Opinion
DOCKET NO. A-0358-13T3
08-08-2014
LAURIE ORTIZ GUERRERO, Plaintiff-Appellant, v. TOMS RIVER REGIONAL SCHOOLS BOARD OF EDUCATION, a business entity, Defendant-Respondent.
Paul R. Garelick argued the cause for appellant (Lombardi & Lombardi, P.A., attorneys; Mr. Garelick, on the brief). Thomas E. Monahan argued the cause for respondent (Gilmore & Monahan, P.A., attorneys; Mr. Monahan, of counsel; Patrick L. Cimino, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Lihotz. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3890-11. Paul R. Garelick argued the cause for appellant (Lombardi & Lombardi, P.A., attorneys; Mr. Garelick, on the brief). Thomas E. Monahan argued the cause for respondent (Gilmore & Monahan, P.A., attorneys; Mr. Monahan, of counsel; Patrick L. Cimino, on the brief). PER CURIAM
Plaintiff Laurie Ortiz Guerrero appeals from the August 28, 2013 summary judgment dismissal of her complaint against defendant Toms River Regional Schools Board of Education, seeking damages for injuries she suffered in a fall, after slipping on an icy school walkway. Plaintiff argues the Law Division judge erroneously concluded defendant, as a public entity, was immune from suit. Plaintiff argues the exception to the immunity provisions of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, as set forth by the Supreme Court in Bligen v. Jersey City Housing Authority, 131 N.J. 124 (1993), applied to these facts. We disagree and affirm.
We recite the facts found in the summary judgment record, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff attended Toms River South Regional High School (South), which is one of eighteen schools in the Toms River Regional School District (District). On the morning of February 17, 2010, as she traveled between classes, plaintiff sought to avoid the crowded school hallways and decided "to go outside" so she would not be late for gym class. She exited South's E wing en route to G wing. Students frequently "go out E wing to go to buses or to go to the gym," and South's Principal Leonard Stanziano was well-aware students and teachers used this route. South did not post someone at the E wing door to prevent its use. Further, "students were not told that they couldn't use the route, and students and teachers both were allowed to do so, even during snow events."
Toms River Regional Schools, http://trschools.com/schools/ (last visited July 18, 2014).
As plaintiff exited E wing through door 18, she noticed "it was icy everywhere, so [she] tried to go back in, but . . . the doors lock from the outside in and there was nobody that could open the door for [her] so [she] couldn't go back in." There is no dispute that plaintiff immediately recognized "[t]here was ice everywhere" and the paths "were covered in ice." Plaintiff observed a "little path that was . . . very narrow and icy and people . . . coming from there w[ere] slipping and sliding and laughing and the snow was up to the sides of the little path pretty high." Plaintiff noted snow accumulated a few days earlier and stated it rained the night before her accident.
Carolyn Cecilia Adams, a South teacher, recalled a school-wide announcement made over South's public address system sometime on the day of plaintiff's fall, warning against "people going out that exit [door 18]" from the E wing area because of inclement weather. Another teacher, Lynne Szablewski, recalled being informed by "at least three" teachers at approximately 6:45 a.m. not to travel between B and E wings because "there was ice."
When plaintiff exited door 18 and stepped onto the steps, she "walked two steps and [as] soon as [she] put [her] leg here [she] slipped and fell." As a result of the fall, plaintiff twisted her left ankle, suffering a trimalleolar fracture and dislocation and fracture of the distal fibula. The next day, she underwent open reduction and internal fixation of the fracture.
South's maintenance staff had cleared snow or treated the ice on portions of school pathways the day prior to plaintiff's fall. Snow had fallen over the preceding two weeks. The record does not include details relating the date, time, and individuals performing snow removal activities. Evidence suggested the ice outside door 18 had not occurred overnight.
Joseph Dadario, the night custodian employed in February 2010, worked from 11 p.m. to 7 a.m. Dadario was responsible for removing snow from the entire campus. Although he described his usual snow removal routine, he could not recall any specific details of his work on February 17, 2010. Typically, he started "in the front, the main entrance" then "usually [went] to the front, and then the back, and then the other parts of the building." He elaborated, stating he began at door 1 and went "all the way around" the premises, using a snow blower and a shovel. Typically, removing snow from South's entire campus took four hours, but there were occasions when Dadario was unable to completely remove the snow before the morning maintenance crew arrived.
Principal Stanziano did not acknowledge whether he was responsible for "'snow and ice' maintenance," as South had "someone that takes care of that in the morning" before he arrived. He admitted "maintenance" was responsible for snow and ice remediation; he did not direct their activities and the department did not coordinate with him. Further, he could not identify defendant's personnel "in charge" of maintenance when plaintiff fell, although he noted Barry Burke was South's head custodian.
Plaintiff's expert, Ronald L. Saxon, P.E., confirmed the weather conditions on the days prior to plaintiff's accident, reporting:
Snow had been widespread about N[ew] J[ersey] during February 2010, leaving residues on the ground at the reporting hours on the 17th. The last snowfall reported at Toms River had been 18 inches in the 24 hours preceding 7:00 AM on the 10th. Data for snow on the ground was missing for Toms River and Brant Beach, but in particular, at Indian Mills there had been 6 inches of snow on the ground at 5:00 PM on the 16th, and 5 inches at the same time on the 17th. At Freehold-Marlboro, there had been 11 inches of snow on the ground at 7:00 AM on the 17th. At Toms River, the maximum and minimum air temperatures had cycled between thawing or near thawing, and sub-
freezing every day of the month prior to the 17th.
He opined "to a reasonable degree of scientific and engineering probability" that the conditions on February 17
having been created no later than the 10th, and had been readily discoverable by the persons responsible for maintaining the exitway free of snow and ice, and for assuring the overall safety of the school facility, for days prior to [plaintiff's] fall. The persons responsible for maintaining the exitway free of snow and ice, and for assuring the overall safety of the school facility, i.e. Mr. Burke and Principal Stanziano, had known of, or should have known of, the snow/ice in the exitway, which exitway was in longstanding, customary, daily use by students and teachers; and that any ice in the area presented a substantial risk of injury to some of those persons known to be normally using the exitway.
Plaintiff filed her complaint alleging defendant or its employees' conduct was palpably unreasonable as they allowed South's property to contain a dangerous condition at the time of plaintiff's accident, by failing to properly inspect, maintain, repair, clean and/or care for South's E wing, which created a reasonably foreseeable risk of the kind of injury plaintiff suffered; defendant had sufficient notice to protect against the condition, and such condition proximately caused her injury. Following discovery and arbitration, defendant moved for summary judgment, arguing it was immune from suit. The trial judge considered the arguments and concluded:
In this case plaintiff is attempting to fit this case into the Bligen mold by carving out a smaller self-contained area or, as the Court described in Sykes [v. Rutgers, State University of New Jersey, 30 8 N.J. Super. 265 (1998)] "by creating a finite bounded area of hardscapes supporting its public buildings," controlled by a custodial staff or one custodian. Plaintiff's reasoning would allow any plaintiff to circumvent the purpose of the common law snow removal immunity by pointing to a specific department or location under the umbrella of the public entity.
As this case involves an injury relating to snow removal which occurred on a sidewalk controlled, owned, and/or operated by the Toms River Regional Schools Board of Education, the public entity which controls and maintains eighteen school locations in the Township of Toms River, defendant is immune from liability, and [s]ummary [j]udgment is granted.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge under Rule 4:46. Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge correctly applied the law. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party. Brill, supra, 142 N.J. at 523. We accord no deference to the motion judge's conclusions on issues of law, which we review de novo. Estate of Hanges, supra, 202 N.J. at 382-83. Like the trial court, we "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. If a genuine factual dispute exists, summary judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003). A grant of summary judgment is appropriate only when the evidence in the record "'is so onesided that one party must prevail as a matter of law[.]'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
The common-law doctrine of sovereign immunity has been replaced by the TCA, which governs tort claims against public entities. See Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 404 (1988) ("In 1972, the Legislature enacted the [TCA] in response to mounting judicial disfavor with the doctrine of sovereign immunity."). Accordingly,
"[t]he public policy of this State is that public entities shall be liable for theirThe TCA states, unless "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. 59:2-1(a). Also important here is the established common-law immunity for the snow removal activities of public entities, see Miehl v. Darpino, 53 N.J. 49, 53-54 (1968) (holding public entities are immune from liability for negligent snow removal), which "exists even though [TCA] statutory immunities may not apply." O'Connell v. N.J. Sports & Expo. Auth., 337 N.J. Super. 122, 132 (App. Div.) (citing Rochinsky, supra, 110 N.J. at 402, 405, 414), certif. denied, 168 N.J. 293 (2001). See also N.J.S.A. 59:2-1(b) (insuring that any immunity provisions provided at common law will prevail over the liability provisions of the TCA).
negligence only as set forth in the [TCA]." Pico v. State, 116 N.J. 55, 59 (1989). "[T]he dominant theme of the [TCA] is immunity, with liability as the exception." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 495 (App. Div. 2007); Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999). "As the Comment to N.J.S.A. 59:2-1 . . . states, courts should employ an analysis that first asks 'whether an immunity applies and if not, should liability attach.'" Bligen, [supra,] 131 N.J. [at] 128 (1993) (quoting Attorney General's Task Force Report on Sovereign Immunity, comment to N.J.S.A. 59:2-1 (1972)); Pico, supra, 116 N.J. at 59; Saldana v. DiMedio, 275 N.J. Super. 488, 496 (App. Div. 1994). When both liability and immunity exist, immunity prevails. N.J.S.A. 59:2-1; Tice v. Cramer, 133 N.J. 347, 356 (1993); Macaluso v. Knowles, 341 N.J. Super. 112, 117 (App. Div. 2001).
[Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.), certif. denied, 196 N.J. 461 (2008).]
We note the weather immunity provided by N.J.S.A. 59:4-7 of the TCA applies as a result of the use of streets and highways. See also Bligen, supra, 131 N.J. at 129-30 (limiting weather immunity to streets and highways and rejecting application to internal public entity driveways).
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Plaintiff acknowledges a public entity's common-law immunity for snow and ice removal on roadways; however, she maintains this case presents an exception requiring imposition of liability. Plaintiff argues the weather event had been days old and defendant undertook to use its resources to remove snow, but, thereafter, "fail[ed] to address the conditions again for a period of time[,]" causing plaintiff's accident. Plaintiff maintains this conduct negated the snow removal immunity and created a factual dispute as to whether she could establish liability. Also, because of the nature of the property, a single school building, plaintiff believes defendant's liability should be analogous to the public housing authority's liability addressed in Bligen. Defendant, however, urges Bligen is limited to a landlord-tenant relationship, between the public entity and an injured plaintiff and contends the common-law weather immunity is absolute. We examine these legal principles.
The Court has definitively stated the TCA "did not abrogate" "the absolute immunity for snow-removal activities conferred on public entities. . . . " Rochinsky, supra, 110 N.J. at 402. In Rochinsky, the Court explained the policy behind affording governmental entities 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 government 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 [TCA][.]
[Rochinsky, supra, 110 N.J. at 413-14.]
Also, the Court explicitly rejected plaintiff's argument that immunity results "only for injuries caused by weather conditions as they exist in their natural state, before snow- removal operations begin." Ibid. Rather, immunity applies when snow or ice is an alleged cause of an accident. Miehl, supra, 53 N.J. at 53. Shoveling, snow-blowing and salting fall "under the umbrella of snow removal activities." Lathers v. Twp. of W. Windsor, 308 N.J. Super. 301, 304-05 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 154 N.J. 609 (1998). Despite similar challenges, this legal precept has not been altered. See e.g., Luchejko v. City of Hoboken, 414 N.J. Super. 302, 317-18 (App. Div. 2010) (concluding city was 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 (holding a township was immune where snow pile left next to sidewalk melted and then refroze, causing conditions which caused plaintiff's fall); Davenport v. Borough of Closter, 294 N.J. Super. 635, 641-42 (App. Div. 1996) (Borough immune where inadequate snow removal on a sidewalk and street forced plaintiff to walk through a vacant lot, where she fell).
Next, we consider whether the exception set forth in Bligen applies here, and modifies a public entity's well-established common-law immunity for snow removal activities. In Bligen, the plaintiff slipped and fell on ice located on the driveway outside her apartment building. Bligen, supra, 131 N.J. at 127. The Court recognized "municipalities cannot be insurers of the public safety and that the determination of priorities for snow removal 'is a matter of judgment committed under our system of government to the local authority and it should not be interfered with by the courts in a tort damage suit.'" Id. at 133 (quoting Amelchenko v. Freehold Borough, 42 N.J. 541, 549 (1964)). Nevertheless, the Court noted the law "did not immunize public entities for all weather-related injuries." Ibid. In fact, the Court reversed the grant of summary judgment for the defendant and concluded the "policy reasons behind the common-law immunity for public entities for snow-removal activities do not apply to a public housing authority, which has a finite area from which to remove the snow." Id. at 131.
The Court's rationale noted the common-law immunity for snow removal activities specifically did not apply to public housing authorities. Id. at 134, 136. See also Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 263 (App. Div. 2011) (extending Bligen to non-tenants of a building owned and maintained by the public housing authority), certif. denied, 209 N.J. 208 (2012). Moreover, common law established a municipal landlord's liability to safeguard premises and maintain responsibility for foreseeable consequences caused by the negligent removal of snow and ice was well established. Id. at 134 (citing Doud v. Housing Auth. of Newark, 75 N.J. Super. 340 (App. Div. 1962). See also Lathers, supra, 308 N.J. Super. at 306 ("'The common-law immunity for snow removal activity . . . did not apply to public housing authorities because under the common-law, public housing authorities were deemed to owe the same standard of care to their tenants as did other commercial landlords.'") (quoting Bligen, supra, 131 N.J. at 134)).
Plaintiff urges us to impose upon defendant the same responsibility to those using schools that of the liability of a defendant housing authority, suggesting each school was "a smaller self-contained area" exclusively controlled by South's custodial staff, which was capable of maintaining the premises free of snow and ice. See Bligen, supra, 131 N.J. at 131. ("The policy reasons behind the common-law immunity for public entities for snow-removal activities do not apply to a public housing authority, which has a finite area from which to remove snow."). This emphasis on Bligen's "finite, bounded area" characterization ignores the common-law foundation underpinning the Court's holding, that is, the municipal landlord's common-law tort liability. "In the absence of a clearly established landlord-tenant relationship, our courts have previously rejected attempts by slip and fall plaintiffs to classify a particular public entity as akin to a commercial landlord in order to squeeze within the Bligen rationale." Sykes, supra, 308 N.J. Super. at 269 (citing Rossi v. Borough of Haddonfield, 297 N.J. Super. 494, (App. Div.), aff'd 152 N.J. 43 (1997)).
We are not free to disregard the nature of the common-law immunity applicable here, which is quite distinguishable from the common-law liability referenced in Bligen. See O'Connell, supra, 337 N.J. Super. at 133 ("We cannot accept plaintiff's contention that Bligen should be extended beyond its unique facts."). Rather, extension of the TCA's provision to abrogate municipal immunity for alleged negligent snow and ice removal on school properties is a subject to be addressed and determined by the Legislature.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION