A Potential Tort Claims “Weather Immunity” Case for the Supreme Court?

Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253 (App. Div. 2011). Plaintiff slipped on ice and fell on a sidewalk that abuts a “multi-unit residential property” operated by defendant Hoboken Housing Authority. Plaintiff sued, and defendants won summary judgment based on various immunities afforded by the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. On plaintiff’s appeal, the Appellate Division reversed. Judge Fuentes wrote the opinion.

The opinion contains a useful discussion of several Tort Claims Act immunities. But the most notable aspect of the decision may be its application of Bligen v. Jersey City Housing Authority, 131 N.J. 124 (1993), and the “weather immunity” provision of N.J.S.A. 59:4-7. In Bligen, the Court held that the weather immunity provision, which immunizes against injuries caused “solely by the effect on the use of streets and highways of weather conditions,” did not bar suit for an injury sustained on the driveway of a housing authority premises. The driveway was neither a “street” nor a “highway.” In Tymczyszyn, the panel concluded that “[t]he same logic excludes ‘sidewalks’ as places to which the immunity provision applies under N.J.S.A. 59:4-7.”

Judge Fuentes acknowledged, however, that Bligen had relied on the Municipal Land Use Law’s definition of “street,” which includes “sidewalks.” N.J.S.A. 40:55D-7. Despite that, the panel believed that its decision excluding sidewalks from “weather immunity” was “not inconsistent with the thrust of the Court’s reasoning in Bligen.” The opinion went on to explain that Bligen was based on “the practical reality that the State cannot be everywhere immediately following a snow storm.” The panel found it not unreasonable, in the context of that practical reality, to require a housing authority to clear snow and ice from “the limited area of an abutting sidewalk.”

But defendant had cleared snow and ice from the sidewalk, creating a path for pedestrians, while leaving snow piled up next to that path. Plaintiff’s theory of the case was that defendant should have cleared the entire sidewalk, not just a path, since the remaining snow could and allegedly did melt and refreeze, causing plaintiff’s injury. Thus, the duty to clear that the panel permitted to be asserted, though limited to a small physical area (sidewalks) was, at least arguably, not consistent with the “practical reality” that Bligen may have contemplated. It may not be realistic to expect a public entity to clear every bit of snow and ice from all the sidewalks in a large, “multi-unit residential” complex, especially where (as was the case here, as Judge Fuentes recited) snow falls repeatedly over the course of several days.

Regardless of whether the panel’s decision is correct, the case could be one for the Supreme Court. The Court might wish to clarify Bligen, one way or the other, on the issue of how much snow clearing is required, or on the question whether the reliance in Bligen on the Municipal Land Use Law definition of “street,” which excluded the driveway involved there, should have led to immunity in this case, where the injury occurred on a sidewalk, which the Municipal Land Use Law definition does cover.

The Supreme Court did, however, recently decide another sidewalk snow and ice removal case from Hoboken. It may be that the Court has had its fill of snow and ice, though that case involved common law immunity for a condominium association rather than Tort Claims Act immunity for a public entity.