school bus driver subject to normal negligence standards Pitcher v Ocean Ride
school bus driver subject to normal negligence standards Pitcher v Ocean Ride
OCEAN RIDE, OCEAN COUNTY BOARD
OF CHOSEN FREEHOLDERS, NINA
ADAM R. BLATCHFORD, JAMES R.
HENSHAW, Ind. and d/b/a
MEN AT WORK LANDSCAPING,
March 24, 2016
Argued March 2, 2016 – Decided
Before Judges Ostrer and Manahan.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-2718-12.
David T. Wheaton argued the cause for appellant (Levinson
Axelrod, P.A., attorneys; Mr. Wheaton, on the brief).
Mathew B. Thompson argued the cause for respondents (Berry,
Sahradnik, Kotzas & Benson, attorneys; Garrick R. Slavick, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0102-14T4
Christianna Pitcher contests a July 25, 2014 order entered by the Law Division
judge granting summary judgment in favor of defendants Ocean Ride, Ocean County
Board of Chosen Freeholders, and Nina Lesniak (the Ocean County defendants). The judge dismissed plaintiff's personal
injury complaint arising from a motor vehicle accident. We reverse.
September 12, 2012, plaintiff filed a complaint alleging negligence against
defendants Adam R. Blatchford and James R. Henshaw (doing business as Men at
Work Landscaping), seeking damages for injuries sustained in a motor vehicle
accident at an intersection partly controlled by a stop sign. An answer was filed on or about October 19,
2012. Plaintiff then filed an amended
complaint alleging negligence on February 4, 2013, naming the Ocean County
defendants. The Ocean County defendants
filed an answer on or about July 18, 2013.
or about June 5, 2014, the Ocean County defendants filed a motion for summary
judgment, which plaintiff opposed. The
remaining defendants also filed a motion for summary judgment. Oral argument on both motions took place on
July 25, 2014. The judge granted
Blatchford and Henshaw's motion because plaintiff's expert report did not
attribute any liability to those defendants. The judge granted the Ocean County
defendants' motion, holding that no reasonable person would find that the
liability of Lesniak exceeded the liability of plaintiff. Plaintiff filed a notice of appeal on
September 4, 2014.
derive the following facts from the summary judgment record. Lesniak is employed by Ocean County as a bus
driver, and was operating a bus within the scope of her employment on September
2, 2011. On that date, Lesniak was
traveling westbound on West Bay Avenue in Barnegat when she brought the bus to
a stop on the shoulder of the road. Lesniak
pulled over prior to passing through an intersection at the corner of Seventh
Avenue and West Bay Avenue. Seventh Avenue
traffic was regulated by stop signs; West Bay Avenue traffic was not. Lesniak explained she stopped where she did
because she observed plaintiff's vehicle approaching the intersection from the
north, had an elderly passenger to drop off on the other side of the
intersection, and required more space to pull over. The shoulder of the road where Lesniak pulled
over was designated as a no parking zone.
The bus, when stopped, was approximately one-to-two car lengths from the
intersection. Lesniak claimed she
activated her four-way flashers during the stop, a claim plaintiff disputed.
the same time that Lesniak was operating the bus, plaintiff was operating her
motor vehicle on Seventh Avenue. Plaintiff stopped at the stop sign at the
intersection of Seventh Avenue and West Bay Avenue. Plaintiff intended to turn left onto West Bay
Avenue but could not observe any traffic approaching from the left because the parked
bus obstructed her vision. She stopped
at the stop sign for approximately one minute to see if the bus would
move. Plaintiff alleged she "inched"
her car forward to see if any traffic was approaching. Lesniak, to the contrary, alleged plaintiff
"shot right out" into the intersection. When plaintiff drove into the intersection, a
truck driven by Blatchford collided with her vehicle. Plaintiff sustained severe injuries as a
result of the accident. Blatchford saw
the vehicle approaching but lost sight of it behind the bus. Although the police were at the post-accident
scene, no motor vehicle summons were issued. Plaintiff's
liability expert, David Benn, performed testing at the intersection and opined
that plaintiff would have had to go more than three feet into West Bay Avenue
in order to observe traffic approaching from the left. Mr. Benn concluded that the location of the
parked bus was the cause of the crash.
Blatchford's expert, Donald K. Eisentraut, reached the same
conclusion. The Ocean County defendants'
experts, Curtis M. Beloy, and Steven M. Schorr, concluded that plaintiff
created the hazard and an unobstructed view of the road could have been
obtained without creating an emergency.
the following points on appeal:
THE JULY 25, 2014 ORDER GRANTING
SUMMARY JUDGMENT TO DEFENDANTS [LESNIAK] AND OCEAN COUNTY SHOULD BE REVERSED
BECAUSE THE PROOFS WEIGHED IN PLAINTIFF'S FAVOR WOULD ALLOW THE JURY TO
REASONABLY FIND IN PLAINTIFF'S FAVOR ON THE ISSUE OF LIABILITY.
A. THE PROOFS WEIGHED IN PLAINTIFF'S
FAVOR ESTABLISH THAT DEFENDANT [LESNIAK] WAS NEGLIGENT FOR ILLEGALLY PARKING
HER BUS AT THE CORNER OF THE INTERSECTING STREET IN A LOCATION WHERE IT
OBSTRUCTED THE VISION OF THE DRIVERS AT THE INTERSECTION.
B. THE PROOFS WEIGHED IN PLAINTIFF'S
FAVOR ESTABLISH THAT DEFENDANT [LESNIAK'S] NEGLIGENCE WAS A PROXIMATE CAUSE OF
WHILE THE JURY MAY FIND THAT THE PLAINTIFF WAS COMPARATIVELY NEGLIGENT,
IT WOULD BE AN IMPROPER FACTUAL DETERMINATION FOR THE COURT TO APPORTION
LIABILITY BETWEEN THE PARTIES AND FIND THAT THE PLAINTIFF WAS MORE AT FAULT
THAN THE DEFENDANT AS A MATTER OF LAW.
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 of 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). The court's inquiry is "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 Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995); see
alsoJolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div.
2007). "At this stage of the
proceedings, the competent evidential materials must be viewed in the light
most favorable to plaintiff, the non-moving party, and [plaintiff] is entitled
to the benefit of all favorable inferences in support of [the]
claim." Bagnana v. Wolfinger,
385 N.J. Super. 1, 8 (App. Div. 2006) (citing R. 4:46-2(c); Brill,
supra, 142 N.J. at 540); see alsoIn re Estate of
Sasson, 387 N.J. Super. 459, 462-63 (App. Div.), certif. denied,
189 N.J. 103 (2006).
We apply the
same standard as the trial court in reviewing the granting of a motion for
summary judgment. Townsend v. Pierre, 221 N.J.
36, 59 (2015). If there is no factual
dispute, and only a legal issue to resolve, the standard of review is de novo
and the trial court rulings "are not entitled to any special
deference." Manalapan Realty,
L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
the conclusion of oral argument, the judge placed his decision on the record:
There is ample room for any driver to pull
into the shoulder area and see down Bay Avenue towards the east which would
have alerted any driver under the circumstances of the approaching
vehicle. Certainly, the size of the
vehicle in question would have been unmistakable. There is a traffic light immediately — within
[one hundred] yards of the intersection of [Seventh] Avenue.
. . . .
[c]ourt cannot say that any reasonable person, given that location, could have
pulled out from the stop sign, angled slightly towards the west to get a clear
view of what would be approaching from the east. The accident would have been avoided. It is not entirely unanticipated when you
travel along the highway thoroughfares in the State of New Jersey, but
sometimes your vision is impeded.
Emergency vehicles, telephone repair vehicles, cable vehicles, utility
companies, road repairs, frequently come into the vision of any motorist. This [c]ourt cannot say that any reasonable
person would find that the liability of the bus driver exceeded the liability of
the plaintiff in leaving the intersection at [Seventh] and Bay Avenue. Accordingly, the [c]ourt grants the motion of
We conclude that, in reaching this
decision, the judge erroneously acted in the role of factfinder by making
findings of fact and liability in matters in dispute between the parties. A "judge's function is not himself [or
herself] to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial." Brill, supra, 142 N.J.
at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,
106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)). The competent evidence must be
viewed in a light most favorable to plaintiff, the non-moving party. Ibid.; R. 4:46-2(c).
The judge reviewed
and weighed the evidence presented and held, "the precipitating cause of
the accident is [plaintiff] driving into the westbound lane of . . . West Bay
Avenue" and reasonable opinions could not differ on that issue. The judge posed whether any reasonable person
"could say that the bus driver was more at fault than the
driver." The judge further held, "[i]f
[plaintiff] would have stopped when she could have seen West Bay Avenue, the
impact would not have happened. She did
not inch out. That is the whole point,
she did not inch out. She just crossed
her fingers and hoped it was safe to go."
In accord with our
standard of review, we find a material issue in dispute to be the operation of
plaintiff's vehicle prior to the accident; specifically whether plaintiff
"inched out" or "shot out" into the intersection. There is also a material issue in dispute regarding
plaintiff's ability to observe vehicle traffic on West Bay Avenue due to the
location of the bus, potentially posing a hazard to her entry into the roadway.
Further, the reconstruction experts for
plaintiff and the Ocean County defendants offered contrary opinions as to the
cause of the accident.
issues of fact in dispute are to be resolved by the jury, Brill, supra,
142 N.J. at 540 ("Credibility determinations will continue to be
made by a jury and not the judge."), as are questions of proximate cause. Komlodi v. Picciano, 217 N.J.
387, 419 (2014). In a negligence action,
"[a]lthough the existence of a duty is a question of law, whether the duty
was breached is a question of fact."
Jerkins v. Anderson, 191 N.J. 285, 305 (2007) (citing Anderson
v. Sammy Redd & Assocs., 278 N.J. Super. 50, 56 (App. Div.
1994), certif. denied, 139 N.J. 441 (1995)). "There can be no doubt that the question
of negligence in each case may properly be left to the jury with the general
instruction . . . of reasonable care under existing circumstances. Questions of proper speed and control of a
vehicle are pre-eminently questions of fact for the jury to
Underwriters Grp. v. Heibel, 386 N.J. Super. 307, 321 (App. Div.
2006) (quoting Stackenwalt v. Washburn, 42 N.J. 15, 24 (1964)).
was more at fault than plaintiff was also within the province of the
factfinder.SeeBoody v. Good Bros., Inc., 31
N.J. Super. 439, 443 (App. Div. 1954) (holding that a jury could find
that a driver negligently parked a van obstructing the view of pedestrians and
approaching drivers), aff’d, 17 N.J. 393 (1955); Carrino v.
Novotny, 78 N.J. 355, 364 (1979) (holding that a jury could
reasonably have concluded that a defendant was negligent in the way its
employee-driver chose to park a van near a traffic light). In negligence actions in which the question of
liability is in dispute, the trier of fact shall determine the amount of
damages recoverable, and the extent (in the form of a percentage) of each
party's negligence. N.J.S.A.
2A:15-5.2; see alsoBrodsky v. Grinnell Haulers, Inc., 181 N.J.
102 (2004); Piccone v. Stiles, 329 N.J. Super. 191, 196 (App.
Div. 2000) ("We believe that it must be left to the jury to determine who
was negligent, and, assuming that comparative fault is found, what appropriate
percentage of negligence should be allocated to each of the parties at
alleged that Lesniak violated N.J.S.A. 39:4-138(e) (forbidding parking
within twenty-five feet of an intersection). The Ocean County defendants, in turn, alleged
that plaintiff violated N.J.S.A. 39:4-144 (requiring a motorist
approaching an intersection to yield to the right of way) and N.J.S.A.
39:4-90 (requiring a motorist with a stop sign to proceed only after yielding
to the right of way). The determination of
those allegations of motor vehicle violations are also matters for the jury. SeeEwing v. Burke, 316 N.J.
Super. 287, 294 (App. Div. 1998) (holding that a trial court committed
plain error by failing to charge the jury to include reference to a relevant
motor vehicle statute and stating "if there is evidence tending to
establish that a vehicle was operated in violation of a motor vehicle statute,
the statutory duty should be charged to the jury . . . .").
our independent review of the motion record and in consideration of controlling
decisions of law, we conclude there existed material facts in dispute in the
motion record that would preclude the grant of summary judgment in favor of the
Ocean County defendants.
next turn to the Ocean County defendants' argument for immunity or at least a
heightened "palpably unreasonable" standard for negligence under the
provisions of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Pursuant to the TCA, a public employee is
liable for an injury caused by his or her acts or omissions to the same extent
as a private person unless there is a specific immunity granted under the
TCA. N.J.S.A. 59:3-1(a) (emphasis
added). Similarly, "[a] public
entity is liable for injury proximately caused by an act or omission of a public
employee within the scope of his employment in the same manner and to the same
extent as a private individual under like circumstances." N.J.S.A. 59:2-2(a); see alsoTice
v. Cramer, 133 N.J. 347, 355 (1993) ("The primary liability
imposed on public entities is that of respondeat superior: when the public
employee is liable for acts within the scope of that employee's employment, so
too is the entity[.]") (emphasis omitted).
The TCA provides
"a public entity is 'immune from tort liability unless there is a specific
statutory provision' that makes it answerable for a negligent act or
omission." Polzo v. Cty. of
Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough of
Wallington, 171 N.J. 3, 10 (2002)).
In examining whether a governmental entity is liable, "courts
should employ an analysis that first asks whether an immunity applies and if
not, should liability attach." Bligen
v. Jersey City Hous. Auth., 131 N.J. 124, 128 (1993) (emphasis omitted)
(citation and internal quotation marks omitted). Saliently, the public entity "has the
burden to plead and prove [its] immunity under the TCA." Leang v. Jersey City Bd. of Educ., 198
N.J. 557, 582 (2009) (citing Kolitch v. Lindedahl, 100 N.J.
485, 497 (1985)).
In their answer to
the complaint, the Ocean County defendants invoke various sections of the TCA
as affirmative defenses supporting their claim of immunity. None of those sections are applicable
here. See, e.g., N.J.S.A.
59:4-6 (declaring immunity for injuries caused by the plan or design of public
property); N.J.S.A. 59:9-1 to -7 (providing procedural guidance for suit
and judgment in TCA matters). The Ocean
County defendants' brief does not point to a specific portion of the TCA
providing immunity in this matter. Public
entities have the burden of pleading and proving absolute or qualified immunity
under the TCA. Here, the Ocean County
defendants have failed to meet their burden.
SeeLeang, supra, 198 N.J. at 582; N.J.S.A.
59:3-1(a); N.J.S.A. 59:2-2.
The Ocean County
defendants cite N.J.S.A. 59:4-2 in support of the contention that their
actions should be governed by the heightened "palpably unreasonable"
negligence standard. However, N.J.S.A.
59:4-1 to -10 deals with public entities' liability for dangerous conditions of
a public property.
59:4-2 states that a public entity is liable if a plaintiff establishes: (1)
public property was in a dangerous condition at the time of the injury; (2) the
injury was proximately caused by the dangerous condition; (3) the dangerous
condition created a reasonably foreseeable risk of the kind of injury which was
incurred; and (4) a negligent or wrongful act or omission of a public employee
created the dangerous condition, or a public entity had actual or constructive
notice of the condition. Additionally, a
public entity is not liable for a dangerous condition of its property if
"the action the entity took to protect against the condition or the failure
to take such action was not palpably unreasonable." Ibid.
heightened "palpably unreasonable" standard applies to dangerous
conditions of public property, and is intended to comport with the principles
of liability used by the courts for local public entities in their capacity as
landowners. Margolis & Novack, Claims
Against Public Entities, 1972 Task Force Comment on N.J.S.A. 59:4-2
(2016). Although the statute has been
broadly applied, it is nevertheless limited to instances where a dangerous
condition of public property itself is at issue. Ibid.; Ogborne v. Mercer Cemetery
Corp., 197 N.J. 448, 459-60 (2009).
The Ocean County
defendants' reliance on Polyard v. Terry, 148 N.J. Super. 202,
216 (Law Div. 1977), and Wooley v. Bd. of Chosen Freeholders, 218 N.J.
Super. 56, 61 (App. Div. 1987), is misplaced. The plaintiff in Polyard brought
action against the State for the dangerous condition of the roadway where a
motor vehicle accident occurred. Polyard
v. Terry, 160 N.J. Super. 497, 503 (App. Div. 1978), aff’d o.b.,
79 N.J. 547 (1979). Similarly,
the plaintiff in Wooley, supra, 218 N.J. Super. at 58-59,
brought action against the State based upon a failure to maintain an effective
barrier to protect drivers from an icy and dangerous road condition. In Holloway v. State, 125 N.J. 386,
390 (1991), the plaintiff alleged the State negligently maintained a dangerous
condition on its property when a prison inmate fractured her neck diving into a
pool. These cases implicate a public
entity's liability for dangerous property or road conditions and those
entities' discretionary actions pursuant to N.J.S.A. 59:4-2 and 59:2-3.
employee is not liable for an injury resulting from the exercise of judgment or
discretion vested in him [or her]."
N.J.S.A. 59:3-2(a); see alsoN.J.S.A. 59:2-3(a)
(public entity parallel containing the same language). The immunity afforded under these sections,
however, do not exonerate negligence arising out of acts or omissions of a
public employee when executing ministerial functions. N.J.S.A. 59:2-3; N.J.S.A.
A public entity is
not liable for the exercise of discretion when, in the face of competing
demands, it determines whether and how to utilize or apply existing resources,
including those allocated for equipment, facilities and personnel unless a
court concludes that the determination of the public entity was palpably
unreasonable. Nothing in this section shall exonerate a public entity for
negligence arising out of acts or omissions of its employees in carrying out
their ministerial functions.
"[The] subsection incorporates
the thesis that once resources have been provided a public entity may be liable
for its determination of priorities in the application of such resources if
that determination is palpably unreasonable." Margolis & Novack, supra, 1972
Task Force Comment on N.J.S.A. 59:2-3(d). "Broadly speaking [N.J.S.A.
59:2-3] provides that there shall be no liability for the decision-making
process of public entities." Id.
at comment 1 to N.J.S.A. 59:2-3.
In Lopez v. City of Elizabeth, 245 N.J. Super. 153, 164
(App. Div. 1991), we stated that "operational governmental decisions to
devote existing resources to one activity at the expense of another are immune
unless palpably unreasonable" pursuant to N.J.S.A. 59:2-3(d). "Subsection [d] creates a limited
immunity for those discretionary activities most like ministerial or 'operational'
acts, i.e. the exercise of discretion when, in the face of competing demands,
an entity determines whether and how to apply resources already
committed." Margolis & Novack, supra,
comment 5 on N.J.S.A. 59:2-3(d); see alsoBrown v. Brown,
86 N.J. 565, 577 (1981); Civalier by Civalier v. Estate of Trancucci,
138 N.J. 52, 69 (1994).
Henebema v. S. Jersey Transp. Auth., 430 N.J. Super. 485, 502-03
(App. Div. 2013), aff’d, 219 N.J. 481 (2014), we distinguished
between discretionary activities and ministerial functions. Discretionary activities are subject to the
heightened "palpably unreasonable" standard, while ministerial
functions are examined under ordinary negligence principles. Id. at 503; Henebema, supra,
219 N.J. at 490. "An act is
'ministerial' if it is 'one which a person performs in a given state of facts
in a prescribed manner in obedience to the mandate of legal authority, without
regard to or the exercise of his [or her] own judgment upon the propriety of
the act being done.'" Id. at
502 (quoting Morey v. Palmer, 232 N.J. Super. 144, 151 (App. Div.
1989)); Ritter v. Castellini, 173 N.J. Super. 509, 513-514 (Law
the heightened "palpably unreasonable" standard set forth in N.J.S.A.
59:2-3(d) is inapplicable. The statute
prescribes a heightened standard in matters involving the allocation of
resources where demands are competing, Brown, supra, 86 N.J.
at 579 — it does not apply to corporeal acts or a public employee's basic
individual labor. Lesniak's actions in
her capacity as a bus driver at the time of the accident did not relate to the
allocation of resources or the maintenance of property. Rather, Lesniak's performance as a bus driver
was carried out "in a prescribed manner in obedience to the mandate of
legal authority, without regard to or the exercise of [her] own judgment upon
the propriety" of the manner of her operation of the bus. Henebema, supra, 430 N.J.
Super. at 502. In accord with Henebema
and N.J.S.A. 59:2-2(a), the Ocean County defendants are subject to
liability under normal negligence standards.
Reversed and remanded. We do not retain jurisdiction.
Although she is also referred to as Nina Antonish in the record due to a name
change subsequent to the filing of the complaint, we refer to her throughout as
Lesniak — the name used in the caption.
Another motorist, Jeff Gamble, was driving behind Blatchford and observed
plaintiff's vehicle pulling into the intersection.
Model Jury Charge (Civil), 5.30G, "Duty of Automobile Driver to
Make Observations" (1983), is also instructive, as it provides model jury
charges on the duty of automobile drivers to make observations, including where
a motorist's view is obstructed at an intersection.