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DOT Found Not Liable for Plaintiff’s Injuries When Plaintiff Struck by Car as Crossing Highway to Reach DOT Unimproved Parking Lot Across From American Legion

By: Betsy G. Ramos, Esq.

Plaintiff Daniel Mattos and his wife, Cary Mattos, parked their car on the DOT property to attend a St. Patrick’s Day event held at the American Legion, which was located across Route 206 in Frankford Township. Cary was struck and killed by a car driven by defendant Thomas Zoschak as she attempted to cross Route 206 to return to her parked car. The issue in Mattos v. Hotalen, 2018 N.J. Super. Unpub. LEXIS 1968 (App. Div. Aug. 22, 2018), was whether the DOT could be responsible for permitting the American Legion to use its unimproved lot as an overflow parking lot without providing warning signs, crossing guards, safety lighting, or patrol officers to assist in pedestrian crossing of Route 206 or require the American Legion to provide the safety measures.

The DOT moved for summary judgment before the trial court, arguing that it was immune from liability based upon the provision of N.J.S.A. 59:2-4 of the Tort Claims Act, which provides that “a public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law.” Further, the DOT argued that it was not legally obligated to prevent the unauthorized use of its public property.

The trial court judge found that there were several issues of material facts related to whether the proximity of Route 206 to the DOT’s property constituted a dangerous condition, whether the DOT had notice of the dangerous condition, and whether it failed to remediate the dangerous condition. The DOT filed an interlocutory appeal, arguing that the motion judge failed to dismiss the plaintiffs’ claims based upon the immunity granted to public entities concerning the adoption or failure to adopt or enforce a law. In the alternative, the DOT argued that even if N.J.S.A. 59:4-2 applied (liability for dangerous condition of public property), the plaintiffs did not present sufficient evidence that the property was in a dangerous condition.

The Appellate Division noted that the plaintiffs had parked their car on an unpaved, grassy parcel of land that is part of the DOT’s property, located across from the American Legion. Route 206 is a 50 mile an hour road with no pedestrian crossing to allow those who park their car on the DOT’s property to cross Route 206 safely. Further, it found that the DOT maintained Route 206.

This accident happened at about 10:30 pm when the plaintiffs were attempting to cross Route 206 and were struck by a car by the defendant Zoschak. Plaintiff Cary Mattos sustained fatal head injuries and died at the scene.

The DOT property was an unpaved, grassy lot without any designated means of egress and ingress for vehicular or pedestrian traffic. There were no barriers or fences blocking access to the property and on the side of the property adjacent to Main Street, there was a worn down patch that had been used as an unauthorized entrance and exit onto the property. During depositions, the DOT investigator explained that it was illegal for persons attending events held at the American Legion to use the property as a parking lot. However, the DOT did not have any “no trespassing” signs on the property at the time of the accident.

Plaintiff’s theory of liability was based upon the DOT’s failure to take affirmative measures to prevent people from improperly using its lot as a de facto parking area for events held at the American Legion. Stated differently, the plaintiff was arguing that the DOT should be liable for the plaintiffs’ misuse of public property. If the cause of action against the DOT was proximately caused by a dangerous condition located on the property, the Appellate Division held that it would have a “modicum of substantive merit.” However, the plaintiffs decided to cross Route 206 at about 10:30 pm, wearing dark clothing, in an area of the road where the overhead lighting provided intermittent illumination. Hence, the Court rejected the plaintiffs’ arguments attempting to impose an affirmative responsibility on the DOT to facilitate the misuse of its property.

Further, the Appellate Division found that the DOT did have immunity under N.J.S.A. 59:2-4, which provided immunity for any injury caused by adopting or failing to adopt a law or failing to enforce any law. Accordingly, the Appellate Division reversed the trial judge’s denial of the DOT’s motion for summary judgment and found that the complaint should have been dismissed by the Law Division.

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