Opinion
DOCKET NO. A-2928-11T2
03-18-2013
LAUREEN HOLUB, Plaintiff-Appellant, v. LIVINGSTON BOARD OF EDUCATION, Defendant-Respondent, and TOWNSHIP OF LIVINGSTON, Defendant.
Lane M. Ferdinand argued the cause for appellant (Law Offices of Lane Ferdinand, P.C., attorneys; Mr. Ferdinand, on the brief). Ian C. Doris argued the cause for respondent (Keenan & Doris, L.L.C., attorneys; Mr. Doris, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Hayden.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7798-10.
Lane M. Ferdinand argued the cause for appellant (Law Offices of Lane Ferdinand, P.C., attorneys; Mr. Ferdinand, on the brief).
Ian C. Doris argued the cause for respondent (Keenan & Doris, L.L.C., attorneys; Mr. Doris, on the brief). PER CURIAM
Plaintiff Laureen Holub appeals from the February 8, 2012 Law Division order dismissing her complaint on summary judgment. She argues that defendant Livingston Board of Education's negligence in removing snow from school property caused her to fall and be injured. Based upon the well-established common law immunity conferred upon public entities in connection with snow removal, we affirm.
We view the facts in the light most favorable to the plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On December 21, 2009, plaintiff slipped and fell on a patch of ice at Hillside Elementary School, which the Board owned and maintained. On the previous day, approximately six inches of snow had fallen in the school's vicinity. The Board undertook snow and ice removal activities for its nine schools consisting of snow plowing and salt spreading. The custodians checked the grounds when they arrived for work in the morning and throughout the day.
In the afternoon, plaintiff walked onto the school grounds towards the playground to pick up her granddaughter from school. According to plaintiff, after going down a flight of stairs, which had been shoveled and salted, she stepped onto an icy asphalt landing where she slipped and fell, sustaining injury. In an interrogatory answer, plaintiff recalled the incident:
I was descending down the stairs in the playground area[] and slipped on a sheet of ice that accumulated on a platform that was located at the bottom of the stairs. There
were efforts made to clear the area in question thus eliminating any defense regarding allocation of resources. The bottom line is that the party who performed salting/clearing of the area did a bad job by reason of missing spots that remained icy and there were no efforts made to address said areas which were untreated.
Plaintiff filed a civil negligence complaint against the Board and the Township, seeking damages for her injuries sustained as a result of her fall on the landing. After discovery was completed, defendants moved for summary judgment based upon the common law principle of snow removal immunity. Having heard oral argument, Judge Francine A. Schott granted the Board's motion and dismissed the complaint, reasoning:
[The common-law snow-removal] immunity provides that the snow removal activities of a municipal entity shall not render that entity liable to one who is injured for lack of those activities, for doing those activities poorly or, as argued by the plaintiff here, for only doing them halfway.
. . . .
[I]n this case, this is a school district. It has more than one property, more than one school, and it goes to the very heart of the issue of the immunity, whether or not we're going to hold entities, governmental entities liable for the very breadth and extent of liability that could be imposed upon them every time it snows.
On appeal, plaintiff contends that the snow was negligently removed and, thus, the common law snow removal immunity does not apply here. Plaintiff attempts to distinguish between failure to remove snow due to allocation of scarce municipal resources and inadequate removal when the municipality determines to allocate the resources to remove the snow. The latter happened here, according to plaintiff, and gives rise to potential liability under the Tort Claim Act (TCA), N.J.S.A. 59:1-1 to 12-3. We disagree.
The Supreme Court has made clear that the common law snow removal immunity applies when snow or ice is an alleged cause of an accident. Miehl v. Darpino, 53 N.J. 49, 53 (1968) (holding that imposing liability for snow removal activities would require a public entity to "'broom sweep' all the traveled portion of the streets, driveways and sidewalks"). Further, the Court recognized that the enactment of the TCA, including N.J.S.A. 59:4-7, provided governmental immunity for weather related accidents on streets and highways but did not abrogate the common law immunity under Miehl. Rochinsky v. N.J. Dept. of Transp., 110 N.J. 399, 412-15 (1988). In Rochinsky, our Court explained the policy behind governmental common law immunity for injuries occurring due to ice and snow:
By their very nature, however, snow-removal activities leave behind "dangerous conditions." No matter how effective an entity's snow-removal activities may be, a multitude of claims could be filed after every snowstorm. We can conceive of no
other governmental function that would expose public entities to more litigation if this immunity were to be abrogated.
Moreover, irrespective of the outcome of such litigation, the cost of defending claims would be substantial. Damage awards and settlement costs would inevitably drive up public entity insurance costs. It was precisely such a situation that the Legislature sought to avoid by enacting the Tort Claims Act.
[Id. at 413-414.]
Plaintiff does not dispute that shoveling, plowing and salting fall "under the umbrella of snow removal activities." Lathers v. Twp. of W. Windsor, 308 N.J. Super. 301, 305 (App. Div. 1998) (citation omitted). Rather, plaintiff contends that, here, the Board undertook to use its resources to remove the snow but did it negligently "by reason of missing spots that remained icy." Plaintiff maintains that this "palpably unreasonable" conduct negated the snow removal immunity and established TCA liability. Such an argument is unavailing and contrary to the many cases where snow removal immunity was found even when conditions existed after the public entity had engaged in snow removal activities. See e.g., Luchejko v. City of Hoboken, 414 N.J. Super. 302, 317-18 (App. Div. 2010) (city immune where its snow removal activities created a snow bank, which led to icy conditions causing the plaintiff's fall), aff'd on other grounds, 207 N.J. 191 (2011); Lathers, supra, 308 N.J. Super. at 304-05 (Township immune where snow pile left next to sidewalk melted and then froze causing condition where the plaintiff fell); Davenport v. Borough of Closter, 294 N.J. Super. 635, 640-41 (App. Div. 1996) (Borough immune where inadequate snow removal on a sidewalk and street forced plaintiff to walk through a vacant lot and fall).
We recognize that a possible exception to common law immunity might occur if the public entity's conduct was "unrelated to snow removal activity" and amounted to "palpably unreasonable failure to warn of a dangerous condition." Rochinsky, supra, 110 N.J. at 415 n.7. No such conduct has been suggested by the record here. Although the outer limits of the common law snow removal immunity have not been defined, plaintiff's claim that the Board's snow removal efforts left some spots untreated and icy hardly describes an egregious or exceptional occurrence during routine snow removal activity. In our view, plaintiff's negligence claims fall squarely within those activities immunized by Miehl and Rochinsky.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION