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    SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

    On December 14, 1998, DOT was conducting a roving cleaning operation on the left-hand side of the northbound lanes of Route 287 in Montville Township, collecting and discarding debris located along the barrier that divides the northbound and southbound lanes of the highway. DOT did not close the left-hand lane of Route 287 during this operation. Instead, approximately one-half to one mile before the roving cleaning operation, DOT located a truck equipped with a flashing sign that cautioned “Left Lane Closed Ahead. The roving cleaning operation itself consisted of eight vehicles. Bringing up the rear of this caravan was the dump truck driven by McDaniel, which was equipped with an impact attenuator and flashing directional arrowboard, followed by another dump truck some 500 feet behind. Because of the varying widths of the shoulder along the barrier, on occasion the caravan would encroach on the left lane of the highway, thereby blocking travel in that lane.

    Plaintiff Edward Coyne was traveling in his van in the left lane of northbound Route 287 at sixty-five to seventy miles an hour. Coyne was “boxed-in” by two tractor-trailers, one immediately in front of him and another immediately to his right. Without much warning, the tractor-trailer in front moved into the center lane. Coyne then saw the flashing directional arrowhead on the rear of the dump truck driven by McDaniel and realized he could no longer remain in the left lane. Despite several maneuvers in an attempt to move into the center lane, Coyne ran out of road and plowed into the impact attenuator attached to the rear of the dump truck driven by McDaniel. Coyne suffered significant injuries.

    Coyne and his wife sued DOT, McDaniel and others. DOT asserted that its actions were immune from suit under the discretionary immunity provision of the Tort Claims Act and that, in any event, its actions were not “palpably unreasonable.” The trial court agreed with both points and entered summary judgment in favor of DOT and McDaniel. In a split-decision, the Appellate Division affirmed. The majority of the Appellate Division panel held that DOT’s actions were entitled to discretionary act immunity. Coyne v. State, 366 N.J. Super 578 (App. Div. 2004). Because of that holding, the panel didn’t reach the question whether DOT’s and McDaniel’s actions were “palpably unreasonable.” In dissent, Judge Kestin concluded that because the issue of whether conduct is “palpably unreasonable” is a question for the jury and therefore could not be resolved on a motion for summary judgment, the posture of this case precludes resolution strictly based upon “discretionary act immunity.”

    Coyne appealed as of right on the sole issue raised by the dissent in the Appellate Division. Coyne also sought certification on four additional issues, which we granted. The Court also granted amicus curiae status to the Association of Trial Lawyers of America – New Jersey.

HELD: On the record developed below on defendants’ motion for summary judgment, the Department of Transportation’s actions and McDaniel’s actions were not immune. We are unable, however, to determine on that record whether DOT’s and McDaniel’s actions were “palpably unreasonable.” Therefore, we reverse the judgment of the Appellate Division, and remand this case to the trial court.

1. In Willis v. Dep’t of Cons. & Econ. Dev., 55 N.J. 534 (1970), sovereign immunity as to tort claims in this State was abrogated. Willis did not, however, eliminate the common-law doctrine of sovereign immunity altogether. Following Willis, the Legislature enacted the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, a comprehensive statutory scheme establishing the parameters of tort claims against the State. Significantly, the Tort Claims Act instructs that “[e]xcept as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (N.J.S.A. 59:2-1a.] The guiding principle of the Tort Claims Act is that “immunity from tort liability is the general rule and liability is the exception,” Garrison v. Tp. Of Middletown, 154 N.J. 282, 286 (1998). As a corollary to that principle, the Tort Claims Act is clear as to whether liability attaches to the State and its instrumentalities when they perform discretionary activities: “[a] public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity.” N.J.S.A. 59:2-3a. (Pp. 6-8)

2. At the center of this controversy is the interpretation and application of DOT’s Safety Manual. However, before one can reach any determination of liability, plaintiff must first vault the threshold issue of whether the DOT’s Safety Manual represents “the exercise of judgment or discretion vested in [DOT]” as required by N.J.S.A. 59:2-3a. In reaching that threshold issue, our analysis is informed by the statutory caveat that “[n]othing in [N.J.S.A. 59:2-3] shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.” N.J.S.A. 59:2-3d. We also have made clear that “the ‘exercise of …discretion’ in N.J.S.A. 59:2-3(a) refers to actual, high-level policymaking decisions involving the balancing of competing considerations.” Costa v. Josey, 83 N.J. 49, 55 (1980). This analysis informs whether the DOT’s Safety Manual triggers the application of the discretionary act immunity provisions of N.J.S.A. 59:2-3. (Pp. 8-10)

3. DOT relies on a characterization of the convoy of cleaning vehicles and personnel as a “slow moving operation,” requiring certain precautions as outlined in the DOT’s Safety Manual. According to DOT, the safety precautions it undertook during its cleaning operation on the northbound lanes of Route 287 on December 14, 1998 were not only consistent with the requirements of the DOT’s Safety Manual, but exceeded those requirements. DOT’s assertions as to the efforts undertaken serve as the predicate for DOT’s claim of immunity. We disagree with DOT’s basic premise that behavior consonant with the DOT’s Safety Manual automatically immunizes that behavior. Straightforward logic compels the conclusion that the State cannot, under the guise of engaging in a discretionary act, delegate to a road crew the protections from suit afforded only to policy makers. (Pp. 10-14)

4. Our determination that DOT’s highway cleaning operations on December 14, 1998 are not immune does not bring our inquiry to an end. We must now address whether DOT’s actions were “palpably unreasonable.” N.J.S.A. 59:2-3d. “Palpably unreasonable” means more than ordinary negligence, and imposes a steep burden on a plaintiff. Plaintiff bears the burden of proving that defendant acted in a palpably unreasonable manner. We cannot determine, on the summary judgment record before us, whether plaintiff’s claim that DOT should have done more in the way of safety precautions than what the DOT’s Safety Manual required is sufficient to determine that DOT’s actions were “palpably unreasonable.” Because the record lacks specificity on the question, we remand this case to the trial court for its discrete determination on the summary judgment record before it whether DOT’s and McDaniel’s actions were “palpably unreasonable.” (Pp. 14-16)

    The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for further proceedings consistent with this opinion.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in JUSTICE RIVERA-SOTO’s opinion.

    Plaintiffs-Appellants,

        v.

STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION and VINCENT M. MCDANIEL,

    Defendants-Respondents,

and

JOHN DOE 1-10, JANE DOE 1-10 and JOHN DOE CORP. 1-10, fictitiously named,

Defendants.

Argued November 30, 2004 – Decided March 2, 2005

On certification to the Superior Court, Appellate Division, whose opinion is
reported at 366 N.J. Super. 578 (2004).

E. Drew Britcher argued the cause for appellants (Britcher, Leone & Roth, attorneys; Mr. Britcher and Jessica E. Choper, on the briefs).

Howard J. McCoach, Deputy Attorney General, argued the cause for respondents (Peter C. Harvey, Attorney General of New Jersey, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Jacqueline A. Augustine, Deputy Attorney General, on the brief).

Anne P. McHugh submitted a brief on behalf
of amicus curiae, Association of Trial Lawyers of America-New Jersey (Pellettieri, Rabstein & Altman, attorneys).

    JUSTICE RIVERA-SOTO delivered the opinion of the Court.
    This appeal raises the serial issues whether the discretionary immunity provisions of the Tort Claims Act, N.J.S.A. 59:2-3a, bar the underlying negligence claim pressed by plaintiff Edward Coyne against defendants the New Jersey Department of Transportation (DOT) and Vincent McDaniel, one of its employees, and, if not, whether defendants’ actions were “palpably unreasonable.” N.J.S.A. 59:2-3d. We hold that, on the record developed below on defendants’ motion for summary judgment, DOT’s and McDaniel’s actions were not immune. We are unable, however, to determine on that record whether DOT’s and McDaniel’s actions were “palpably unreasonable.” Therefore, we reverse the judgment of the Appellate Division, and remand this case to the trial court.

[Kolitch v. Lindedahl, 100 N.J. 485, 492-93 (1985) (citations omitted).]

However, before one can reach any determination of liability, plaintiff must first vault the threshold issue of whether the DOT’s Safety Manual represents “the exercise of judgment or discretion vested in [DOT]” as required by N.J.S.A. 59:2-3a. In reaching that threshold issue, our analysis is informed by the statutory caveat that “[n]othing in [N.J.S.A. 59:2-3] shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.” N.J.S.A. 59:2-3d; see also Costa v. Josey, 83 N.J. 49, 54-55 (1980) (In interpreting N.J.S.A. 59:2-3, “subdivision (a) should be read in conjunction with the areas of protected discretion expressly outlined in subparagraphs (b), (c) and (d).”).
    We also have made clear that
the “exercise of . . . discretion” in N.J.S.A. 59:2-3(a) refers to actual, high-level policymaking decisions involving the balancing of competing considerations. Such decisions have been traditionally entrusted to coordinate branches of government, and courts, utilizing standard tort principles, are ill-equipped to interfere with them. These discretionary determinations likely include such decisions as “whether to utilize the Department’s resources and expend funds for the maintenance of [a] road; whether to repair the road by patching or resurfacing; [and] what roads should be repaired. . . .” Once it is determined that a maintenance program involving resurfacing will be undertaken, however, the government will ordinarily be held to the standard of care set forth in N.J.S.A. 59:4-2. Although the exercise of some discretion may still be involved (e.g., the transportation planners may choose one resurfacing plan over another), the immunity rule will protect only basic policy determinations.

[Costa v. Josey, 83 N.J. 49, 55 (1980) (citation omitted).]

This analysis informs whether the DOT’s Safety Manual triggers the application of the discretionary act immunity provisions of N.J.S.A. 59:2-3.

[Id. at 540 (internal quotations and citation omitted).]

The Brill summary judgment standard is codified in our Court Rules:
    The judgment or order sought shall be rendered forthwith if 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. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.

[New Jersey Dep’t of Transp., Safety Manual 16 (1985) (DOT’s Safety Manual).]

Thus, according to DOT, the safety precautions it undertook during its cleaning operation on the northbound lanes of Route 287 on December 14, 1998 were not only consistent with the requirements of the DOT’s Safety Manual, but exceeded those requirements. According to one of the DOT drivers in the cleaning convoy, the moving messageboard flashing “Left Lane Closed Ahead” that DOT placed one-half to one mile before the roving cleaning operation “wasn’t even required [by the DOT’s Safety Manual]. We decided to put it out there anyway.” DOT’s assertions as to the efforts undertaken serve as the predicate for DOT’s claim of immunity.
We disagree with DOT’s basic premise that behavior consonant with the DOT’s Safety Manual automatically immunizes that behavior. The DOT’s Safety Manual introduces the safety requirements for roadway operations with these prominent disclaimers:
1.    During any work operation where men and equipment are engaged on or near the main pavement or shoulders of the highway, appropriate protective devices shall be provided to protect personnel and the traveling public. NO ONE STANDARD SEQUENCE OF SIGNS OR OTHER TRAFFIC CONTROL DEVICES CAN BE SET UP AS AN INFLEXIBLE ARRANGEMENT FOR ALL SITUATIONS DUE TO THE VARIETY OF CONDITIONS ENCOUNTERED. A ROAD CREW’S RESPONSIBILITY SHOULD BE DIRECTED TOWARD THE SAFE AND EXPEDITIOUS MOVEMENT OF TRAFFIC THROUGH A CONSTRUCTION OR MAINTENANCE WORK SITE, AND TO THE SAFETY OF THE WORK FORCE PERFORMING THESE OPERATIONS.

2.    IT SHALL BE THE RESPONSIBILITY OF THE PERSON IN CHARGE TO INSTITUTE THE PLACING OF ALL APPROPRIATE CAUTIONARY DEVICES AND CONTROLS AS MAY BE REQUIRED FOR THE PARTICULAR JOB. IT SHOULD BE EMPHASIZED THAT THESE ARE MINIMUM DESIRABLE STANDARDS FOR NORMAL SITUATIONS AND THAT ADDITIONAL PROTECTION SHOULD BE CONSIDERED WHEN COMPLEXITIES AND HAZARDS PREVAIL.

[Costa v. Josey, supra, 83 N.J. at 60.]

    But, more importantly, I find, for the record, that the provisions under 59:2-3 here do provide for the immunity of the State of New Jersey in this case. And I will grant the judgment - - summary judgment application filed by the defendant.

Because the record lacks specificity on the question, we remand this case to the trial court for its discrete determination on the summary judgment record before it whether DOT’s and McDaniel’s actions were “palpably unreasonable,” that is, whether DOT’s and McDaniel’s actions “implie[d] behavior that is patently unacceptable under any given circumstances” such that “it must be manifest and obvious that no prudent person would approve of its course of action or inaction.” Kolitch v. Lindedahl, supra, 100 N.J. at 493.

    CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in JUSTICE RIVERA-SOTO’s opinion.

EDWARD T. COYNE and SANDRA
COYNE, his wife,

    Plaintiffs-Appellants,

        v.

STATE OF NEW JERSEY,
DEPARTMENT OF TRANSPORTATION
and VINCENT M. MCDANIEL,    

    Defendants-Respondents.

DECIDED March 2, 2005
    Chief Justice Poritz    PRESIDING
OPINION BY Justice Rivera-Soto    
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY    

CHECKLIST	REVERSE AND REMAND
CHIEF JUSTICE PORITZ	X
JUSTICE LONG	X
JUSTICE LaVECCHIA	X
JUSTICE ZAZZALI	X
JUSTICE ALBIN	X
JUSTICE WALLACE	X
JUSTICE RIVERA-SOTO	X
TOTALS	7