                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 09-1983
                                      ____________

                         JENNIFER STASUL, as Administratrix
                  of the Estate of Carlos Vladimir Rodriguez, deceased;
                             R. C. S., an infant by his mother
                       and natural guardian, JENNIFER STASUL,

                                                  Appellants

                                            v.

                          STATE OF NEW JERSEY;
               NEW JERSEY DEPARTMENT OF TRANSPORTATION;
                           MACK TRUCKS, INC.
                              ____________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                                 (D.C. No. 2-06-cv-05781)
                      District Judge: Honorable Susan D. Wigenton
                                       ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 15, 2010

     Before: FISHER and COWEN, Circuit Judges, and DITTER,* District Judge.

                                  (Filed: July 28, 2010)
                                      ____________

                               OPINION OF THE COURT


       *
       Honorable J. William Ditter, Jr., Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
                                       ____________

FISHER, Circuit Judge.

       Jennifer Stasul, as administratrix of the estate of Carlos Vladimir Rodriguez and

natural guardian of R.C.S., an infant, appeals the District Court’s grant of summary

judgment on her various claims against the State of New Jersey and the New Jersey

Department of Transportation under the New Jersey Tort Claims Act (“NJTCA”). The

District Court found as a matter of law that the NJTCA confers immunity from liability

on the State defendants. We will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On the night of December 2, 2004, Carlos Vladimir Rodriguez, a professional

trucker, was operating a trucking rig on Interstate 95, near Fort Lee, New Jersey. While

exiting Interstate 95 onto New Jersey State Route 4, Mr. Rodriguez’s truck rolled over

and his head struck the base of a damaged light pole. He was fatally wounded.

       Mr. Rodriguez is survived by one son. The child’s mother, Jennifer Stasul

(“Stasul”), as natural guardian and administratrix of the estate, brought suit in the United

States District Court for the District of New Jersey for wrongful death against the State of

New Jersey and the New Jersey Department of Transportation (collectively “the State”),



                                              2
and Mack Trucks, Inc. The Complaint alleged, as to the State defendants, that the State

had failed to post appropriate speed limits on the highway exit, that the statutory default

speed limit was too fast, that the State had failed to post emergency warning signs to warn

of a dangerous road condition, and that a road resurfacing project in 1999 and 2000 had

caused a dangerous condition on the road. The State moved for summary judgment.

       The District Court granted summary judgment for the State on all claims, holding

that various immunity provisions of the NJTCA insulated the State from all liability. The

District Court held that, under N.J. Stat. Ann. § 59:4-5, the State is not liable “for an

injury caused by the failure to provide ordinary traffic signals, signs, markings or other

similar devices,” disposing of any claim based on the alleged failure to provide

emergency signs and the failure to post a speed limit sign. (Dist. Ct. Slip Op. 7-8.) The

Court further held that, under N.J. Stat. Ann. § 59:2-3(b), the State is “immune from any

suit based on either enactment of [a] speed-limit statute or [a] speed limit regulation,”

disposing of Stasul’s claim that the statutory default speed limit was too fast. (Id. at 8-9.)

Next, the Court reasoned that the liability created in N.J. Stat. Ann. § 59:4-2 for

“dangerous conditions” was precluded by the aforementioned immunities “regardless of

whether a dangerous condition existed on the Route 4 Westbound ramp at the time of the

Decedent’s accident.” (Id. at 11.) Finally, the Court concluded that, to the extent Stasul’s

dangerous condition claim alleged an omission other than the failure to post signs or enact




                                               3
a lower speed limit, “[t]he vague allegations that Defendants are potentially liable for not

doing more cannot defeat summary judgment.” (Id. at 11-12.)

       Stasul filed this timely appeal, limited to the District Court’s grant of summary

judgment on her dangerous condition claim.

                                             II.

       The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1332.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

       We review a district court’s grant of summary judgment de novo. Union Pac. R.R.

v. Greentree Transp. Trucking Co., 293 F.3d 120, 125 (3d Cir. 2002). “Summary

judgment is appropriate when ‘there is no genuine issue of material fact and . . . the

moving party is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.

56(c)). On motion for summary judgment, a court “must view the facts in the light most

favorable to the non-moving party, and draw all reasonable inferences therefrom in that

party’s favor.” N.J. Transit Corp. v. Harsco Corp., 497 F.3d 323, 326 (3d Cir. 2007).

                                             III.

       Section 59:4-2 of the NJTCA establishes state liability for dangerous conditions

that exist on public property. See Manna v. State, 609 A.2d 757, 760 (N.J. 1992). The

statute 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




                                              4
is reasonably foreseeable that it will be used.” N.J. Stat. Ann. § 59:4-1(a). A public

entity will be liable for a dangerous condition on its property

       if the plaintiff establishes that the property was in dangerous condition at
       the time of the injury, that the injury was proximately caused by the
       dangerous condition, [and] that the dangerous condition created a
       reasonably foreseeable risk of the kind of injury which was incurred . . .

N.J. Stat. Ann. § 59:4-2. The plaintiff must also establish that an agent of the State

created the dangerous condition or that the State had actual or constructive knowledge of

the condition and time to take measures to protect against the condition. Id.

       As the District Court correctly noted, “any immunity provision in the act or by

common law will prevail over the liability sections.” Pico v. New Jersey, 560 A.2d 1193,

1197 (N.J. 1989). Thus, a court’s first inquiry is “whether a specific provision affords

immunity to the public entity for the tortious act or omission.” (Dist. Ct. Slip Op. at 6.)

The District Court reasoned that, because Stasul’s dangerous condition claim necessarily

alleged a failure of the State to enact a speed limit and post signs, the statutory immunities

for those liabilities precluded suit under N.J. Stat. Ann. § 59:4-2. We agree.

       Stasul alleges that the interstate exit ramp was in a dangerous condition at the time

of Mr. Rodriguez’s accident. In Plaintiff’s Supplemental Statement of Facts, Stasul

alleged that a “maintenance resurfacing project” took place on the exit ramp in 1999 and

2000, during which two inches of asphalt were removed and replaced. (App. 55a.)

Carlos Ulloa, Principal Transportation Engineer with the New Jersey Department of

Transportation, was involved in that resurfacing project and testified that the resurfacing

                                              5
was a significant change to the roadway and that it may have resulted in cars traveling

faster on the exit ramp. (App. 353a, 358a.) Stasul’s expert report indicated that the

resurfacing was conducted in the area of the accident. (App. 42a-26.)

       Even if we assume arguendo that this evidence demonstrates that the maintenance

project resulted in a faster exit ramp, Stasul’s claim still does not survive. Stasul

repeatedly argues that the State should have rectified this condition by posting speed limit

signs. In other words, Stasul alleges it is the driver’s lack of knowledge of the

appropriate speed limit, and not the condition of the road itself, that is dangerous. (See

App. 68a (Stasul arguing that the road was in a dangerous condition because it “is

important for the driver to know [the speed] before he begins to travel on the road.

Otherwise, he has no way of knowing what the safe speed is for the roadway”).) This

places Stasul’s dangerous condition claim squarely within the immunities of N.J. Stat.

Ann. §§ 59:2-3(b) and 59:4-5.

       Stasul argues that she falls within the reasoning in Daniel v. State, 571 A.2d 1329

(N.J. Super. Ct. App. Div. 1990), where the court held that the State could be liable for

injuries resulting from a road maintenance project that created a dangerous condition. In

Daniels, the plaintiff brought a claim against the State of New Jersey for wrongful death

resulting from an automobile accident after a car hit a road median and catapulted into

oncoming traffic. Id. at 1332-33. The plaintiff alleged that the accident was caused by

maintenance work on the median which had the effect of reducing the curb height of the



                                              6
median from its original eight inches to two inches. Id. at 1332. The State asserted its

immunity under N.J. Stat. Ann. § 59:4-6, which immunizes the State for “improvements”

to public property pursuant to a “plan” or “design.” The court rejected the State’s

argument that road maintenance was an “improvement” within the statutory meaning and

held that N.J. Stat. Ann. § 59:4-6 “does not immunize a governmental body from

responsibility for dangerous conditions created by its careless or negligent affirmative

acts arising out of its maintenance as distinguished from improvements to its property.”

571 A.2d at 1346.

       Daniels, however, stands for the limited proposition that immunity under N.J. Stat.

Ann. § 59:4-6 for “improvements” does not immunize the State from negligent road

maintenance claims. Daniels does not preclude application of the myriad other statutory

immunities if a specific claim alleges a State act or omission that falls within those

immunities. Here, Stasul’s dangerous condition claim is inextricably linked to her claims

that the State failed to post speed limit or emergency signs and failed to enact a lower

default speed limit. (See App. 69a (Stasul alleging the road was in a dangerous condition

because the State “fail[ed] to post this speed for the roadway”).) The record is devoid of

any evidence, or even an allegation, that a faster exit ramp is itself a dangerous

condition.1


       1
        For this reason, we alternatively hold that the dangerous condition claim cannot
survive summary judgment because Stasul has not demonstrated that a dispute of material
fact exists as to whether a faster ramp is a dangerous condition. See Fed. R. Civ. P. 56(c).

                                              7
      Because any claim premised on the State’s alleged failure to post signs or enact a

lower default speed limit are clearly immunized under N.J. Stat. Ann. §§ 59:2-3(b) and

59:4-5, the District Court did not err in granting summary judgment on immunity

grounds.

                                           IV.

      For the foregoing reasons, we will affirm the decision of the District Court.




                                            8
