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Sunday, April 24, 2016

school bus driver subject to normal negligence standards Pitcher v Ocean Ride

school bus driver subject to normal negligence standards Pitcher v Ocean Ride







HENSHAW, Ind. and d/b/a

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).



                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-0102-14T4
Plaintiff 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).[1]  The judge dismissed plaintiff's personal injury complaint arising from a motor vehicle accident.  We reverse.
            On 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.
            On 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.[2]  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.
            We 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.  
            At 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.[3]  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.
Plaintiff raises the following points on appeal:




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 also Jolley 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 also In 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).
            At 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. 

. . . .

            The [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 Ocean County.

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. 
These material 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 determine."  Universal Underwriters Grp. v. Heibel, 386 N.J. Super. 307, 321 (App. Div. 2006) (quoting Stackenwalt v. Washburn, 42 N.J. 15, 24 (1964)).
Whether Lesniak was more at fault than plaintiff was also within the province of the factfinder.[4]  See Boody 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 also Brodsky 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 fault.").
Moreover, plaintiff 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.  See Ewing 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 . . . .").
Predicated upon 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.
            We 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 TCAN.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 also Tice 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.  See Leang, 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. 
N.J.S.A. 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. 
However, the 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.
"A public 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 also N.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. 59:3-2. 
N.J.S.A. 59:2-3(d) states:
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.

[(emphasis added).]

"[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 also Brown v. Brown, 86 N.J. 565, 577 (1981); Civalier by Civalier v. Estate of Trancucci, 138 N.J. 52, 69 (1994).
            In 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 Div. 1980).
            Accordingly, 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.

[1] 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.
[2] Plaintiff does not appeal this order.
[3] Another motorist, Jeff Gamble, was driving behind Blatchford and observed plaintiff's vehicle pulling into the intersection.
[4] 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.