Harwood Lloyd Secures Summary Judgment for the Borough of Old Tappan Under the New Jersey Tort Claims Act
Harwood Lloyd partner Kevin J. Conyngham, with senior associate Erik Kallhovd, obtained summary judgment on behalf of the Borough of Old Tappan in Wiklinski v. McTernan, a personal injury action in the Superior Court of New Jersey, Law Division, Bergen County. The action arose from a 2023 collision between a bicyclist and a motor vehicle at an uncontrolled intersection. Plaintiff alleged that a berm, trees, and vegetation on the adjacent corner of a “T” intersection created a dangerous sight obstruction, and that the Borough was liable for failing to install a stop sign or other traffic control device and for failing to enforce its corner-lot visibility ordinances.
In a detailed seventeen-page decision, the Court adopted the Borough’s layered Tort Claims Act analysis on every independent ground. The Court held that the failure-to-install claim was barred by the immunity for ordinary traffic control devices under N.J.S.A. 59:4-5. In finding the immunity applicable, the Court rejected plaintiff’s reliance on the “trap” exception of Civalier v. Estate of Trancucci, 138 N.J. 52 (1994), because the intersection had always been uncontrolled and no party relied on a missing or malfunctioning device. The Court further held that the dangerous-condition claim under N.J.S.A. 59:4-2 failed because the record did not establish that the alleged obstruction was located on property owned or controlled by the Borough, and that any failure-to-enforce or failure-to-inspect theory was independently barred pursuant to the immunities afforded by N.J.S.A. 59:2-4 and 59:2-6. Finally, the Court found that even assuming a dangerous condition on public property existed, plaintiff raised no triable issue of notice or palpable unreasonableness. The Court thus dismissed with prejudice all claims and crossclaims against the Borough.
