Plaintiff, Alexander Ferris, at age 13 was injured when struck by a car driven by defendant Aida Blanco-Alquacil as he crossed the road in the crosswalk at an intersection in the Borough of Middlesex. His parents filed a lawsuit, alleging negligence by the defendant driver, as well as the Borough of Middlesex, claiming that the intersection was a dangerous condition and it lacked adequate signage. The issue in Ferris v. Blanco-Alquacil, 2019 N.J. Super. Unpub. LEXIS 2125 (App. Div. October 17, 2019) was whether the Borough would be liable for failure to install an upright crosswalk sign at the intersection.
The Borough had obtained a summary judgment in its favor, arguing that the intersection was not a dangerous condition under the New Jersey Tort Claims Act. It obtained an expert report that the crosswalk and intersection were not a dangerous condition because the crosswalk was clearly marked with a street light above. The plaintiff had opposed that motion, arguing that the intersection did not have an upright crosswalk sign, as did the crosswalks on the same road and intersections before and after.
In granting Middlesex’s Motion for Summary Judgment, the trial court judge determined that the lack of the sign could not have been a proximate cause of the accident. In the defendant’s deposition, the defendant acknowledged that she would “slow down” and be “more careful” upon seeing an upright crosswalk sign. She was familiar with this intersection, driving this road twice per day and going slowly, because there are many businesses in the area and a lot of people walk there. She saw the crosswalk lines at the subject intersection. Hence, the trial court judge found that the fact that there was no upright sign is moot because the defendant testified she was aware of the crosswalk and looked for pedestrians.
Upon appeal, the plaintiff argued that there was a genuine dispute whether the absence of an upright crosswalk sign at the intersection could have been a proximate cause of the accident. In opposition, Middlesex disputed this argument and also added that the Tort Claims Act sign immunity defense, N.J.S.A. 59:4-5, applied to bar the claim against it. This provision specifically immunizes the public entity “for an injury caused by the failure to provide ordinary traffic signals, signs, markings, or other similar devices.” While the sign immunity defense had not been specifically raised below, the Appellate Division did consider it upon appeal.
The plaintiff acknowledged that the intersection and crosswalk where the accident occurred did not inherently pose “a substantial risk of injury” when “used with due care.” Plaintiff acknowledged that the crosswalk was appropriately marked and visible to approaching drivers. Nevertheless, the plaintiff argued that “a reasonable fact finder could conclude the presence of upright crosswalk signs at other adjacent intersections on the road transform this intersection, which lacked a sign, into a dangerous condition under the TCA.”
The plaintiff argued that the Civalier by Civalier v. Estate of Trancucci case applied. In the Civalier case, there was a missing stop sign due to vandalism, which was an apparent recurring problem in a municipality. One of the drivers knew there was a stop sign that regulated the intersection and assumed that he had the right of way. The other driver, however, proceeded into the intersection, resulting in a horrible accident, causing three fatalities and two injuries.
In Ferris, the Appellate Division found that there was nothing in the motion record demonstrating that this intersection in question ever had an upright crosswalk sign and, further, the record was clear that the defendant never relied upon the previous presence of the sign in driving down the road on the night of the accident. The Appellate Division found that “in the absence of any proof that Middlesex ever placed an upright crosswalk sign at this particular intersection, this case is similar to numerous other cases applying the sign immunity of N.J.S.A. 59:4-5 to defeat a plaintiff’s claim of a dangerous condition of public property.”
The Court further found Middlesex’s decision to place signs at other intersections could not overcome the sign immunity defense, which immunized Middlesex’s discretionary decision not to post an above-ground crosswalk sign at the intersection in question. The Appellate Division held that without other proof that the crosswalk and intersection formed a dangerous condition, it was appropriate for a trial court to grant summary judgment. Thus, the Court affirmed the trial court’s order granting summary judgment in favor of the Borough of Middlesex.
Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.