EDWARD TALIAFERRO v. WEST SIDE HIGH SCHOOL, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3048-04T23048-04T2

EDWARD TALIAFERRO,

Plaintiff-Appellant,

v.

WEST SIDE HIGH SCHOOL, and

THE NEWARK PUBLIC SCHOOLS,

Defendants-Respondents.

_______________________________________________________________

 

Submitted October 26, 2005 - Decided January 17, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, L-8796-03.

Kendal Coleman, attorney for appellant.

McCarter & English, attorneys for respondents

(Matthew J. Tharney, on the brief).

PER CURIAM

Plaintiff Edward Taliaferro went to West Side High School (West Side) during the evening hours of January 2, 2003, to help his friend, the head basketball coach of West Side, conduct a basketball practice session with the basketball team. After he had exited the building and was walking on a paved surface toward his car, sometime between 7:30 p.m. and 8:00 p.m., he slipped and fell on icy pavement. The ground had been dry when plaintiff arrived at West Side between 6:30 p.m. and 6:45 p.m., but a major snowstorm had been forecast for that day, and the weather worsened while plaintiff was inside the gym assisting with basketball practice. As a result of his fall, plaintiff fractured his right ankle and he underwent surgery, which included insertion of a plate and screws.

In his complaint, plaintiff alleges that West Side and the Newark Public Schools are responsible for his injuries because they failed to either salt or sand the icy area where he slipped and fell. Defendant, on the other hand, claims that it is entitled to common-law snow-removal immunity. After discovery was complete, defendant filed a motion for summary judgment, and, on January 7, 2005, Judge Santiago granted summary judgment in favor of defendant and dismissed plaintiff's complaint with prejudice. The trial court concluded that "this case falls right within all the cases that fall within the common law immunity . . . . [And] there is no material issue of fact under the common law immunity." We agree and affirm.

"[S]alting and sanding fall under the umbrella of snow removal activities." Lathers v. Twp. of W. Windsor, 308 N.J. Super. 301, 305 (App. Div.) (quoting Farias v. Twp. of Westfield, 297 N.J. Super. 395, 402 (App. Div. 1997)), certif. denied, 154 N.J. 609 (1998). In our view, plaintiff's claims of negligence fall squarely within those activities immunized by Miehl v. Darpino, 53 N.J. 49 (1968), an immunity that was unaffected by passage of the Tort Claims Act. Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 414 (1988).

As the Court noted in Rochinsky:

To allege a triable cause of action, a plaintiff must show that as a result of a public entity's palpably unreasonable conduct, the entity's property was in a dangerous condition at the time of the accident, that the condition proximately caused the injury, that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred, and that the public entity had notice in sufficient time to protect against the condition or that an act or omission of a public employee acting within the scope of his employment created the condition. 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.

[Rochinsky, supra, 110 N.J. at 413 (citation omitted).]

Plaintiff contends that the Supreme Court's holding in Bligen v. Jersey City Housing Authority, 131 N.J. 124 (1993), provides a basis for his recovery. In Bligen, the Court recognized a narrow exception to the common-law immunity for snow removal activities by public entities. Plaintiff Bligen, a tenant of the defendant Housing Authority, fell on ice in the driveway outside of her apartment building on a Sunday evening in January. Id. at 127. Although there had been a snowstorm the previous Friday, plaintiff claimed no snow had been cleared during the weekend even though her housing complex had a maintenance staff of seventeen. Ibid. The trial court granted summary judgment to the Housing Authority, finding that it was entitled to the common-law immunity for snow-removal activities. Id. at 126. We reversed, holding that the Authority was not entitled to the common-law immunity. Ibid. The Supreme Court granted the Housing Authority's petition for certification and affirmed, concluding that the Housing Authority had failed to meet its burden to establish either the weather immunity or the common-law immunity.

Two factors were critical to the Court's analysis: (1) the existence of a landlord-tenant relationship between the parties. ("The common-law immunity for snow-removal activities . . . 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"), id. at 134; and (2) unlike a municipality, the housing-complex manager had a much smaller and self-contained area under his control--"a finite, bounded area." Ibid. Neither of these factors are present in this case. Therefore, in our view, defendant does not fall within the narrow exception to the common-law immunity for the snow removal activities of public entities created by Bligen for public housing authorities. See, e.g., O'Connell v. N.J. Sports & Exposition Auth., 337 N.J. Super. 122, 133 (App. Div.) ("We cannot accept plaintiff's contention that Bligen should be extended beyond its unique facts."), certif. denied, 168 N.J. 293 (2001); Sykes v. Rutgers, The State Univ. of N.J., 308 N.J. Super. 265 (App. Div. 1998) (Bligen exception to public entity immunity does not apply to a fall on university campus).

 
Affirmed.

In its answer to plaintiff's complaint, defendant Newark Public School District admits that it owned and operated West Side High School. We therefore refer to the Newark Public School District as "defendant."

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A-3048-04T2

January 17, 2006