explaining a plaintiff bringing a negligence action against a public entity "must first establish the predicates for liability, and later avoid application of any provision granting the sovereign immunity"
How later courts described this case
- explaining a plaintiff bringing a negligence action against a public entity "must first establish the predicates for liability, and later avoid application of any provision granting the sovereign immunity"
- recognizing in dicta no liability for failing to post a traffic sign
- stating that claim under N.J.S.A. 59:4-2 is evaluated under standard of palpably unreasonable conduct and not by standard of ordinary negligence
- ‘We have no doubt that the duty of ordinary care, the breach of which is termed negligence, differs in degree from the duty to refrain from palpably unreasonable conduct. The latter standard implies a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff.”
Written by the judges who cited it.
The opinion
O’HERN, J.,
concurring.
It would be less than candid not to admit how close is the call in this case. Justice Handler’s compelling dissent points out how contradictory are the signals of the Tort Claims Act. The liability that the Act concedes for a dangerous condition of property under N.J.S.A. 59:4-2 is withdrawn when the condition is caused by an immune act such as the design of the road, N.J.S.A. 59:4-6, or the legislative determination of the proper speed limit. N.J.S.A. 59:2-3(b).
The bitter irony is that the very posting of the immune legislative statement may have contributed to this fatal accident. Indeed, the posted speed may have conflicted with other speed control laws. Yet the comment to N.J.S.A. 59:2-1 makes clear that the statute is “intended to insure that any immunity provisions provided in the act or by common law will prevail over the liability provisions.” Immunity is the dominant consideration of the Act. See, e.g., Malloy v. State, 76 N.J. 515, 518-19 (1978).
The conflicting interplay of the provisions of the Act in this case may present one of those rare occasions that will commend itself to consideration as a legislative claim. See P, T & L Const. Co. v. Comm’r Dept. of Trans., 55 N.J. 341, 342 (1970).