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Plaintiff Edward Coyne was injured when a van he was driving collided with a vehicle Vincent McDaniel, a state employee, was driving as part of a highway barrier-cleaning operation, which involved cleaning debris from the shoulder adjacent to the barrier that divided the north and southbound sides of the road. The judge dismissed plaintiff’s complaint on the grounds that defendants were immune under the New Jersey Tort Claims Act, specifically N.J.S.A. 59:2-3a, which immunizes both public employees and public entities for the exercise of discretion within the scope of employment. I. At approximately 1 p.m., plaintiff was traveling north in a commercial van on Route 287 in Montville Township. According to plaintiff, he was in the left lane, driving between 65 and 70 miles per hour, behind an 18-wheel tractor-trailer, with another truck in the center lane beside him. Suddenly, the tractor-trailer that was traveling in front of plaintiff moved into the center lane. As it did so, plaintiff first observed the New Jersey Department of Transportation truck that McDaniel was driving. McDaniel’s truck had an electric arrowboard mounted on it, with a flashing arrow, pointing to the right � toward the center lane of the highway. McDaniel’s truck was in the left lane, and, according to plaintiff, it “appeared to be still.” Once plaintiff saw the DOT truck, he tried to move to the center lane, but he could not do so or stop in time. He crashed his van into the right rear of the DOT truck, causing him serious injuries. II. Judge Dangler granted defendants’ motion for summary judgment. Although he found genuine issues of material fact as to whether plaintiff was negligent in the operation of his vehicle, focusing on N.J.S.A. 59:2-3, the judge found no disputes of material fact concerning whether defendants followed the procedures established in the manual. III. N.J.S.A. 59:2-3 states in part: a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity[.] Planning-level or discretionary decisions are entitled to this immunity; operational or ministerial actions are not. Kolitch v. Lindendahl, 100 N.J. 485, 495 (1985). “A discretionary act . . . calls for the exercise of personal deliberations and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” Ibid. (quotations omitted). Plaintiff concedes the manual was the product of high-level decision-making and is therefore immunized pursuant to N.J.S.A. 59:2-3a. Instead of challenging the manual, plaintiff argues the DOT employees should have taken additional precautions in addition to those set forth in the manual � by the use of either traffic cones or a flagperson � because the left shoulder of the highway was too narrow to warrant the procedures established in the manual for slow-moving operations. Plaintiff also claims this was not a slow-moving operation because the convoy of trucks was required to stop at times to allow the debris to be placed into dump trucks; consequently, plaintiff asserts it was palpably unreasonable for the DOT employees not to close the left lane, or give additional warnings over and above the minimal requirements established in the manual. Plaintiff’s arguments are not persuasive. There is no material distinction between the facts in this case and those in Cobb v. Waddington, 154 N.J. Super. 11, 16 (App. Div. 1977), certif. denied, 76 N.J. 235 (1978), which held that the selection of barricades and their configuration on the highway as a method of channelizing traffic was reflective of the DOT’s exercise of judgment and discretion and was immunized under N.J.S.A. 59:2-3a. Held: The same holds true here. DOT employees followed the dictates of the DOT safety manual as it applied to slow-moving operations, which includes mechanical sweeping and litter control, “conducted in the active or part of the active lanes of a roadway, where the speed limit exceeds 35 MPH.” Therefore, because the decision establishing the procedures in the manual was discretionary and immunized, when the DOT employees followed those procedures during the cleanup operation, their actions were also immunized. Plaintiff takes the position that defendants should not have followed the guidelines for slow-moving operations because at the site of the accident the roadway did not contain a sufficient shoulder area. All parties agree a shoulder was present; the question is whether the width of the shoulder should have removed the cleanup operation from the umbrella of slow-moving operations under the manual. At his deposition, plaintiff agreed that there was a shoulder to the left of the lane where the accident occurred, although he was unsure whether it was wide enough on which to drive. Plaintiff’s co-worker observed a shoulder to the left of the travel lane, wide enough “for a car to be there.” The state’s expert, the only witness to measure the shoulder between the mileposts where the accident took place, found the shoulder to be “of full width”; he “was able to drive fully on the shoulder with approximately two feet of clearance between [his] vehicle and both the median barrier and the left travel-lane’s left edge line.” Plaintiff’s expert agreed there was a shoulder � testifying that the shoulder width within the accident area was “three feet plus” � but, without citing any authority to support his opinion, did not consider a three-foot-wide shoulder sufficient to allow a slow-moving operation as defined in the manual. He claims the narrow shoulder should have required additional safety measures because, as he said in his report, “[w]ith the shoulder changing in width and configuration, it will be necessary for the street sweeper to move into the fast lane when the left shoulder decreases to 3′ and there is the NJ concrete barrier. Where the shoulder extends to 10′ or 12′, then the sweeper would travel on the shoulder.” The manual does not require that the shoulder be wide enough for the sweeper or other vehicles to ride on without encroaching on the travel portion of the highway. The manual calls for a shoulder; it does not require a shoulder to be any particular width. Nor does it require the vehicle convoy to be contained solely on the shoulder. Rather, the manual anticipates that the active lanes of the roadway are to be used by the vehicles in the work detail. It states that slow-moving operations, which include mechanical sweeping and litter patrol, are “conducted in the active or part of the active lanes of a roadway . . . .” As these procedures were the product of heightened decision-making, they are immunized. Consistent with these dictates, the convoy of trucks protecting the work detail was proceeding in the active left lane of the road. While the work detail and the debris sweeper were necessarily on the shoulder when cleaning the debris from the barrier area, DOT procedures did not require the support vehicles to limit their travel to the shoulder of the highway. When McDaniel’s vehicle was struck by plaintiff, it was in the left lane, where it was permitted to be. That the mechanical sweeper, which was located ahead of McDaniel’s vehicle, may also have traveled in the left lane, where the shoulder was narrow, did not violate the safety requirements for a slow-moving operation as established in the manual, or contribute to the accident. Whether McDaniel’s vehicle was stationary at the time of the accident, or moving slowly, is also of no moment. Concededly, mechanical sweeping and litter patrol requires the vehicles to proceed slowly and stop on occasion. Yet, when the manual was prepared, the decision was made to include these functions as “slow moving” operations. The wisdom of that decision, which was made by high-level decision-makers, based on “years of practical experience combined with knowledge gained from many national accident studies,” will not second-guessed. Plaintiff further argues that the manual established only minimal standards, and under the facts of this case, additional safety precautions should have been implemented. Specifically, the manual states that “[i]t should be emphasized that these are minimal desirable standards for normal situations and that additional protection should be considered when special complexities and hazards prevail.” It also indicates that “[i]n particular situations not adequately covered by the provision of this section, the protection of the traveling public and of the workmen on the scene will dictate the measures to be taken, consistent with the general principles set forth.” However, plaintiff fails to point to any “special complexities and hazards,” or any other reason, that would have required the state to take additional precautions not enumerated under the slow-moving operations section of the manual. The manual authorized this particular type of work detail on a roadway with a speed limit in excess of 35 mph. The weather was clear, and the roadway was dry. No special traffic conditions existed at the time of the accident that would have required DOT employees to channelize traffic or impose additional control devices or lane closure procedures. Nevertheless, DOT employees did take an additional safety precaution not required by the manual. They had posted a signboard on a truck approximately three-quarters of a mile before the work detail that stated, “left lane closed ahead.” The dissent agrees with plaintiff’s position that because the manual establishes only minimal standards, plaintiff should be entitled to submit plenary proofs as to whether the work detail acted reasonably in deciding which safety features to implement. At the time the summary judgment motion was filed, the issues had been joined for almost two years. Extensive discovery had been completed. It is safe to assume that, at least as to the liability aspect of the case, the facts before the motion judge were essentially those that would have been presented to a fact finder. Yet, neither plaintiff, nor the dissent, has been able to point to any disputed material facts in the record that would create a genuine issue as to the application of the act’s immunity to the work detail’s decision concerning what safety procedures to implement for the barrier-cleaning operation in question. The work detail followed the procedures set forth in the manual, and no traffic or other conditions evidencing “special complexities [or] hazards” were extant to warrant additional safety precautions, or otherwise undermine the reasonableness of its actions. IV. Plaintiff claims the court erred by finding defendants’ conduct was not palpably unreasonable pursuant to N.J.S.A. 59:4-2. Here, as the motion judge recognized, because any immunity provision in the act prevails over the liability provisions, N.J.S.A. 59:2-1b, the issue of whether the actions of the DOT work detail were palpably unreasonable is not reached so long as defendants’ actions are immunized. Accordingly, having agreed with the motion judge that defendants’ actions were immunized, it is unnecessary to decide whether defendants’ actions were palpably unreasonable. Affirmed. Kestin, P.J.A.D., dissenting, finds that whether or not the road crew acted reasonably in impinging on a lane of travel in order to perform its maintenance functions is manifestly a question of fact that requires more development than summary judgment procedures typically allow. It is especially significant that the Department of Transportation safety manual, containing the safety standards that the majority holds to be within the scope of the immunity conferred by N.J.S.A. 59:2-3a, itself provides that those norms “are minimal desirable standards for normal situations and that additional protection should be considered when special complexities and hazards prevail,” and that “[i]n particular situations not adequately covered . . . the protection of the traveling public and of the workmen on the scene will dictate the measures to be taken, consistent with the general principles set forth.” Clearly, the manual, by its own terms, contemplates that those who make on-the-spot decisions for maintenance crews are not to function as automatons, but are expected to apply good judgment; and that a failure to act reasonably in the circumstances to protect the traveling public may be seen to be actionably flawed conduct. At the very least, plaintiffs are entitled to a determination after a plenary-proof opportunity whether the maintenance crew acted in conformity with the safety manual’s requirements or good reason. The proofs will need to encompass the perspectives of both sides, including a fair consideration of the public needs that existed, the circumstances that were presented, the range of choices available, and normal practices. Only after such a plenary-proof opportunity can a court define the appropriate measure of reasonableness to be applied in the circumstances established. This is not to say that the matter must necessarily end with a fact finder’s determination. Defendants will have another opportunity to seek dismissal at the close of plaintiffs’ case if the plenary-proof showings made do not establish, sufficiently to command a fact finder’s review, the degree of fault or type of conduct, seen then in the context of full factual development, that satisfies statutory and common-law criteria. His only point is that, given the complexity and interplay of the factual and legal elements of the claim, disposition via summary judgment is distinctly premature. The terms of N.J.S.A. 59:4-2a, generally establishing the parameters of liability, and the well-established idea that even the question of whether conduct was “palpably unreasonable” is ordinarily a jury question, should preclude a holding in the present posture of the case that relies solely on the discretionary act immunity for public entities recognized by the Tort Claims Act. � Digested by Steven P. Bann [The slip opinion, including the dissent, is 29 pages long] For appellants � E. Drew Britcher (Britcher, Leone & Roth; Michael A. Quinn and Jessica E. Choper on the brief). For respondents � Howard N. Nirenberg (Nirenberg & Varano; Nirenberg and Sandra N. Varano on the brief).

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