Kenneth Mr. Vercammen was included in the 2020 “Super Lawyers” list published by Thomson Reuters.

To schedule a confidential consultation, email us at, call or visit

(732) 572-0500

Tuesday, July 31, 2012

Soni v. Woodbridge Twp

DOCKET NO. A-4483-10T4

BRIJAL SONI, as Administratrix
Ad Prosequendum and General
Administrator of the Estate of
Niranjankumar Soni and BRIJAL
SONI, as guardian ad litem of
Alkaben Soni, and ALKABEN SONI,





Third-Party Plaintiff/



July 6, 2012

Argued March 20, 2012 - Decided

Before Judges Reisner, Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2910-08.

Ronald B. Grayzel argued the cause for appellants (Levinson Axelrod, P.A., attorneys; Mr. Grayzel, on the briefs).

Christopher J. Killmurray argued the cause for respondent Township of Woodbridge (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Killmurray, of counsel; Jennifer A. Passannante, on the brief).

Plaintiffs Brijal Soni (Brijal)1 and Alkaben Soni (Alkaben), appeal from the April 18, 2011 Law Division order, and the May 4, 2011 amended order, which granted summary judgment to defendant Township of Woodbridge (Township), and dismissed the complaint with prejudice. The trial judge granted summary judgment based on the weather immunity provision of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3. We reverse and remand for further proceedings.
We derive the following facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion,viewed in a light most favorable to plaintiffs. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
The incident forming the basis of this matter occurred in the underpass of a railroad trestle on Leesville Avenue in Woodbridge. Leesville Avenue is a two-lane street with a curb and gutter. Since at least 1989, the Township has known that the roadway under the overpass floods during heavy rains. Over the years, Township police reported numerous instances of flooding in the underpass, and numerous vehicles becoming stranded in the floodwater there. Many times the police blocked off the underpass on both sides of the roadway because of flooding, and they referred in their reports to the underpass as "the usual spot" for flooding. A police captain noted that when the underpass floods, the water "starts to push the manholes up from the center of the road and floods to about two to three feet" below the train trestle above the underpass. The Township's traffic safety coordinator noted that in "really heavy rains," the floodwater in the underpass would extend out beyond the underpass. In addition, a graduated depth gauge located in the underpass indicated that water levels of five feet and higher have occurred there. Ultimately, the Township erected large signs warning approaching drivers that the road descended thirteen feet, four inches in the underpass, and that the "Underpass Floods During Rain."
At 8:47 a.m. on April 15, 2007, the National Weather Service issued a flood warning for Middlesex County. By that time flooding had already occurred in Woodbridge, and an additional one to three inches of rain were expected to fall by the end of the day. Township police officers were dispatched the morning of April 15, 2007, to inspect the Leesville Avenue underpass. They saw flooding in the underpass, and placed orange traffic cones across both sides of the road just before the underpass.
By 8:00 p.m. on April 15, 2007, a total of approximately four inches of rain had fallen in Woodbridge. At approximately that time, Ankur Soni (Ankur) was driving his father, Niranjankumar Soni, his mother, Alkaben, and his sister, Brijal, in his Toyota RAV4 SUV from Newark Liberty International Airport to their home in Edison via Routes 1 & 9 southbound. Ankur was detoured due to flooding on Routes 1 & 9, and eventually came onto Leesville Avenue. It was dark at the time and raining lightly, and he did not see the warning signs for the underpass as he approached it. He also did not see the traffic cones, which had become submerged in the floodwater, nor did he see high floodwater in the underpass. He stopped for approximately thirty seconds before proceeding into the underpass, where his SUV became submerged and lost power, thereby making the automatic windows inoperable. Water eventually filled the SUV. Ankur pried open the driver's side window far enough to get himself, and his mother and sister out of the car and onto the SUV's roof, but unfortunately, he could not free his father from the car. Ankur saw a bystander, Andrea Yamakaitis, and asked her to call 9-1-1. Rescuers who arrived at the scene were unable to resuscitate the father, and he died from drowning. Yamakaitis, who had approached the underpass from the opposite direction of Ankur, said that there were barricades blocking the underpass on her side of the road, but not the other side.
According to plaintiffs' expert engineer, D. Rowland Lamb, the roadway drops in elevation over thirteen feet through the underpass. This forms a depression creating a "bottom of the bowl" effect for the storm drains in the underpass. There are two storm drains located at the lowest point of the underpass, which are part of the storm sewer system that flows approximately nine hundred feet north to the south branch of the Rahway River. The high water elevation of the south branch is approximately eleven feet. During rainfall creating high water conditions, backwater from the south branch reaches elevations that exceed eleven feet and restrict the capacity of the storm drains in the underpass.
Lamb opined that the underpass was unsafe because the containment of excessively deep water made it hazardous for motorists during heavy rainfalls; the Township knew about the flooding in the underpass during heavy rainfalls and should have closed Leesville Avenue to through traffic on April 15, 2007; the Township violated both the standards set forth in the Manual on Uniform Traffic Control Devices (MUTCD) for temporary traffic control for floods and the Township's police policy and procedures; and the Township should have installed a system for closing the underpass, such as sensors for alerting officials to rising water levels or in-place closing gates with signage. Lamb also opined that traffic cones did not comply with the MUTCD standards for an effective traffic control device and were ineffective in providing a barrier for road closure. The Township should have used Type III barricades with "Road Closed" signs to close Leesville Avenue in advance of the underpass, and its failure to do so constituted a deviation from standards and safe practices.
The Township's traffic safety coordinator acknowledged that when it rains, the storm drains in the underpass get backed up with water, which causes the flooding. The Township's municipal engineer acknowledged that the elevation of the underpass "affect[s] the ability [of] the pipeline to convey the water out." A sergeant from the Township's Traffic Enforcement Unit acknowledged that "[t]he underpass floods due to the fact that the storm sewer . . . feeds directly into the Rahway River," and when it rains heavily, "the underpass actually floods with water from the river flowing backwards in the sewer pipe and into the underpass." The Township's expert engineer opined that the heavy rain on April 15, 2007, raised the Rahway River's water elevation which, in turn, reduced the ability of the sewer system in the underpass to function that day.
The trial judge ultimately granted summary judgment to the Township based on weather immunity under N.J.S.A. 59:4-7, concluding that the weather solely caused the flooding in the underpass. The judge did not address other issues raised on summary judgment regarding the Township's liability for (1) a dangerous condition of public property, N.J.S.A. 59:4-2; (2) failure to provide emergency warning devices, N.J.S.A.59:4-4; (3) a discretionary decision, N.J.S.A. 59:2-3c; (4) allocation of resources, N.J.S.A. 59:2-3d; and (5) failure to provide ordinary traffic signals, N.J.S.A. 59:4-5. This appeal followed.
On appeal, plaintiffs contend, in part, that the judge erred in granting summary judgment based on weather immunity. They argue that they presented evidence establishing that the weather did not solely cause the underpass flooding; rather, the weather and other factors -- the depression of the road and the sewer system allowing water from the Rahway River to backfill the sewer and flood the road -- combined to cause the flooding. We agree.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Coyne v. New Jersey Dep't ofTransp., 182 N.J. 481, 491 (2005); Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 261 (App. Div. 2011), certif. denied, 209 N.J. 98(2012). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brillsupra, 142 N.J. at 536). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's conclusions on legal issues. Zabilowicz v. Kelsey200 N.J. 507, 512-13 (2009).
Under the TCA, there is an underlying presumption of a public entity's immunity unless liability is specified. Manna v. State129 N.J. 341, 350 (1992). However, the public entity bears the burden of proof that a statutory immunity exists. Id. at 351; Kolitch v. Lindedahl100 N.J. 485, 497 (1985). In this case, the Township claims immunity under N.J.S.A. 59:4-7, which provides that a public entity will not be "liable for an injury caused solely by the effect on the use of streets and highways of weather conditions." N.J.S.A. 59:4-7.
In order for a public entity to obtain weather immunity under N.J.S.A. 59:4-7, the injury must have been caused solely by the weather, not by a combination of the weather and another factor. See Mannasupra, 129 N.J. at 350. "If an accident is caused by a factor in addition to the weather, that factor will preclude the applicability of the weather immunity regardless of whether the State is ultimately liable for that additional factor." Ibid.see also Pico v. State116 N.J. 55, 61 (1989); Horan v. State, 212 N.J. Super. 132, 134 (1986); Meta v. Twp. of CherryHill, 152 N.J. Super. 228, 232 (App. Div.), certif. denied75 N.J. 587 (1977); McGowan v. Borough of Eatontown, 151 N.J. Super. 440, 447 (App. Div. 1977).
Here, the evidence established that the underpass flooding was caused by a combination of the rain, the depression of the road, and the sewer system, which allowed water from the Rahway River to backfill the storm drains and flood the underpass. Even defendants' witnesses acknowledged that when it rains heavily, the storm drains in the underpass get backed up with water from the river, which causes the underpass to flood, and the elevation of the underpass affects the ability of the sewer system to convey the water out.
The evidence, viewed in a light most favorable to plaintiffs, established that a combination of the weather and other factors caused the underpass to flood on April 15, 2007. Accepting this evidence as true, and giving plaintiffs all reasonable inferences arising therefrom, which the trial court did not do, we conclude that summary judgment was improvidently granted.
We decline to exercise original jurisdiction to address the additional issues raised on summary judgment, which the court did not address. We remand for the court to consider those issues.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
1 Because the parties share the same last name, we shall refer to them by their first names. In addition, we shall sometimes refer to Brijal and Alkaben collectively as plaintiffs.