New Jersey Public Entities Enjoy Immunity For Negligent Removal Of Snow And Ice But Not For Dangerous Conditions Of Property

It is a well-settled premise that public entities (the State of New Jersey and their political subdivisions) enjoy common law tort immunity for the negligent removal of snow from their public ways. Miehl v. Darpino, 53 N.J. 49 (1968); Rochinsky v. State of New Jersey D.O.T., 110 N.J. 339 (1988). However, although they may be immune for the negligent removal of snow and ice, a suit for personal injury may be maintained against a public entity if it can be shown that the cause of the personal injuries complained of was related to a condition of the property and not the failure to remove snow and ice.

The common law tort immunity granted to public entities for the negligent removal of snow was first espoused by the Supreme Court of New Jersey in the case of Miehl v. Darpino, 53 N.J. 49 (1968). There, a pedestrian was injured when he was unable to avoid an oncoming vehicle due to the presence of a pile of accumulated snow that was located on the side of the roadway and blocked his path to the abutting sidewalk. Id. at 50-51. The Plaintiff brought his cause of action against the City of Hammonton alleging that improper plowing activity proximately caused his injuries. Id. at 50-51. The Supreme Court, in analyzing the Plaintiff’s proposed cause of action, noted that municipal tort liability law was going through serious changes and, starting with that premise, set out to determine whether a municipality should enjoy immunity for negligent snow removal as a matter of public policy. Id. at 52-53. Thereafter, the Court set forth and analyzed the burdens which are placed upon public entities when they are required to remove snow from public ways, and recognized that “snow is a common enemy interfering with normal pedestrian and vehicular traffic and on occasion results in the complete paralysis thereof.” Id. at 53. In order to avoid the liability presented, a public entity would be duty bound to “in effect ‘broom sweep’ all the travelled portions of the streets, driveways and sidewalks where natural snowfall has been disturbed by any removal of street snow.” Id. at 53. Taking cost and availability of manpower into consideration, the Court held that public entities would be entitled to immunity for the negligent removal of snow from their properties. Id. at 53-54.

Upon the enactment of the Tort Claims Act in 1972 (which provides for specific public entity immunity for injuries caused solely by weather conditions upon streets and highways) there was uncertainty at the Appellate level as to whether the common law snow removal immunity survived the legislation . See Menca v. The Borough of Hopatcong, 157 N.J. Super. 67 (App.Div.), cert. denied, 77 N.J. 480 (1978) (granting summary judgment in favor of the public entity noting that nothing in the Tort Claims Act seemed to abolish the common law immunity); Paternoster v. New Jersey Transportation Department, 190 N.J. Super. 11 (App.Div.) cert. denied, 96 N.J. 258 (1983) (holding that the common law snow removal immunity did not apply and instead the statutory “palpably unreasonable” standard should be applied to all alleged dangerous conditions). The Supreme Court of New Jersey quickly addressed this split of authority in the case of Rochinsky v. New Jersey D.O.T., 110 N.J. 399 (1988). After delving into the historic background and Legislative comment on the Tort Claims Act, the Rochinsky Court specifically noted that the common law snow removal immunity provided in Miehl was not expressly abrogated under the Act and reasoned that the practical affect of Miehl’s continued application would be consistent with the underlying goals of the Act. Id. at 411-412. “Absent a clear and specific indication that the Legislature intended to impose liability that could have such a radical impact on the fiscal affairs of public entities, we conclude that the Legislature desired the Miehl immunity to remain intact. As Legislature itself stated when it passed the Act ‘[s]hould further study in future years demonstrate that additional liability of public entities is justified, such liability may then be imposed by the Legislature within carefully drafted limits.'” Id. at 414 citing N.J.S.A. 59:2-1 Task Force Comment.

The Supreme Court of New Jersey was again asked to evaluate the Miehl snow removal immunity in the case of Bligen v. Jersey City Housing Authority, 131 N.J. 124 (1993). The Plaintiff there slipped and fell on an accumulation of ice in the driveway and parking lot outside of her apartment complex. Id. at 127. Importantly, the apartment complex, the driveway and the parking lot were all owned, controlled and maintained by the Defendant, Jersey City Housing Authority. Id. at 126. According to the Plaintiff, neither the driveway nor the parking lot area had been cleared of snow that had fallen over the previous weekend. Id. at 127. The Plaintiff further alleged that the ice she slipped on was caused by compacted snow formed by other pedestrian traffic. Id. at 127. The Plaintiff’s fall occurred when she stepped off of the curb and into the parking lot area severely fracturing her wrist. Id.

The Defendant, Jersey City Housing Authority moved for Summary Judgment alleging that they were immune from liability based on both the weather immunity provided under N.J.S.A. 59:4-7 and the common law immunity for snow removal provided in Miehl. Id. at 128. The Court first rejected the Defendant’s argument that they were shielded under N.J.S.A. 59:4-7 reasoning that the driveway and parking lot did not constitute a “street” or “highway” under the intent of the Tort Claims Act. Id. at 129-130. The Court next addressed the Defendant’s assertion that they were immunized by the common law immunity for snow removal. After sifting through the relevant case law, including the cases of Miehl, supra and Rochinsky, supra, the Supreme Court indicated that the common thread running through the pre and post-Tort Claims Act snow removal cases is the limitless duty placed upon a public entity to remove snow from all of their public ways. Id. at 133. Importantly, the Court weighed this policy consideration against the duty imposed on municipal landlords to maintain their premises to prevent against foreseeable injuries. Id. at 134-135. In reaching its conclusion, the Court focused on the fact that case law has imposed tort liability upon municipal landlords despite municipalities’ repeated arguments that they should be immune due to their governmental nature. Id. at 136. Thus, the Court concluded that the common law snow removal immunity promulgated under Miehl does not apply to public housing authorities. Id. at 136. The Supreme Court’s holding in Bligen was recently discussed and analyzed by the Appellate Division in the unreported decision of Edwards v. The County of Mercer, A-6371-94T5, (decided June 21, 1996) (Attached hereto as Exhibit ). The facts before the Appellate Division in Edwards are analogous to the facts now before the Court on this Motion for Summary Judgment. On December 14, 1995 Plaintiff Edwards parked her car in a Geriatric Center parking lot which was owned, controlled and maintained by the County of Mercer. Id. at 2. Not unlike the Plaintiff in the case at bar, Plaintiff Edwards claims that she slipped on ice in an area owned controlled and maintained by a Public Entity. Id. at 2. After a period of discovery, the County of Mercer filed a Motion for Summary Judgment relying upon the common law snow removal immunity. Id. at 3. The County’s Motion for Summary Judgment was denied by the trial judge who relied on the Supreme Court’s holding in Bligen. Id. at page 4.

In overturning the trial court’s denial of Summary Judgment, the Appellate Division squarely addressed and distinguished the Supreme Court’s holding in Bligen from the facts before it. Id. at 8-9. Specifically, the Appellate Division noted the focus of the Bligen holding on the traditional common law duty imposed on municipal landlords to protect against reasonably foreseeable damages. Id. at 8. The Appellate Division aptly stated: [W]e reject plaintiff’s argument that Bligen can be extended to any public facility that has a maintenance staff and a “finite” area to maintain. Accepting plaintiff’s argument would in effect destroy the common-law snow removal immunity afforded to public entities in respect of all public buildings and grounds, leaving only the statutory immunity provided by N.J.S.A. 59:4-7 applicable to streets and highways. We find no expression in Bligen warranting such a broad exception to public entity immunity for snow removal activity, and as an intermediate Appellate Court we decline to do so. Id. at 8-9.

Importantly, the Appellate Division recently confirmed its position on the common law snow removal immunity in the reported decision of Davenport v. Borough of Closter, N.J.Super. (App. Div. 1996). There, the plaintiff slipped and fell on an accumulation of snow and ice on property owned by the Borough of Closter. It was alleged that the icy condition was caused by the negligent piling of snow by Borough employees, that prevented the runoff of surface water. Interestingly, the plaintiff also alleged that the Borough had notice of this dangerous condition and failed to remedy the situation or provide adequate warning thereby attempting to establish liability against the Borough pursuant to N.J.S.A. 59:4-2 (palpably dangerous condition of property) and the case of Meta v. Township of Cherry Hill, 152 N.J. Super. 228 (App. Div.) cert. denied 75 N.J. 587 (1977). The trial court rejected these arguments and entered summary judgment in favor of the public entity. The Appellate Division, in affirming the decision of the trial court, concluded that the plaintiff’s allegations stem solely from the snow removal activities of the Borough that are immune from suit. In support of its conclusion, the court looked to the history of the snow removal immunity and distinguished the holdings of Meta and Bligen from the facts contained in the record before it. With regard to Meta, the court acknowledged that the plaintiff’s injury there was caused by a build up of water on the side of the public road but pointed out that the cause of the water’s presence was not the result of any action or inaction on behalf of the Township’s snow removal forces. The court further noted that summary judgment was denied in Meta solely because a jury had to decide whether the build up of water on the roadside was “palpably unreasonable” pursuant to the statutory scheme and that issue could not be reached in this case because of the snow removal immunity afforded to the defendant. Not unlike the Appellate panel in Edwards, the Davenport court also distinguished the Supreme Court’s holding in Bligen on the basis that an exception was carved out of the general immunity for municipal landlords who have “a duty to maintain the premises to prevent foreseeable injuries.”

Accordingly, where an injury is the result of a slip and fall on ice or snow on public property, it is important to have an experienced attorney evaluate the facts as soon as possible to determine and establish any and all potential causes of action.