# Costa v. Josey/Dissent Clifford

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Clifford
CLIFFORD, J., dissenting.
Being generally in accord with the views expressed by Judge Horn for the Appellate Division, 160 N.J. Super. 1 (1978), I would affirm. Summary judgment was properly entered for the Department of Transportation.
The subject of this dispute is a concrete center divider on Route 4 in Teaneck. The divider was constructed in 1956 pursuant to plans approved by the State Highway Engineer and the State Highway Commissioner. At that time the barrier was [NJ61] 19 inches high. In 1962 and again in 1974 the particular stretch of Route 4 in question was resurfaced. The 1972 resurfacing was completed pursuant to plans approved by the State Highway Engineer and the State Highway Commissioner. Plans for the 1974 resurfacing were designed by Bernard Olszanowski, the coordinator for the State Department of Transportation's resurfacing program, and approved by the Chief of the Bureau of Maintenance and by Mr. James R. Schuyler, Chief Engineer, Construction and Maintenance. As a result of the 1962 and 1974 resurfacings the vertical facing at the base of the divider was eliminated and the height of the divider was reduced to about 14 or 15 inches.
The plaintiff argues that the resurfacing substantially changed the nature of the divider, transforming it into a vaulting ramp. He charges the Department of Transportation with negligently maintaining and repairing the divider, thereby creating a dangerous condition which caused the accident. The Department defends on the basis of immunity afforded by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (hereafter the Act), particularly plan and design immunity, N.J.S.A. 59:4-6, and discretionary activities immunity, N.J.S.A. 59:3-2.
Immunity is the dominant consideration of the Act. See, e.g., [A344] Malloy v. State, 76 N.J. 515, 519 (1978). It is beyond dispute that the legislative intent was to restore the State's tort and contract immunity subject to certain carefully delineated exceptions. Id. at 518-19; N.J.S.A. 59:1-2. To make this as explicit as possible, the Comment to N.J.S.A. 59:2-1 states that the statute is "intended to ensure that any immunity provisions provided in the act or by common law will prevail over the liability provisions."
[NJ62] In dealing with the liability of public entities for conditions of public property, the legislature set forth a specific scheme. See N.J.S.A. 59:4-1 et seq. Of especial interest and indeed controlling import is N.J.S.A. 59:4-6, which states:
   Neither the public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of public property, either in its original construction or any improvement thereto, where such plan or design has been approved in advance of the construction or improvement by the Legislature or the governing body or a public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved. (Emphasis added.)
The legislative intention behind this section of the Act is clear. As appears from the Comments, this section "is intended to grant a public entity and a public employee complete immunity for injuries resulting from a plan or design of public property when it has been officially approved by an authorized body." Comment, N.J.S.A. 59:4-6. The policy behind the immunity is self-evident. Were it otherwise, the State would be exposed to a very broad and extensive sphere of liability against which adequate economic protection would be impossible.
   A private entrepreneur may readily be held for negligent omissions within the chosen ambit of his activity. But the area within which government has the power to act for the public good is almost without limit, and the State has no duty to do everything that might be done. Rather there is a political discretion as to what ought to be done, as to priorities, and as to how much should be raised by taxes or borrowed to that end. If government does act, then, when it acts in a manner short of ordinary prudence, liability could be judged as in the case of a private party. So if a road were constructed of a design imperiling the user, the issue of fault would present no novel problem. But whether a road should have four or six or eight lanes, or there should be dividers, or circles or jughandles for turns, or traffic lights, or traffic policemen, or a speed limit of 50 or 60 miles per hour -- such matters involve discretion and revenue and are committed to the judgment of the legislative and executive branches. As to such matters, the [NJ63] question is whether a judge or jury could review the policy or political decisions involved without in effect taking over the responsibility and power of those other branches. [Fitzgerald v. Palmer, 47 N.J. 106, 109-10 (1966).]
Examination of N.J.S.A. 59:4-6 discloses that there are several grounds for immunity built into one section: (1) the plan, design or improvement has been approved by an official body; (2) the plan, design or improvement has been approved by a public employee exercising discretion; (3) the plan, design or improvement is in conformity with standards previously so approved. For purposes of such immunity the design or plan need only be approved in advance of construction, either by the legislative body of the public entity or by an employee exercising discretionary authority to give approval. [A345] Thomson v. City of Glendale, 61 Cal.App.2d 378, 132 Cal.Rptr. 52, 56 (Ct.App.1976). Further, there is no requirement that the design or plan be expressed in any particular form. Id. at 385, 132 Cal.Rptr. at 57.
Unlike the situation in Ellison v. Housing Auth. , 162 N.J. Super. 347 (App.Div.1978), the State here has offered clear and uncontroverted proof that the divider was constructed and the subsequent road resurfacings were performed pursuant to a plan approved by an official body or a public employee exercising discretion, or by both. The substance of the affidavits submitted by the State concerning this prior approval has not been contested by the plaintiffs. Both the trial court and the Appellate Division concluded that this prior approval was sufficient to bring the resurfacing within N.J.S.A. 59:4-6. 160 N.J. Super. at 10. Thus the inquiry is ended. Where the plan or design of an improvement to public property has been approved by a public employee exercising discretion or by an official body, the State is immune from liability for injuries resulting from a dangerous condition on that public property. Rodgers v. Passaic Housing Auth., 139 N.J. Super. 569 (App.Div.), certif. den., [NJ64] 71 N.J. 337 (1976); N.J.S.A. 59:4-6. See Cobb v. Waddington, 154 N.J. Super. 11 (App.Div.1977), certif. den., 76 N.J. 235 (1978); Spin Co. v. Maryland Cas. Co., 136 N.J. Super. 520 (Law Div.1975).
The plaintiffs seek to evade the immunity mandated by the statute by arguing that there is a factual dispute as to the original purpose of the divider's vertical facing -- that is, so much of the facing as was covered by the subsequent road resurfacings. As I read the majority opinion, the Court may very well have been distracted by this suggestion. The argument overlooks the point that where the subsequent resurfacing is immunized under N.J.S.A. 59:4-6, facts involving the resurfacing and the original design of the divider simply are not material. See, e.g., Allstate Ins. Co. v. Metropolitan Sewerage Comm'n, 80 Wis.2d 10, 258 N.W.2d 148 (1977).
In Allstate, the plaintiff was involved in an automobile accident while trying to avoid a truck discharging effluent into a manhole in the traveled portion of the street. The manhole was part of the sewage system maintained and operated by the City of Milwaukee and the municipal sewerage commission had issued the truck a permit for the dumping. 258 N.W.2d at 149. The Wisconsin Supreme Court concluded that the decisions of the city commission in planning and designing the sewage system, including the placement of the manhole, were legislative acts performed pursuant to the commission's authority to plan and construct sewer systems in the metropolitan Milwaukee area. Id. at 150. As such, the municipal corporations involved were immune from liability.
   If the placement of the manhole was in compliance with the location set forth in the plan it was a nondiscretionary act . . . and protected by governmental immunity. This is so even though the placement and subsequent use of the manhole may have created a danger. [Id. at 151 (footnote omitted).]
The Wisconsin court expressed no opinion on the question of whether the municipal immunity that attached to the planning [NJ65] function should persist in view of subsequent experience or changed conditions which demonstrate an actual and substantial danger. Id. n. 5.
That question was addressed in Baldwin v. State, 6 Cal.3d 424, 491 P.2d 1121, 99 Cal.Rptr. 145 (1972). There the California Supreme Court held that where changed physical conditions produce a dangerous condition of public property causing injury, the public entity does not retain statutory immunity from liability even though the plan or design of the construction or improvement to the public property is shown to have been reasonably approved in advance or prepared in conformity with standards previously so approved. Id. at 438, 491 P.2d at 1127-28, 99 Cal.Rptr. at 154-55. In Baldwin, the changed physical condition was a substantial increase in road traffic. [A346] Id. at 429, 491 P.2d at 1123-24, 99 Cal.Rptr. at 147.
Notwithstanding its assertion to the contrary it appears from its emphasis on maintenance and allocation of resources, ante at 342, that the majority is attempting to inject the rule in Baldwin into our tort claims jurisprudence. On the face of it this is a logical effort, since our Tort Claims Act is modeled after the comparable California statute. Normally, we may profitably look for guidance to the interpretative decisions on the subject in the California courts. Burg v. State, 147 N.J. Super. 316, 322 (App.Div.), certif. den., 75 N.J. 11 (1977). However, in pursuing that course in the circumstances before us, the majority today does indirectly that which it has been instructed not to do directly; for the legislature flatly disapproved of the Baldwin case in the Comments accompanying the Act. Comment, N.J.S.A. 59:4-6. Baldwin was "specifically rejected as unrealistic and inconsistent with the thesis of discretionary immunity -- that a coordinate branch of government should not be second-guessed by the judiciary for high level policy decisions." Id. While there is much to be said as a matter of policy for the Baldwin rule -- and, by the same token, for the rule adopted by the [NJ66] majority today -- that rule is simply and plainly not the law of New Jersey. It is not within the province of this Court to override the legislature's unmistakable rejection of the Baldwin rule.
The Act clearly dictates that there is no limitation on the length of protection offered to governmental entities by the statutory immunity of N.J.S.A. 59:4-6. As the Comment states:
   [I]t is intended that the plan or design immunity provided in this section be perpetual. That is, once the immunity attaches no subsequent event or change of conditions shall render a public entity liable on the theory that the existing plan or design of public property constitutes a dangerous condition.
Accordingly, I would affirm.

## Notes

* ↑ The Comments appended to the statute are taken from the Report of the Attorney General's Task Force on Sovereign Immunity -- May 1972, and accompanied the Act during its consideration by the legislature. They have the precedential weight and value of legislative history. See Ellison v. Housing Auth., 162 N.J. Super. 347, 353 (App.Div.1978) (Comment cited as indicative of legislature's express intention).