JENNIFER BUDDY VS. JONATHAN E. KNAPP CORRINE BUDDY VS. JONATHAN E. KNAPP DAMIEN CONNEEN VS. STATE OF NEW JERSEY (L-1037-16, L-1046-16, and L-1049-16, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4339-18

A-4344-18

A-4492-18

JENNIFER BUDDY,

Plaintiff-Appellant,

APPROVED FOR PUBLICATION

v.

August 17, 2021

JONATHAN E. KNAPP, APPELLATE DIVISION

COUNTY OF ATLANTIC,

and BOROUGH OF FOLSOM,

Defendants,

and

STATE OF NEW JERSEY,

and WAWA, INC.,

Defendants-Respondents.

_____________________________

CORRINE BUDDY, GENERAL

ADMINISTRATRIX AND

ADMINISTRATRIX AD

PROSEQUENDUM FOR THE

ESTATE OF LOUIS J.

BUDDY, JR., deceased,

Plaintiff/Appellant-

Third Party-Defendant,

v.

JONATHAN E. KNAPP,

COUNTY OF ATLANTIC,

and BOROUGH OF FOLSOM,

Defendants,

and

STATE OF NEW JERSEY,

and WAWA, INC.,

Defendants/Third-Party

Plaintiffs-Respondents.

_____________________________

DAMIEN CONNEEN,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

NEW JERSEY DEPARTMENT

OF TRANSPORTATION,

and WAWA, INC.,

Defendants-Respondents,

and

ADAMUCCI ASSOCIATES, LLC,

Defendant.

_____________________________

Argued October 26, 2020 – Decided August 17, 2021

Before Judges Sabatino, Gooden Brown, and

DeAlmeida.

A-4339-18

2

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, Docket Nos.

L-1037-16, L-1046-16, and L-1049-16.

Ernest L. Alvino argued the cause for appellant

Jennifer Buddy in No. A-4339-18 (Hoffman DiMuzio,

attorneys; Ernest L. Alvino and Ryan S. Hoffman, on

the joint briefs).

Anthony Granato argued the cause for appellant

Corrine Buddy, General Administratrix and

Administratrix Prosequendum for the Estate of Louis

J. Buddy, Jr., in No. A-4344-18 (Jarve Kaplan Granato

Starr, LLC, attorneys; Anthony Granato, on the joint

briefs).

Andrew J. Rossetti argued the cause for appellant

Damien Conneen in No. A-4492-18 (Rosetti &

Devoto, PC, attorneys; Andrew J. Rossetti and

Anthony J. Medori, of counsel and on the briefs).

Katherine Herr Solomon (Mauro Lilling Naparty,

LLP) of the New York bar, admitted pro hac vice,

argued the cause for respondent WaWa, Inc., in No.

A-4339-18, No. A-4344-18, and No. A-4492-18

(Mauro Lilling Naparty, LLP, attorneys; Caryn L.

Lilling, on the briefs).

Robert McGuire, Deputy Attorney General, argued the

cause for respondents State of New Jersey and New

Jersey Department of Transportation in No. A-4339-

18, No. A-4344-18, and No. A-4492-18 (Gurbir S.

Grewal, Attorney General, attorney; Melissa H. Raksa,

Assistant Attorney General, of counsel; Michael R.

Sarno, Deputy Attorney General, on the briefs).

The opinion of the court was delivered by

DeALMEIDA, J.A.D.,

A-4339-18

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These appeals, which we consolidate solely for the purposes of this

opinion, arise from two motor vehicle accidents that occurred about a year

apart in approximately the same location under similar circumstances. In both

instances, a driver traveling westbound on Route 322 in Folsom Borough made

an illegal left turn in the direction of one of two driveway entrances to a

WaWa convenience store and struck a motorcycle traveling eastbound on the

highway. In the first accident, the motorcycle driver was killed and his wife,

who was a passenger, seriously injured. In the second accident, the

motorcycle driver was seriously injured. The injured parties and the estate of

the decedent filed suits against the entity that owns the convenience store and

the State, which owns the highway and the land on which the store's driveway

entrances are situated, alleging a number of claims sounding in negligence.

Plaintiffs appeal orders of the Law Division granting summary judgment

to defendants. The court concluded that the convenience store owner did not

owe a duty of care to the injured parties and, further, that the State is immune

from plaintiffs' claims under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to

13-10. Plaintiffs also appeal an order denying their motion to consolidate their

complaints. We affirm.

A-4339-18

4

I.

Defendant WaWa, Inc. (WaWa) owns and operates a convenience store

on Route 322, also known as Black Horse Pike, in Folsom at the intersection

of Cains Mill Road. The intersection is controlled by a traffic signal. At the

location of the store, Route 322 is a four-lane State highway with two

eastbound and two westbound lanes separated by two sets of solid double

yellow lines. The speed limit is fifty-five miles per hour.

The store is located on the eastbound side of the highway and is east of

the intersection. There are two driveway entrances to the store's parking lot on

the eastbound side of the highway. It is illegal for westbound vehicles to make

a left turn and cross the double yellow lines and the eastbound lanes to access

the driveway entrances to the WaWa. See N.J.S.A. 39:4-82.1 ("[w]henever

any highway has been divided into two roadways by leaving a[] . . . clearly

indicated dividing section so constructed so as to impede vehicular traffic,

every vehicle shall be driven only upon the right-hand roadway and no vehicle

shall be driven over [or] across . . . any such dividing . . . section, except

through an appropriate opening . . . or at a cross over or intersection

established by public authority.").

Approximately four cars east of the WaWa, on the other side of the

highway, a vehicle traveling westbound encounters the entrance to a jug

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handle. The jug handle allows vehicles to navigate the Cains Mill Road

intersection with Route 322. The westbound driver can use the jug handle to

enter Cains Mill Road and, when the light permits, cross Route 322 and turn

eastbound on the highway, where, a few car lengths from the intersection the

driver can access the WaWa driveway entrances. 1

When the collisions occurred, there was a sign on the westbound side of

Route 322 east of the WaWa and near the entrance to the jug handle stating,

"ALL TURNS FROM RIGHT LANE." The sign is intended to restrict vehicle

movements to prevent left turns across the highway at and before the

intersection with Cains Mill Road.

The WaWa driveway entrances were constructed in 1969-1970 and are

in the State's right-of-way. It is unclear if a permit was issued for their

construction. However, the driveway entrances are considered to have been

constructed in accordance with DOT regulations by virtue of N.J.A.C. 16:47 -

8.3(a) ("[a]ll driveways and streets in existence prior to September 12, 1992,

shall be considered grandfathered and to have been constructed in accord ance

with the provisions of this chapter, if no permit was issued."). WaWa is not

1

The WaWa parking lot also has a driveway entrance off Cains Mills Road, a

two-lane road with a break in the yellow lines that allow a vehicle approaching

the store from the intersection with Route 322 to make a left turn into the

parking lot. This provides a second method for westbound traffic on Route

322 to safely enter the parking lot.

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6

authorized to modify the driveway entrances or place any signage regulating

traffic without permission from the State.

On May 17, 2014, defendant Jonathan E. Knapp was operating a pick-up

truck westbound on Route 322. Knapp attempted to make an illegal left turn

from the westbound lanes of the highway into one of the WaWa driveway

entrances. As he accelerated to cross the eastbound lanes, Knapp struck an

eastbound motorcycle operated by Louis J. Buddy, Jr. Plaintiff Jennifer

Buddy, Louis's wife, was a passenger on the motorcycle. 2 Both were ejected

from the motorcycle. Jennifer sustained multiple injuries and was flown by

helicopter to a trauma center for treatment. Louis was pronounced dead at the

scene. The crash occurred in the eastbound lanes of the highway.

Knapp was issued motor vehicle summonses for careless driving,

N.J.S.A. 39:4-97, and making an improper turn across a divided highway,

N.J.S.A. 39:4-82.1. He acknowledged his awareness at the time of the

accident of the jug handle two to four car lengths east of where he turned. He

stated, however, that he thought it was permissible to make a left turn into any

operating business.

2

Because the Buddys share a last name, we refer to them by their first names.

No disrespect is intended.

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Nearly a year later, on May 5, 2015, Angelina Casella was operating a

car westbound on Route 322. Casella attempted to make an illegal left turn to

enter the other driveway entrance of the WaWa. A video surveillance

recording shows Casella's vehicle in the eastbound lane when it was struck by

an eastbound motorcycle operated by plaintiff Damien Conneen. Conneen was

thrown from the motorcycle as a result of the crash and sustained serious

injuries. Casella was issued motor vehicle summonses for careless driving,

N.J.S.A. 39:4-97, and making an improper turn across a divided highway,

N.J.S.A. 39:4-82.1. Neither Knapp nor Casella identified any aspect of the

driveway entrances that induced them to attempt to make their illegal turns

across opposing highway traffic. 3

On May 13, 2016, Jennifer filed a complaint in the Law Division naming

Knapp, the State, and Wawa as defendants. On the same date, plaintiff Corrine

Buddy, Administratrix for Louis's Estate (the Estate), filed a complaint in the

3

Plaintiffs and the State submitted briefs stating that Knapp and Casella were

traveling eastbound, the motorcycles were traveling westbound, and the store

is located on the westbound side of the highway. WaWa's brief, the trial court

opinion, police reports, and expert reports in the record indicate Knapp and

Casella were traveling westbound, the motorcycles were traveling eastbound,

and the store is located on the eastbound side of the highway. We proceed on

the assumption that the directions of travel and location of the store were

inadvertently switched in the briefs submitted by plaintiffs and the State.

A-4339-18

8

Law Division naming Knapp, the State and WaWa as defendants. 4 The trial

court consolidated the two Buddy complaints. On May 16, 2016, Conneen

filed a complaint in the Law Division naming the State and WaWa as

defendants.5

Plaintiffs allege Wawa was negligent in creating unsafe driveway

entrances to its parking lot and in failing to maintain the premises in a safe

condition for the welfare and protection of its commercial invitees. They

allege WaWa knew or should have known that a dangerous condition –

driveway entrances that attract illegal left turns from Route 322 – existed in

the State's right-of-way and posed a danger to its customers. Plaintiffs allege

WaWa should have redesigned its parking lot entrances to discourage left

turns, notified the State of the dangerous condition, and/or warned its

customers of the dangers of making an illegal left turn from the westbound

lanes of the highway.

Plaintiffs allege the State was negligent in creating an unsafe condition

by failing to properly maintain the roadway in a safe condition and to exer cise

4

Jennifer and the Estate also named Atlantic County and Folsom Borough as

defendants. The claims against those defendants are not before the court.

5

Conneen also named the State Department of Transportation (DOT) as a

defendant. We refer to the State and DOT collectively as "State." Conneen

alleged claims against defendant Adamucci Associates that are not before us.

A-4339-18

9

proper control, supervision, maintenance, repair, and general safekeeping of

the roadway, despite the fact that it knew or should have known that a

dangerous condition existed in the roadway and in its right-of-way. Plaintiffs

seek compensatory and punitive damages for their injuries.

Conneen moved pursuant to Rule 4:38-1(a) to consolidate his complaint

with the Buddy complaints. Jennifer and the Estate joined his motion.

On March 6, 2019, the trial court issued a written opinion denying the

motion. The court found that the Buddy and Conneen matters did not invol ve

the same underlying transaction or common issues of fact because they arose

from different motor vehicle accidents that occurred a year apart. In addition,

the court noted that the accidents involved drivers heading to different

driveway entrances, a significant distinction because the experts whose reports

were submitted on then-pending summary judgment motions based their

opinions on the driveways' distances from the Cains Mill Road intersection.

The court also found that because the Buddy accident resulted in a death and

the Conneen matter concerned solely injuries, proof of damages at trial would

be meaningfully different. Finally, the court concluded that the facts in the

Buddy cases would be "highly prejudicial" to the defendants in the Conneen

case, as the jury would likely assume defendants were on notice of the

A-4339-18

10

allegedly dangerous condition. A March 6, 2019 order memorializes the

court's decision.

The parties also cross-moved for summary judgment. Plaintiffs relied on

two access management 6 experts, Phillip Demosthenes and Christopher

Huffman, P.E., whose qualifications are not disputed. Huffman opined that

Wawa violated State regulations, industry standards, and company policy by

designing and maintaining a site plan that placed access connections within the

functional intersection area of a four-lane highway, and in a way that failed to

control, if not eliminate, left turns into or out of the parking lot. He identified

an accident at the site on February 22, 2012, which he found to be "very

similar" to the Buddy and Conneen accidents, as well as other accidents in the

area of the driveway entrances. He reasoned that once a pattern of left -turn

crashes involving vehicles entering or exiting the parking lot to Route 322

occurred, Wawa should have taken steps to reconfigure its parking lot and

driveway entrances for the benefit and safety of its customers.

Demosthenes opined that the State created dangerous conditions on its

property through unsafe access areas, in violation of its existing regulations

6

"Access management (AM) is the proactive management of vehicular access

points to land parcels adjacent to all manner of roadways." Federal Highway

Administration, What Is Access Management? (Feb. 15, 2017),

https://ops.fhwa.dot.gov/access_mgmt/what_is_accsmgmt.htm.

A-4339-18

11

and industry standards. He opined that the driveway entrances do not meet

current safety standards and that the State failed to follow its procedures when

it did not inspect and remedy the dangerous conditions, including closing both

driveway entrances along Route 322, when it engaged in improvement projects

in the area of the store in 1993 and 2010. He concluded that the Buddy and

Conneen crashes were caused by the dangerous conditions the State allowed to

persist.

The State submitted an expert report from an engineer who opined that

the cause of the accidents were Knapp's and Casella's decisions to make an

illegal left turn to access the driveway entrances. According to the expert, the

drivers failed to give meaning and purpose to traffic control devices in place

on Route 322, such as signals, striping, and signage, intended to prevent

vehicles from making a left turn across two lanes of opposing traffic. The

expert concluded that if Knapp and Casella had obeyed the "rules of the road"

and used the jug handle to access the WaWa parking lot the accidents would

not have happened.

WaWa's engineering expert reached the same opinion, concluding that

Knapp and Casella caused the accidents by violating motor vehicle laws and

disregarding the jug handle. In addition, he opined that WaWa had no duty to

provide signage or prohibitive measures to prevent illegal turns by motorists

A-4339-18

12

on the highway because the "striped median prohibits these movements" as

provided by N.J.S.A. 39:4-82.1.

The court also considered the deposition testimony of Marta Harrison,

the general manager of the store since 2012. She testified that she used the jug

handle to access the Wawa because she believed that making left turns into the

store from the westbound lanes of Route 322 was "not safe." She noted the

"double yellow lines" and "a sign" indicating that all turns should be made

from the jug handle and stated that "[i]t seem[ed] safer to [her] to follow the

law and rules." Harrison stated that she was not tasked with monitoring

motorists who might access the parking lot by making an illegal left turn on

the highway.

Wawa argued it did not owe plaintiffs a duty of care with respect to the

design of the driveway entrances. In addition, it asserted that the driveway

entrances were not dangerous conditions and that the actions taken by Knapp

and Casella were illegal, unnecessary to enter the parking lot, and did not

comport with the intended use of the driveway entrances. Wawa also argued

the record contains no proof it invited drivers to make an illegal turn across the

highway to access its property and further submitted that there was a legal

means to access the store parking lot for westbound drivers on Route 322

through use of the jug handle. WaWa argued it did not have a duty to enforce

A-4339-18

13

traffic laws on a public roadway and that the State controls regulation of the

driveway entrances on its property.

The State argued it was entitled to immunity for all claims asserted

against it under three provisions of the TCA: (1) law enforcement immunity,

N.J.S.A. 59:2-4, for an alleged failure to enforce its regulations; (2) licensing

immunity, N.J.S.A. 59:2-5, for any permitting decision, or alleged absence

thereof, related to the driveway entrances; and (3) inspection immunity,

N.J.S.A. 59:2-6, for any alleged failure to inspect the driveway entrances. In

addition, the State argued the statutory exception to immunity for dangerous

conditions of public property did not apply because the driveway entrances

were not dangerous conditions, use of the driveway entrances with due care

did not create a reasonably foreseeable risk of the injuries suffered by

plaintiffs, and the State did not act in a palpably unreasonable manner in

failing to ameliorate any such risk if it existed.

On May 7, 2019,7 the trial court issued a written opinion granting

summary judgment to defendants on all claims. The court rejected plaintiffs'

arguments that WaWa violated a duty of care to plaintiffs. The court found

7

Each trial court order resolving the parties' summary judgment motions is

dated May 7, 2019, and refers to an accompanying written memorandum of

decision. The written memoranda of decision, however, are dated May 8,

2019, but were uploaded to the court's electronic filing system on May 7, 2019.

A-4339-18

14

that Knapp's and Casella's acts, which were the cause of the accidents, and the

collisions, happened in the eastbound lanes of Route 322 and not on WaWa's

property. Noting long-established precedents that a commercial landowner has

no duty to regulate or control the conditions of property it does n ot own, the

court found that WaWa did not owe a duty to plaintiffs related to the accidents.

The court recognized, however, that in limited circumstances a

commercial landowner's duty to protect its invitees may extend beyond its

premises for activities from which it directly benefits. The court found that it

was reasonable to conclude that Wawa could have received an economic

benefit from drivers accessing its parking lot by making an illegal left turn

from the highway. However, the court concluded that westbound drivers were

provided a safe path to enter the parking lot through the jug handle, relieving

WaWa of any duty to take steps to prevent illegal left turns into its driveway

entrances. Lastly, the court found that even if the driveway entrances w ere

dangerous conditions of State property, WaWa had no legal duty to report

those conditions to government entities with the authority to remedy them.

The court concluded that the State is absolutely immune from liability

pursuant to N.J.S.A. 59:2-4, for its alleged failure to enforce its regulations,

N.J.S.A. 59:2-5, for permitting decisions concerning the driveway entrances,

and N.J.S.A. 59:2-6, for its failures to inspect the driveway entrances. The

A-4339-18

15

court also concluded that the statutory exception to immunity for dangerous

conditions of public property was inapplicable. As the court explained,

[t]he placement of the driveways does not constitute a

dangerous condition . . . because if drivers exercise

due care, the subject accidents would not be

reasonably foreseeable. Route 322 is divided by

double solid yellow lines prohibiting left turns into the

subject driveways. Clearly, illegally crossing the

highway to make the left turn is not exercising due

care. If motorists were exercising due care by

utilizing the designated . . . jug handle to access the

Wawa, accidents such as these would not be

reasonably foreseeable.

On May 7, 2019, the court entered orders granting summary judgment in

favor of the State and against plaintiffs on all claims alleged.

Jennifer, the Estate, and Conneen appealed from the May 7, 2019 orders

and the March 6, 2019 order denying consolidation. We thereafter

consolidated the appeals for briefing and argument.

Plaintiffs raise the following arguments.

POINT I8

THE TRIAL COURT ERRED IN DENYING

SUMMARY JUDGMENT TO PLAINTIFFS AND

GRANTING IT TO WAWA BECAUSE WAWA

MAINTAINED A DANGEROUS CONDITION

WITHIN THE SCOPE OF INVITATION AND

INJURY WAS REASONABLY FORESEEABLE.

8

The point headings have been modified for ease of reading.

A-4339-18

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POINT II

THE TRIAL COURT ERRED WHEN IT FAILED TO

FIND A SEPARATE DUTY ON WAWA TO

PROVIDE SAFE PASSAGE FOR THE PUBLIC IT

INVITED ONTO ITS PROPERTY THROUGH A

DANGEROUS DRIVEWAY SYSTEM.

POINT III

THE TRIAL COURT OVERLOOKED WAWA'S

DUTY TO REMEDY THE DANGEROUS

CONDITION AND IMPROPERLY SHIFTED THE

BURDEN OF NOTICE FROM WAWA TO THE

STATE.

POINT IV

THE TRIAL COURT'S DECISION TO DISMISS

WAWA SOLELY BASED ON TWO "ALTERNATE

PATH" CASES RESTS UPON LEGAL AND

FACTUAL ERRORS WHICH UNFAIRLY PUNISH

INNOCENT PLAINTIFFS AND REWARD A

CULPABLE COMMERCIAL OCCUPIER.

POINT V

THE COURT ERRED IN GRANTING THE STATE

SUMMARY JUDGMENT BY RELYING UPON

THREE STATUTORY IMMUNITY PROVISIONS

WHICH DO NOT APPLY.

POINT VI

THE TRIAL COURT ABUSED ITS DISCRETION IN

DENYING CONSOLIDATION FOR TRIAL.

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II.

When reviewing an order granting summary judgment, we apply the

same standard used by the trial court. Steinberg v. Sahara Sam's Oasis, LLC,

226 N.J. 344, 366 (2016). Summary judgment is appropriate where "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).

[W]hether there exists a 'genuine issue' of material

fact that precludes summary judgment requires the

[court] to consider whether the competent evidential

materials presented, when viewed in the light most

favorable to the non-moving party, are sufficient to

permit a rational factfinder to resolve the alleged

dispute issue in favor of the non-moving party.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

540 (1995).]

In the absence of genuine issues of material fact, we must "decide

whether the trial court correctly interpreted the law." DepoLink Court

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.

Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494

(App. Div. 2007)). We review issues of law de novo, according no deference

to the trial court's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478

(2013).

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III.

We begin with plaintiffs' challenge to the trial court's entry of summary

judgment in favor of WaWa. "To sustain a cause of action for negligence, a

plaintiff must establish four elements: '(1) a duty of care, (2) a breach of that

duty, (3) proximate cause, and (4) actual damages.'" Townsend v. Pierre, 221

N.J. 36, 51 (2015) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)).

Plaintiffs allege Wawa had a non-delegable duty as a commercial property

owner to provide customers with safe driveway entrances to its parking lot or

to warn them of the dangers of making an illegal left turn from the westbound

lanes of Route 322 to enter the parking lot.

Our focus is on the first required element: the presence of a legal duty.

The existence and scope of a duty is a legal question for the court. Estate of

Desir v. Vertus, 214 N.J. 303, 322 (2013). We review a trial court's

determination of that question de novo. Broach-Butts v. Therapeutic

Alternatives, Inc., 456 N.J. Super. 25, 33 (App. Div. 2018), certif. denied, 236

N.J. 606 (2019).

"We are not bound by the opinion of plaintiffs' expert that the

recognition of such a duty is legally required" because "'[a]n expert's opinion

on a question of law is neither appropriate nor probative.'" Est. of Campagna

v. Pleasant Point Props., LLC, 464 N.J. Super. 153, 171 (App. Div. 2020)

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(quoting Kamienski v. State, 451 N.J. Super. 499, 518 (App. Div. 2017)),

certif. denied, 245 N.J. 585 (2021). The "actual imposition of a duty of care

and the formulation of standards defining such a duty derive from

considerations of public policy and fairness." Vertus, 214 N.J. at 322 (quoting

Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438 (1993)).

While "[t]here is no bright line rule that determines when one owes a

legal duty," Badalamenti v. Simpkiss, 422 N.J. Super. 86, 94 (App. Div. 2011),

in examining "[w]hether a person [or entity] owes a duty of reasonable care

toward another," courts must assess

whether the imposition of such a duty satisfies an

abiding sense of basic fairness under all of the

circumstances in light of considerations of public

policy. That inquiry involves identifying, weighing,

and balancing several factors – the relationship of the

parties, the nature of the attendant risk, the

opportunity and ability to exercise care, and the public

interest in the proposed solution. The analysis is both

very fact-specific and principled; it must lead to

solutions that properly and fairly resolve the specific

case and generate intelligible and sensible rules to

govern future conduct.

[Hopkins, 132 N.J. at 439 (citations omitted).]

While "[f]oreseeability of injury to another is important, [it is] not dispositive"

as "[f]airness, not foreseeability alone, is the test.'" Vertus, 214 N.J. at 325

(internal quotations omitted).

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Plaintiffs' claims are based on principles of premises liability. "The

proprietor of premises to which the public is invited for business purposes of

the proprietor owes a duty of reasonable care to those who enter the premises

upon that invitation to provide a reasonably safe place to do that which is

within the scope of the invitation." Butler v. Acme Markets, Inc., 89 N.J. 270,

275 (1982). The landowner has a "general common law duty to business

invitees – to maintain its premises in a condition safe from defects that the

business is charged with knowing or discovering . . . ." Stelluti v. Casapenn

Enters., LLC, 203 N.J. 286, 311 (2010).

We agree with the trial court's conclusion that WaWa owed no duty to

plaintiffs because their injuries did not occur on WaWa's premises. Knapp and

Casella collided with plaintiffs' motorcycles in the eastbound lanes of Route

322. Although the drivers were headed in the direction of an entrance to the

WaWa parking lot, they initiated their illegal left turns on State property and

caused injuries to plaintiffs before reaching WaWa's property. Under the

general rule, premises liability does not apply here.

With respect to off-premises injuries, "a premises owner owes a duty of

care to one injured off premises if the source of the injury is a dangerous

condition on the premises and if the injury is the result of a foreseeable risk to

an identifiable person." Vertus, 214 N.J. at 318 (emphasis added). For

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example, in Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 404-05 (2006), the

Court found that an employer owed a duty of care to its employee's wife who

was exposed to and injured by asbestos carried home from the employer's

premises on the employee's clothing. Although off-premises liability has been

extended in limited circumstances, we see no basis in the record for such an

extension in this instance.

The holding in Kuzmicz v. Ivy Hill Apartments, Inc., 147 N.J. 510

(1997), is instructive on this point. The plaintiff in Kuzmicz "took a shortcut

along a winding path through [an] unlighted and wooded lot" owned by a

board of education on his way from a shopping plaza to an apartment complex

where he was a tenant. Id. at 512. He chose this path over a "lighted sidewalk

run[ning] from the shopping plaza to the apartment complex" and entered the

apartment complex property through a hole in a fence dividing the properties.

Ibid. The apartment complex manager testified that he "was aware that tenants

and employees used the path to go to the shopping plaza . . . ." Id. at 513.

While on the board of education's property, the plaintiff was stabbed. Id. at

512.

The plaintiff sued the apartment complex owner, alleging it breached a

duty of care to him by not mending the fence to discourage use of the path

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through the wooded lot or by warning him of the risk of assault on the board's

property, which had a history as the situs of illegal activity. Id. at 511-12.

In Kuzmicz, the Court held that the apartment complex owner owed no

duty of care to the plaintiff. It began its analysis by observing that "[t]he issue

is whether, 'in light of the actual relationship between the parties under all of

the surrounding circumstances,' the imposition of a duty on the landowner is

'fair and just.'" Id. at 515 (alteration in original) (quoting Brett v. Great Am.

Recreation, 144 N.J. 479, 509 (1996)). The Court noted that "[c]ritical to the

imposition of liability is a direct economic benefit to the commercial

landowner from the path taken by the injured party and the absence of an

alternative route." Id. at 519.

The Court found that a duty of care did not arise because nothing in the

record supported the conclusion that the apartment complex owner benefitted

economically from the tenants' use of the off-premises path, id. at 521, and the

apartment complex owner did not have possession of, or a right to control, the

property where the assault took place, id. at 517. In addition, the Court found

that the unrepaired fence opening did not create a duty on the part of the

apartment complex owner because it provided its tenants with a safe passage to

the public sidewalk to get to the shopping plaza. Id. at 522. The plaintiff's

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election to take a shorter, unsafe path for his convenience was not the fault of

the apartment complex owner. Ibid.

The Court further held that the apartment complex manager's "awareness

of criminal activity on the Board's property does not suffice to impose liability

on [the apartment complex] for that activity." Id. at 521. The Court reasoned

that the plaintiff "was injured not because [the apartment complex] failed to

exercise due care on its property, but because the Board and others failed to

prevent criminal activity on the Board's property." Ibid.

Similarly, in MacGrath v. Levin Properties, 256 N.J. Super. 247 (App.

Div. 1992), we affirmed the grant of summary judgment in favor of a shopping

center owner based on a finding that it did not owe a duty of care to a patron

who was injured off premises. In that case, the plaintiff was struck by a car

after she left the shopping center and attempted to cross Route 22, an adjacent

State highway, on foot at a vehicle entrance driveway to the shopping center.

Id. at 250. We rejected her claim that the shopping center owner owed her a

duty to create a safe pedestrian passage across the highway or to warn her of

the dangers of crossing the highway on foot. We reasoned that

[j]ust as no one could reasonably suggest that the

owner of commercial property owes a duty to

pedestrians crossing the street to keep an abutting

paved road in repair, it cannot be fairly suggested that

the owner owes a duty to protect the [plaintiff] from

the obvious hazards of the abutting highway. Liability

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rests with the State, if there exists a dangerous

condition in the public way which caused the accident,

or with the operator of the vehicle whose negligence

caused the injuries to the [plaintiff].

[Id. at 253 (citation and internal quotation marks

omitted).]

We concluded that extending a duty to the shopping center owner merely

because patrons use an adjoining public highway to access its property "would

impose a similar duty upon all proprietors owning property abutting a public

street who enjoy the 'benefit' of traffic access from the street to thei r business

enterprises." Id. at 255.

In light of these precedents, we agree with the trial court's conclusion

that WaWa did not have a duty of care to plaintiffs to prevent the illegal acts

of Knapp and Casella on State property. Wawa neither owns nor has control

over the eastbound lanes of Route 322, where Knapp and Casella attempted to

execute their illegal turns and collided with the plaintiffs' motorcycles. In

addition, the driveway entrances, which plaintiffs allege to be dangerous

conditions, are not on WaWa's premises. They are situated in the State's right-

of-way and are subject to its sole control. Thus, an often crucial element of

off-premises liability – an on-premises dangerous condition – is not present

here.

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We also agree with the trial court's conclusion that any economic benefit

to WaWa from customers making an illegal left turn into the driveway

entrances is insufficient to create a legal duty. See Pote v. City of Atlantic

City, 411 N.J. Super. 354, 368 (App. Div. 2010) (rejecting the argument that

economic benefit "automatically translates into a corresponding duty to protect

[the defendant's] patrons from the hazards of the public thoroughfare"). There

is no support in the record for plaintiffs' claim that WaWa invited drivers to

make an illegal turn to enter its parking lot and nothing in the record suggests

WaWa relied on patrons to make illegal left turns to generate income

necessary to operate the store. In addition, the record clearly establishes that a

safe alternative route existed for westbound drivers to access WaWa's

driveway entrances. The absence of an alternative route is "critical" to off -

premises liability. Kuzmicz, 147 N.J. at 519.

We are not persuaded by plaintiffs' argument that WaWa, aware through

its manager of the dangerous nature of left turns into its driveway entrances,

should be charged with a duty to change its parking lot design or report to the

State the need to alter or close the driveway entrances. Such a holding – in the

absence of specific conduct by the landowner enticing motorists to make

illegal turns – would amount to an expansion of a duty to all commercial

landowners along a State highway to prevent motor vehicle violations by

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26

potential customers and ameliorate the effects of those violations. Th at

outcome would be unworkable and unfair, particularly in light of regulations

prohibiting private property owners from controlling vehicular traffic without

State approval.

Nor do we see support in the record for plaintiffs' argument that WaWa

breached a duty to warn its customers of the dangers of making an illegal left

turn from the westbound lanes of the highway. It is not clear how such a

warning would be delivered to drivers who had not yet reached the store, as

was the case here. In addition, we decline plaintiffs' invitation to impose on

commercial property owners the obligation to warn business patrons of the

obvious danger posed by driving over two sets of solid yellow lines to cross

two lanes of opposing traffic on a highway with a fifty-five-mile-per-hour

speed limit.

We also agree with the trial court's finding that WaWa did not violate its

duty to address dangerous conditions on its property for the reasons discussed

in greater detail below. In light of our conclusion that WaWa had no duty of

care to plaintiffs, we need not address whether it breached any such duty or

whether that breach was the proximate cause of plaintiffs' injuries.

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IV.

We turn to the trial court's entry of summary judgment in favor of the

State. "Generally, immunity for public entities is the rule and liability is the

exception." Fleuhr v. City of Cape May, 159 N.J. 532, 539 (1999). "[P]ublic

entities shall only be liable for their negligence within the limitations of" the

TCA. N.J.S.A. 59:1-2. The requirements of the TCA are "stringent" and place

a "heavy burden" on plaintiffs seeking to establish public entity liability.

Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 136 (1993). We examine, in

turn, the statutory immunities the trial court concluded barred plain tiffs'

claims.

Pursuant to N.J.S.A. 59:2-4, "[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."

See Bombace v. City of Newark, 125 N.J. 361, 366 (1991) (holding that the

TCA "grants an unqualified or absolute immunity to both public entities and

their employees from liability for injuries caused by a failure to enforce the

law."). "[A]pplication of the absolute immunity under [N.J.S.A. 59:2-4] is

determined by whether the critical causative conduct by government

employees consists of non-action or the failure to act with respect to the

enforcement of the law." Lee v. Brown, 232 N.J. 114, 127 (2018). Put simply,

"if conduct giving rise to injury consists only of non-action or the failure to act

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in the enforcement of the law, [the public entity] is entitled to absolute

immunity, even though other antecedent or surrounding conduct might

constitute acts or action that would otherwise be subject to the qualified

immunity." Bombace, 125 N.J. at 370; see Lee, 232 N.J. at 128 (noting that

public employees are entitled only to qualified immunity when they are

enforcing the law pursuant to N.J.S.A. 59:3-3).

The critical causative conduct plaintiffs allege resulted in their injuries is

the State's alleged inaction in enforcing its regulations related to access

violations from public roadways by failing to close the WaWa driveway

entrances or otherwise preventing motorists from making illegal left turns to

access the parking lot. As the conduct complained of relates to the State's

alleged omissions, rather than affirmative acts, we agree with the trial court's

conclusion that enforcement immunity under N.J.S.A. 59:2-4 applies. The

State cannot be held liable for damages for its alleged failure to apply existing

or past regulatory requirements to WaWa's driveway entrances.

N.J.S.A. 59:2-5, the licensing immunity provision, states as follows:

[a] public entity is not liable for an injury caused by

the issuance, denial, suspension or revocation of, or by

the failure or refusal to issue, deny, suspend or revoke,

any permit . . . or similar authorization where the

public entity . . . is authorized by law to determine

whether or not such authorization should be issued,

denied, suspended or revoked.

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Immunity under N.J.S.A. 59:2-5 "is pervasive and applies to all phases of the

licensing function, whether the governmental acts be classified as discretionary

or ministerial." Malloy v. State, 76 N.J. 515, 520 (1978). As the Court

explained,

[l]icensing activity is a vital exercise of governmental

authority. In this State there are literally millions of

licenses, certificates, permits and the like applied for,

issued, renewed or denied. It is inevitable that with

such a staggering volume of activity, mistakes, both

judgmental and ministerial, will be made. The

purpose of the immunity is to protect the licensing

function and permit it to operate free from possible

harassment and the threat of tort liability.

[Id. at 521.]

Plaintiffs argue the trial court erred when it applied this provision

because a condition precedent to licensing immunity is the State's issuance of a

license or other approval. There is no evidence in the record that the State

issued a permit for the construction of the driveway entrances in 1969-70. We

agree, however, with the State's argument that even if it did not grant a permit

or other form of approval at the time of construction, the driveway entrances

were implicitly approved by statute in 1992. See City of Linden v. Benedict

Motel Corp., 370 N.J. Super. 372, 390-91 (App. Div. 2004) (explaining that

"N.J.S.A. 27:7-92a requires access permits for anyone seeking access to a

State highway, but protects or 'grandfathers' access 'in existence prior to

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30

January 1, 1970,' as if a permit had been issued."). Thus, with respect solely to

the issue of the State issuance of an approval for the construction of driveway

entrances and its alleged failure to revoke that approval in later years,

plaintiffs' claims are barred by N.J.S.A. 59:2-5.

We acknowledge the State's licensing immunity does not insulate it from

liability for a dangerous condition on State property. See Ball v. New Jersey

Bell Tel. Co., 207 N.J. Super. 100 (App. Div. 1986). However, as is discussed

at length below, we agree with the trial court's conclusion that dangerous

condition liability, as defined by N.J.S.A. 59:4-2, is inapplicable here.

N.J.S.A. 59:2-6, the inspection immunity provision, states that

[a] public entity is not liable for injury caused by its

failure to make an inspection, or by reason of making

an inadequate or negligent inspection of any property;

provided, however, that nothing in this section shall

exonerate a public entity from liability for negligence

during the course of, but outside the scope of, any

inspection conducted by it, nor shall this section

exonerate a public entity from liability for failure to

protect against a dangerous condition as provided in

[N.J.S.A. 59:4-2].

The statute unambiguously contradicts plaintiffs' argument that the trial court

erred when it granted inspection immunity because the State did not inspect

the driveway entrances, and notice their alleged non-compliance with current

regulations, during improvement projects along Route 322 in 1993 and 2010.

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We agree with the trial court's conclusion that the State is not subject to

liability due to a dangerous condition of its property created by the driveway

entrances. N.J.S.A. 59:4-2 provides:

A public entity is liable for injury caused by a

condition of its property if the plaintiff establishes that

the property was in a dangerous condition at the time

of the injury, that the injury was proximately caused

by the dangerous condition, that the dangerous

condition created a reasonably foreseeable risk of the

kind of injury which was incurred, and that either:

a. a negligent or wrongful act or omission of an

employee of the public entity within the scope of his

employment created the dangerous condition; or

b. a public entity had actual or constructive notice

of the dangerous condition under section 59:4-3 a

sufficient time prior to the injury to have taken

measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose

liability upon a public entity for a dangerous condition

of its public property if the action the entity took to

protect against the condition or the failure to take such

action was not palpably unreasonable.

[N.J.S.A. 59:4-2.]

N.J.S.A. 59:4-1(a) defines a dangerous condition as "a condition of

property that creates a substantial risk of injury when such property is used

with due care in a manner in which it is reasonably foreseeable that it will be

used." In order to pose a "'substantial risk of injury' a condition of property

cannot be minor, trivial, or insignificant. However, the defect cannot be

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viewed in a vacuum. Instead, it must be considered together with the

anticipated use of the property . . . . " Atalese v. Twp. of Long Beach, 365

N.J. Super. 1, 5 (App. Div. 2003). "[A] dangerous condition of property may

be found to exist when an unreasonable risk of harm is created by the

combination of a defect in the property itself and the acts of third parties."

Longo v. Aprile, 374 N.J. Super. 469, 474-75 (App. Div. 2005) (alteration in

original) (quoting Roe by M.J. v. N.J. Transit Rail Operations, Inc., 317 N.J.

Super. 72 (App. Div. 1998)).

N.J.S.A. 59:4-3 provides:

a. A public entity shall be deemed to have actual

notice of a dangerous condition within the meaning of

subsection b. of section 59:4-2 if it had actual

knowledge of the existence of the condition and knew

or should have known of its dangerous character.

b. A public entity shall be deemed to have

constructive notice of a dangerous condition within

the meaning of subsection b. of section 59:4-2 only if

the plaintiff establishes that the condition had existed

for such a period of time and was of such an obvious

nature that the public entity, in the exercise of due

care, should have discovered the condition and its

dangerous character.

We agree with the trial court's conclusion that the absence of due care by

Knapp and Casella when using the driveway entrances is determinative of

whether the dangerous condition exception applies. "If a public entity's

property is dangerous only when used without due care, the property is not in a

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'dangerous condition.'" Garrison v. Twp. of Middletown, 154 N.J. 282, 287

(1998). "When the property poses a danger to all users," however, "an injured

party may establish that property was in a dangerous condition

notwithstanding his or her failure to exercise due care." Id. at 292.

The test to assess whether those involved in bringing about an injury to

another were exercising due care is two-fold. Once a dangerous condition is

found to exist, a court must determine: (1) "whether the property poses a

danger to the general public when used in [a] normal, foreseeable manner,"

and (2) "whether the nature of the . . . activity is 'so objectively unreasonable'

that the condition of the property cannot reasonably be said to have caused the

injury." Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 125

(2001). The Garrison Court explained that use of the subject public property

must be "objectively reasonable from the community perspective" to be

considered as used "with due care." 154 N.J. at 291. The Court also clarified

that "'used with due care' refers not to the conduct of the injured party, but to

the objectively reasonable use by the public generally." Ibid. Accordingly,

whether a member of the public acted with due care on public property

depends on whether the property was used in a reasonably foreseeable manner .

The record supports the trial court's conclusion that the driveway

entrances did not pose a substantial risk of injury when used with due care in a

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34

manner in which it is reasonably foreseeable that it will be used. The

driveway entrances are not intended to be used for illegal left turns by

westbound drivers on Route 322. Breaking the law by crossing two sets of

yellow lines to cross two lanes of opposing highway traffic to access the

driveway entrances is not the exercise of due care. The risk of danger created

by such highly dangerous maneuvers is objectively unreasonable and

inconsistent with the intended use of the driveway entrances, which are

designed to permit eastbound motorists to enter the WaWa parking lot.

For these same reasons, we reject plaintiffs' argument that WaWa

breached its duty to ameliorate dangerous conditions on its property. A

commercial enterprise "must exercise reasonable care for an invitee's safety,"

which "includes making reasonable inspections of its property and taking such

steps as are necessary to correct or give warning of hazardous conditions or

defects actually known to the landowner." Monaco v. Hartz Mountain Corp.,

178 N.J. 401, 414 (2004) (citing Hopkins, 132 N.J. at 434). In this vein, a

commercial "landowner is liable to an invitee for failing to correct or warn of

defects that, by the exercise of reasonable care, should have been discovered."

Id. at 414-15. As explained above, the driveway entrances are not dangerous

conditions when used with due care for their intended purpose and are not on

WaWa's property.

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To the extent we have not specifically addressed any of plaintiffs'

remaining claims, we conclude they lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

In light of our conclusions, we affirm the May 7, 2019 orders granting

summary judgment to the State and against plaintiffs on all claims. 9 We

recognize the tragic nature of these accidents caused by law-breaking drivers,

but discern no legal basis to impose liability on the defendants before us.

Affirmed.

9

Because we affirm the trial court's summary judgment orders, we need not

address its March 6, 2019 order denying Conneen's motion to consolidate.

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