liability in that way because in the absence of reliance the public entity and the public are in the same position as they were before the entity posted the sign. In that setting of non-reliance, as we held in Weiss, supra, 128 N.J. 376, 608 A.2d 254, public entities have the same immunity for failure to implement promptly a decision to post a sign as they have for their initial discretionary decision not to post a sign at all. However, the element of a driver’s reliance on the sign’s presence may create a dangerous condition of property for purposes of N.J.S.A. 59:4-4 when the signal is malfunctioning or absent. Therefore, we hold that a public entity is liable for its failure to replace a traffic sign only when the motorist’s reliance on the previous presence of the sign caused the claimant’s injuries.

In Eason v. New Jersey Automobile Full Insurance Underwriting Ass’n, 274 N.J.Super. 364, 644 A.2d 142 (App.Div.1994), the court held that a driver who had relied on the presence of a stop sign could assert a claim under N.J.S.A 59:4-4:

After the municipality has both determined by ordinance to place, and has actually installed the traffic sign, its temporary absence could also be considered an emergency requiring the municipality to act, and for which the municipality has no immunity. N.J.S.A 59:4-4.

[Id. at 374, 644 A.2d 142.]

Similarly, in Shuttleworth v. Conti Construction Co., Inc., 193 N.J.Super. 469, 475 A.2d 48 (App.Div.1984), the court held that those injured by a motorist who went through a stop sign obscured by a bush had a cause of action against the county:

Whether we view this case as one challenging the manner in which the sign was originally placed given the sight lines along [the road], or the manner in which the sign was maintained and the bushes trimmed (the offending bush, * * * was on county property), the challenge is to the creation or maintenance of a dangerous condition after the discretionary activity had been taken by the county.

[Id. at 472-73, 475 A.2d 48.]

Smith v. State Department of Transportation, 247 N.J.Super. 62, 588 A.2d 854 (App.Div.1991), certif. denied, 130 N.J. 13, 611 A.2d 651 (1992), differs from Eason and Shuttleworth. In Smith, only a sign on an overpass indicated the height of the underpass beneath it. The absence of an earlier warning caused a tractor-trailer that was too high to pass through the underpass to back up toward an exit, thus obstructing the roadway and creating a hazard. The court held that “because there is immunity for not posting a sign initially and for where the sign is placed, immunity also exists for not replacing a missing sign.” Id. at 69, 588 A.2d 854. However, the circumstances of Smith did not suggest the existence of a “trap.” The truck driver in that case never knew of the existence of the earlier sign; therefore, that sign’s absence did not lull the driver into a false sense of security. Moreover, although it makes good sense to do so, there is no duty to post the height of a bridge. Spin, supra, 136 N.J.Super. 520, 347 A.2d 20. Drivers can see that for themselves.

In Weiss, supra, 128 N.J. 376, 608 A.2d 254, we noted that

[w]ere there any other triable issue of independent negligence — for example, had the underbrush that obscured visibility at the crossing been on defendants’ property and subject to their maintenance, or had there been any other condition of the property that caused the dangerous condition to exist, e.g., a pothole of long duration, an oil spill on the roadway, or a broken traffic light, the complaint might have stated a cause of action.

[/d at 382, 608 A.2d 254 (emphasis added) (citation omitted).]

In a sense, we have here a broken traffic signal. Like the misdirected light in Bergen, supra, 52 N.J. 478, 246 A.2d 442, the conditions here lulled Previte into a false sense of security. This case, then, unlike Weiss, does present a “triable issue of independent negligence,” namely, whether, if it is shown that the public-entity defendants had actual or constructive notice that the stop sign had disappeared, their failure to take remedial action was “palpably unreasonable.” Whereas Weiss concerned the initial implementation of the discretionary decision to place a traffic signal at a railroad crossing, for which N.J.S.A. 59:4-5 clearly immunizes public entities, see Kolitch, supra, 100 N.J. at 496, 497 A.2d 183, this case concerns a failure to replace a traffic sign after the motoring public had come to rely on it.

V

To sum up, we agree with our dissenting colleagues that taken alone the immunity language of N.J.S.A 59:4-5 might very well support a conclusion that no liability exists in this case. After all, one’s first tendency is to conclude, post at 72, 648 A.2d at 716, that “the true culprit” is the public body’s “failure to provide” a stop sign at the intersection. But further analysis suggests that the “true culprit” is not the absence of the stop sign but the go-ahead signal previously given to motorists in the through way.

In its single-dimensional focus on N.J.S.A. 59:4-5, the dissent fails to acknowledge and apply the well-settled rules of statutory construction that the Court has followed in interpreting the Tort Claims Act from its inception. The first rule is that the interpretations of the almost identical act in California, the act on which our Tort Claims Act was patterned, are considered especially persuasive of the intended meaning of the Act as adopted by our Legislature. When the Legislature modeled our law after the California act, it intended, in the absence of other express intent, that we follow the California courts’ interpretations of the Act. Tice, supra, 133 N.J. at 361-62, 627 A.2d 1090; Fuchilla v. Layman, 109 N.J. 319, 331, 537 A.2d 652, cert. denied sub nom. University of Medicine & Dentistry v. Fuchilla, 488 U.S. 826, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988). That interpretive rule was based on precisely what the New Jersey Legislature intended, and such interpretations of the Act conform to the legislative intent, not supersede it, as the dissent claims. California decisions on the issue before us have held that no immunity exists. One who is injured because of a reliance on the existence of a stop sign that has been removed and not replaced may recover if all other conditions of liability are met.

Another rule of statutory interpretation that we have regularly followed in construing the Act is that the comments of the New Jersey Attorney General’s Task Force that were before the Legislature when it adopted the Tort Claims Act are given not simply deference but something close to binding effect. Rochinsky v. State Dep’t of Transp., 110 N.J. 399, 407 n. 4, 541 A.2d 1029 (1988). The commentary to the relevant sections of the Act makes it equally clear that the Act was intended to adopt the holding of several cases decided prior to the Act itself. That the Legislature intended the Act to be interpreted in accordance with the commentary is not an invention of this Court but a conclusion uniformly supported by drafting history. The cases cited in that commentary make clear to us that one who has relied on a traffic signal that is no longer functioning properly may recover for the municipality’s failure to replace it if its absence misdirects traffic. In imposing liability in this matter, the Court is simply doing the will of the Legislature, and doing it in the same way we have done since the Act became law. That only those who are injured because of a motorist’s reliance will recover (whether they are out-of-towners or residents) is simply a consequence of the rule itself, recognized in the cases cited in the commentary and by the courts of California.

The dissent is also correct in noting the well-settled rule that immunity is the dominant theme of the Act and that the function of this Court is not to diminish a legislatively intended immunity by inventive judicial interpretation. But this Court also does not function to expand an immunity beyond that intended by the Legislature, to expand it to a point that conflicts with legislative intention as determined by our previously well-settled rules of construction. We do not intend to become, and in the past we have not been, advocates of compensation for injured parties in conflict with the legislative will. We have sustained the legislative immunities in the most tragic settings. See Levin v. County of Salem, 133 N.J. 35, 626 A.2d 1091 (1993) (finding no government liability where man dove from county bridge into shallow tidal waters, suffering paralyzing injury); Manna v. State, 129 N.J. 341, 609 A.2d 757 (1992) (holding public entity immune where motorist killed in accident on a bridge slippery from rain); Weiss, supra, 128 N.J. 376, 608 A.2d 254 (finding governmental entity immune from suit arising from fatal train crash). On the other hand, we cannot deprive injured claimants of just compensation when the Legislature intended that they have a right to seek recovery.

Finally, we recognize the concerns that our dissenting members have expressed about the potential fiscal burdens that our holding may impose on public bodies. The fear is that motorists may feign reliance on the absence of a previously-posted stop sign as an excuse for errant conduct and may seek to hold public bodies hable. Only a fairly sophisticated motorist, however, would know our tort-claims law, and we suspect that most drivers will tell their stories honestly in their initial interviews with police investigators. Courts will detect any later attempt to varnish the truth.

In the twenty-two years since the Tort Claims Act was enacted, very few cases have arisen with a scenario such as this one. We do not anticipate an escalation of such claims. The Legislature has provided a remedy to members of the public injured by “failure on the part of a public entity to provide an emergency warning signal or device when a condition exists constituting a ‘trap’ to a person using a street or highway with due care.” N.J.S.A. 59:4-4 comment. But the Legislature has closely limited that remedy by requiring compliance with N.J.S.A 59:4-2, which, among other things, requires a plaintiff to demonstrate that the public entity had actual or constructive notice of the dangerous condition and that the public entity’s conduct was “palpably unreasonable.” Those requirements are difficult to meet. See, e.g., DeBonis v. Orange Quarry Co., 233 N.J.Super. 156, 170-71, 558 A.2d 474 (App.Div.1989) (holding that county’s general knowledge that stones from quarry would occasionally create dangerous condition on road surface was insufficient to impute to county constructive knowledge of condition of road at time of motorcyclist’s accident because condition was dynamic rather than static and was not predictably recurrent). In addition, the Legislature has recognized that public entities cannot be held liable for their discretionary determinations about allocation of limited resources for duties such as road maintenance. N.J.S.A 59:2-3. In short, a regular schedule of maintenance is strong evidence of reasonable conduct.

We vacate the orders of summary judgment in favor of the public entities and remand the matter to the Law Division for further proceedings in accordance with this opinion.