The opinion
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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4554-16T3
DANIEL MATTOS, as Executor for the
ESTATE OF CARY R. MATTOS, and
DANIEL MATTOS, Individually,
Plaintiffs-Respondents,
v.
PVT. PETER S. HOTALEN – AMERICAN
LEGION POST 157; MARK F. SUSSMAN;
FLAVIAN SIMONELLI; PATRICIA SIMONELLI
and THOMAS K. ZOSCHAK,
Defendants,
and
STATE OF NEW JERSEY and STATE OF
NEW JERSEY DEPARTMENT OF
TRANSPORTATION,
Defendants-Appellants.
___________________________________
Argued February 28, 2018 - Decided August 22, 2018
Before Judges Fuentes, Manahan, and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Docket No.
L-0328-14.
Robert J. McGuire, Deputy Attorney General,
argued the cause for appellants (Gurbir S.
Grewal, Attorney General, attorney; Melissa
Dutton Schaffer, Assistant Attorney General,
of counsel; Robert J. McGuire, on the brief).
Jacqueline DeCarlo argued the cause for
respondent Daniel Mattos (Individually)
(Hobbie, Corrigan & Bertucio, PC, attorneys;
Norman M. Hobbie and Jacqueline DeCarlo, of
counsel; Jacqueline DeCarlo and Justin Lee
Klein, on the brief).
Gill & Chamas, LLC, attorneys for respondent
Estate of Cary Mattos, join in the brief of
respondent Daniel Mattos.
PER CURIAM
The dispositive legal issue in the appeal concerns the
immunity provided to public entities under the Tort Claims Act
(TCA), N.J.S.A. 59:1-1 to -12-3. At all times relevant to this
case, the State Department of Transportation (DOT) owned a tract
of land located on Route 206, in Frankford Township. The DOT
property is located across from Pvt. Peter S. Hotalen – American
Legion Post 157 (American Legion). On March 15, 2014, plaintiff
Daniel Mattos and his wife, decedent Cary Mattos,1 parked their
car on the DOT property to attend a St. Patrick's Day event held
at the American Legion. Cary was struck and killed by a car driven
by defendant Thomas K. Zoschak as she attempted to cross Route 206
to return to her parked car.
1
In the interest of clarity, we will refer to parties who have
the same last name by their first name when necessary. We do not
intend any disrespect.
2 A-4554-16T3
Plaintiffs filed this civil action against Zoschak, the
American Legion, the DOT, and other individuals under various
theories of liability. With respect to the DOT, plaintiffs claim
the DOT knowingly permitted the American Legion to use the
unimproved lot as an "over-flow" parking lot.2 Plaintiffs argued
this "created a dangerous, hazardous and unsafe condition [on the]
property" because the DOT did not provide "warning[] [signs],
crossing guards, safety lighting [or] patrol officers to assist
in [pedestrian] crossing of U.S. Highway 206," or require the
American Legion to provide these safety measures.
The DOT moved for summary judgment before the Law Division,
arguing it was immune from liability under N.J.S.A. 59:2-4 of the
TCA, which provides: "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." The DOT argued it was not legally obligated to
prevent the unauthorized use of public property.
Plaintiffs argued the DOT was liable under N.J.S.A. 59:4-2,
because they can prove that: (1) the property was in a dangerous
condition at the time of Cary's death; (2) her death was
proximately caused by the dangerous condition; (3) a public
employee created the dangerous condition or had actual or
2
The American Legion has onsite parking.
3 A-4554-16T3
constructive knowledge of the condition within sufficient time
before the accident to have taken measures to protect Cary against
this dangerous condition; and (4) the DOT's failure to act under
these circumstances was palpably unreasonable.
The motion judge accepted plaintiffs' argument regarding the
applicability of N.J.S.A. 59:4-2. Viewed through the lens of
these statutory standards, the motion judge found 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 said dangerous
condition, and whether [the DOT's] failure to remediate the danger
fell below the appropriate standard of care for a property owner."
By leave granted, the DOT now argues that the motion judge
erred as matter of law in failing to dismiss plaintiffs' claims
pursuant to N.J.S.A. 59:2-4. Alternatively, the DOT argues that
even if N.J.S.A. 59:4-2 applies, plaintiffs did not present
sufficient competent evidence that the property was in a dangerous
condition at the time of the accident. We review the denial of a
motion for summary judgment de novo, without affording any
deference to the legal analysis of the motion judge. Nicholas v.
Mynster, 213 N.J. 463, 478 (2013). We apply the standards codified
in Rule 4:46-2(c) and review all of the facts in the appellate
record in the light most favorable to plaintiffs as the non-moving
4 A-4554-16T3
party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995). Mindful of these standards, we conclude the motion judge
erred in applying the statutory factors in N.J.S.A. 59:4-2, and
dismiss plaintiffs' claims against the DOT as a matter of law
pursuant to N.J.S.A. 59:2-4. Our legal analysis is guided by the
following salient facts.
On March 15, 2014, Daniel Mattos and his wife Cary Mattos
drove their car to the American Legion located on Route 206 in
Frankford Township to attend a St. Patrick's Day celebration. The
Mattos and their friends, Vivian Hill and William Hill, parked
their cars 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 two lane road with a posted speed limit of fifty miles
per hour. There is no pedestrian crosswalk to allow those who
parked their car on this property to cross Route 206 safely.3 The
DOT maintains Route 206.
Plaintiffs and the Hills left the American Legion at
approximately 10:30 p.m. When Cary and Vivian attempted to cross
Route 206, they were struck by a car driven by defendant Thomas
S. Zoschak. Immediately after the accident, Zoschak fled the
scene without making any effort to stop his car. Two days later,
3
The State Police Trooper who authored the accident report
stated: "There were overhead street lights in the area, however,
they would randomly turn off as I was at the scene."
5 A-4554-16T3
Zoschak surrendered himself to the State Police. Cary Mattos
sustained fatal head injuries and severe injuries to her lower
extremities. She died at the scene and was officially pronounced
dead at Morristown Medical Center. State Police North Star Medivac
transported Vivian Williams to Morristown Medical Center, where
she was treated for a fractured tibia of her right leg.
The State Police accident investigation report contains the
following account of how the accident occurred:
Both couples were leaving the [American
Legion] building and attempted to cross [Route
206] in order [to] retrieve their vehicle,
which was parked on the grass area off the
northbound side [of Route 206]. Mr. Mattos
explained to me that prior to crossing [Route
206] they noticed a pair of head lights in the
distance and felt they could cross the highway
safely. Mr. Mattos and Mr. Hill were crossing
the road and Mrs. Mattos and Mrs. Hill were
following close behind them. The next thing
Mr. Mattos observed through his peripheral
vision was his wife's body flying in the air
before landing near the curb on [Route 206].
Mr. Mattos ran to his wife and yelled for
someone to call 911.
The State Police reached the following conclusion with respect to
the cause of the accident:
[T]he cause of this crash can be attributed
to [Cary] and [Vivian] failing to yield the
right of way to [Zoschak's car] when crossing
the roadway. The limited amount of overhead
lighting, positive grade, and the dark
clothing worn by [Cary] and [Vivian] may have
all contributed to the inability of [Zoschak]
to perceive [Cary] and [Vivian] in the
roadway. Due to [Zoschak] fleeing the scene
6 A-4554-16T3
of the crash, it is unknown to what extent his
physical condition may or may not have
contributed to the cause of this collision.
The DOT property is located at the intersection of Route 206
and Main Street. It is an unpaved, grassy lot without any
designated means of egress and ingress for vehicular or pedestrian
traffic. There are no barriers or fences blocking access to the
property. On the side of the property adjacent to Main Street,
there is a worn down patch that has been used as an unauthorized
entrance and exit onto the property. The property extends to the
shoulder of Route 206, and is at times used as a right-of-way by
the DOT or the State Police.
At the time of the accident, there were several yellow chevron
signs on the border of the property, adjacent to Main Street, to
warn oncoming traffic of the bend in the road. A photo dated
August 24, 2009, shows four yellow chevron warning signs bordering
the property, facing out towards Main Street. From this record,
we cannot determine how many chevron signs were on the property
at the time of the accident.
DOT records show employees had been to the property to repair
damaged chevron signs, and to replace a missing chevron sign. At
the time of the accident, there were several signs placed at the
border of the property to guide and control motor vehicle traffic;
there were two signs to inform motorists the direction for U.S.
7 A-4554-16T3
Route 206 north and south, a stop sign at the intersection to
control motor vehicle traffic, and a sign for County Route 630.
At his deposition, DOT Investigator William J. Hayden explained
that it was illegal for persons attending events held at the
American Legion to use the property as a parking lot. The DOT did
not have "No Trespassing" signs on the property at the time of the
accident.4
Based on this record, plaintiffs' theory of liability is
predicated on the DOT's failure to take affirmative measures to
prevent people from improperly using this lot as a de facto parking
area for events held at the American Legion. For purposes of our
analysis, we will assume that plaintiffs can show that the DOT had
actual or constructive knowledge that: (1) the property was being
used as a de facto parking lot; (2) people who used the lot for
parking were thereafter crossing Route 206 to attend events at the
American Legion; and (3) crossing Route 206 under these
circumstances exposed pedestrians to a high risk of being struck
by vehicular traffic.
4
The DOT posted a "No Trespassing" sign after the accident and
added additional chevron warning signs directly onto the worn down
section of land, blocking public access through this part of the
property. These subsequent remedial measures are not admissible
to establish negligence. N.J.R.E. 407.
8 A-4554-16T3
The Legislature has declared, as a matter of public policy,
"that public entities shall only be liable for their negligence
within the limitations of this act and in accordance with the fair
and uniform principles established herein. All of the provisions
of this act should be construed with a view to carry out the above
legislative declaration." N.J.S.A. 59:1-2. In furtherance of
this public policy, "[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." N.J.S.A. 59:2-4 (emphasis added).
Our Supreme Court's decision in Lee v. Brown, 232 N.J. 114
(2018) is the most recent case that has examined the question of
liability for public entities under the TCA. In Lee, a fire
consumed a multifamily building located in the City of Paterson,
causing the death of four residents and injuring several others
occupants. Lee, 232 N.J. at 118. The parties affected by this
tragedy filed several civil actions against a number of private
parties and public entities. Id. at 119. As framed by the Court,
"the question arose whether the City and its electrical inspector
. . .[,] alleged by the plaintiffs to be at least partially at
fault for the fire[,] are entitled to qualified or absolute
immunity under the TCA, N.J.S.A. 59:3-3, -5, or -7." Ibid. The
following facts informed the Court's legal analysis.
9 A-4554-16T3
Approximately six months before the fire, a City Fire
Department inspector responded to the building to investigate the
source of "smoke coming from a boiler." Id. at 120. The inspector
"discovered improper wiring in the electrical panels in the
basement and notified the City's electrical department that the
issue required further inspection." Ibid. Two days later, the
City's electrical inspector followed up on the Fire Department's
referral and inspected the building's electrical "panels and
determined that the wiring did not comply with the building code."
Ibid. The electrical inspector photographed the faulty electrical
panels and told the building's owner "that the wiring was extremely
dangerous." Lee, 232 N.J. at 120.
The next day, the electrical inspector issued a "Notice of
Violation and Order to Terminate." Ibid. The property owner did
not heed the warning and did not take any action to correct the
electrical wiring. Ibid. Three months later, the City sent the
owner a "Notice and Order of Penalty," that cited "specific
violations of the Uniform Construction Code Act and various
regulations." Ibid. When the electrical inspector returned to
the building one month later, the owner told him that she had not
made any of the repairs identified in the Notice of Violation.
Ibid. The inspector told the owner to hire an electrician and
complete all of the repairs within two weeks. Ibid. The inspector
10 A-4554-16T3
also "directed" the owner to notify him when the electrician
arrived. Lee, 232 N.J. at 120.
In the report filed to document this encounter with the owner,
the inspector misrepresented "that he had re-inspected the
wiring." Ibid. In fact, the inspector merely "relied on [the
owner's] representation that the issue had not been corrected."
Ibid. According to the inspector, he met with an employee of the
City's Community Improvements Department, showed her the
photographs that depicted the faulty electrical wires, and "told
her something had to be done to remedy the problem." Ibid.
According to electrical inspector, the City's policy "required him
to notify his direct supervisor . . . of an imminent hazard and
. . . [his supervisor] would ultimately determine whether to shut
off the power." Id. at 120-121.
This bureaucratic ineptitude failed to produce any results,
and the dangerous condition created by the building's defective
electrical wiring remained unaddressed. Approximately one month
after the electrical inspector was last at the site, "the faulty
wiring caused a fire at the . . . property claiming the lives of
four residents and injuring several others." Id. at 121.
Against these facts, a unanimous Supreme Court held:
The critical causative conduct in this case
was [the electrical inspector's] failure to
contact [his supervisor] and secure an
emergency power shut-off or to seek relief in
11 A-4554-16T3
court, not any affirmative action to enforce
the law. The fire is alleged to have been
caused by the faulty wiring on the electrical
panels. It was not the result of any
corrective action taken by [the electrical
inspector]. Like the cessation of court
proceedings in [Bombace v. City of Newark, 125
N.J. 361 (1991)], [the electrical inspector's]
omission, not any action taken by him, allowed
the problem to linger. Under our
interpretation of the TCA in Bombace, [the
electrical inspector's] prior conduct of
inspecting and issuing notices of violation
is not sufficient to subject him to liability.
The failure to enforce the law is absolutely
immune from liability under N.J.S.A. 59:3-5.
Further, as in Bombace, the victims of the
tragic fire here "would at least have a
principal wrongdoer from whom to seek
redress." There is no dispute that the City's
liability is conditioned on that of [the
electrical inspector's], and thus the City is
entitled to absolute immunity as well.
[Lee, 232 N.J. at 129 (emphasis in original)
(quoting Bombace, 125 N.J. at 372).]
Here, plaintiffs seek to hold the DOT liable based on its
failure to prevent the public from using its land as a parking
lot. Stated differently, plaintiffs argue the DOT is liable for
plaintiffs' misuse of public property based on the DOT's failure
to place "No Trespassing" signs on the property, or surround the
property with some kind of parameter fence. Plaintiffs also argue
the DOT should have facilitated the misuse of its property by
creating a pedestrian crossway on Route 206 and posting police
officers to control vehicular traffic every time the American
Legion held an event that requires additional parking.
12 A-4554-16T3
Plaintiffs' cause of action against the DOT would have a
modicum of substantive merit if Cary's death was proximately caused
by a dangerous condition located on the property itself. Here,
however, Cary and Vivian voluntarily decided to cross Route 206
at approximately 10:30 p.m., wearing dark clothing, and in an area
of the road where the overhead lighting provided intermittent
illumination. Plaintiffs' arguments imposing an affirmative
responsibility on the DOT to facilitate the misuse of its property
lacks sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
In our view, the facts the Court confronted in Lee were far
more compelling from the perspective of the plaintiffs. Yet the
Court decisively found the public employees and their public entity
employer entitled to absolute immunity under the TCA. We recognize
that in Lee, the Court's reasoning was guided by N.J.S.A. 59:3-5,
which provides: "[a] public employee is not liable for an injury
caused by his adoption of or failure to adopt any law or by his
failure to enforce any law." (Emphasis added). Here, the DOT
seeks the immunity under N.J.S.A. 59:2-4, which provides: "[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." (Emphasis
added). The Court's reasoning in Lee applies with equal force
13 A-4554-16T3
here, entitling the DOT to absolute immunity under N.J.S.A. 59:2-
4.
We thus reverse the order of the Law Division denying the
DOT's motion for summary judgment and dismiss with prejudice all
claims made by plaintiffs against the DOT under N.J.S.A. 59:2-4
of the TCA.
Reversed and remanded. We do not retain jurisdiction.
14 A-4554-16T3