GABRIELLE SHALLBERG v. TOWNSHIP OF WEST ORANGE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1116-08T31116-08T3

GABRIELLE SHALLBERG,

Plaintiff-Appellant,

v.

TOWNSHIP OF WEST ORANGE,

Defendant-Respondent.

____________________________

 

Argued May 13, 2009 - Decided

Before Judges Rodr guez and Newman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No.

L-1347-06.

John B. Collins argued the cause for the appellant (Bongiovanni, Collins & Warden, attorneys; Mr. Collins, on the brief).

Arthur G. Lash argued the cause for the respondent (O'Toole Fernandez Weiner Van Lieu, LLC, attorneys; John B. Monahan, on the brief).

PER CURIAM

Plaintiff Gabrielle Shallberg appeals from an order dismissing her complaint on summary judgment. We affirm.

Viewing the facts in a light most favorable to plaintiff in a summary judgment context, they may be summarized as follows. On February 13, 2004, at approximately 9:00 p.m., plaintiff parked her car in the George Quigley Municipal Parking Lot in West Orange. She intended to go to Gaffer's Tavern on Main Street. When she exited the parking lot through the pedestrian gate, she noticed water on the ground. After eating dinner, she left Gaffer's at approximately 11:30 p.m. On returning to the parking lot, she slipped and fell to the ground as she walked through the pedestrian gate.

Plaintiff landed on a large area of ice that had formed from water running downgrade from snow that had been removed and piled near the fence surrounding the parking lot. As a result of her fall, plaintiff suffered a spiral oblique fracture of the right distal fibula, with disruption of the ankle mortise, and a fracture of the posterior malleolus, requiring an open reduction and fixation with an eight-hole locking plate and screws.

The parking lot had been plowed by the Township with the snow being piled at the perimeters of the lot. No instructions were given to drivers where to plow the snow, nor was there any inspection of the lot following the snow removal to the perimeter areas. The municipal lot slopes down from east to west. If snow accumulated on the west side of the parking lot, when it melted it would cause water to flow to the eastern side of the parking lot. As a result of the temperature dropping below freezing at night, melted snow would freeze and would form a slippery patch of ice across the pedestrian entrance.

According to the public works department diary for West Orange and accuweather summaries of weather, there had not been a significant snowfall for sixteen days prior to plaintiff's accident. Snow fell on January 6, 14, 15, 18, 27 and 28, 2004. Only 0.4 inches of snow fell in the month of February 2004, and there were no natural accumulations of snow on the ground from February 5 through February 13, 2004. There was no reported incident of any accidents in the area where plaintiff fell, nor was the town noticed of any icy condition.

Plaintiff argues that a dangerous condition had formed as a result of where the snow had been plowed by the Township employees which led to eventual melting and freezing which formed a patch of ice upon which plaintiff fell. She relies on the decision in Amelchenko v. Borough of Freehold, 42 N.J. 541, 546 (1964). There, the Court recognized that under N.J.S.A. 40:60-25.5 a municipality could be held liable for negligence of its employees in connection with the operation or maintenance of public parking areas. Id. at 546-47. In Amelchenko, the Court found that when the plaintiff fell and sustained injuries while walking on the uneven ice-crusted snow in the municipal parking lot, the municipality did not have sufficient time or resources to clear the snow following the established snow removal procedures in light of the storm that had preceded the plaintiff's fall. Id. at 555. Plaintiff argues from Amelchenko and N.J.S.A. 40:60-25.5 that the Township may be held liable for the negligence of its agents, servants, or employees in maintaining public parking lots and plaintiff's motion should therefore have been denied because a jury question remained as to a dangerous condition.

We disagree. The Supreme Court has made clear that the common law weather immunity from civil suits applies where snow or ice is an alleged cause of an accident. Miehl v. Darpino, 53 N.J. 49, 54 (1968). The Supreme Court further recognized that the enactment of the Tort Claims Act, including N.J.S.A. 59:4-7, provides governmental immunity for weather related accidents on streets and highways and does not abrogate the common law immunities under Miehl. Rochinsky v. New Jersey Dept. of Transp., 110 N.J. 399, 402 (1988). In Rochinsky, our Court explained the policy behind governmental common law immunity for injuries occurring due to weather related conditions, especially snow and ice, in the following terms:

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.]

The principle to be derived from our Supreme Court decisions is that liability does not attach where the accident is related to snow removal activity. In this respect, the Miehl and Rochinsky decisions are not inconsistent with what the Court said in Amelchenko where no snow removal activity had taken place because the township did not have enough time to plow the municipal parking lot because of the enormity of the snowfall. In Amelchenko, the court basically ruled that it was not palpably unreasonable for the township not to have reached the parking lot for plowing.

Here, the plowing did take place and the resulting fall and injury was related to that snowplowing activity. We see no distinction between what occurred here and the situation in Rossi v. Haddonfield, 297 N.J. Super. 494 (App. Div.), aff'd, 152 N.J. 43 (1997). There, the plaintiff alleged Haddonfield negligently maintained a municipal parking lot in a dangerous condition causing her to fall and sustain serious injury. Id. at 496. In reversing the trial court's denial of Haddonfield's motion for summary judgment, we held that the common law weather immunity applied. Id. at 497. The plaintiff had arrived at her place of employment and parked her car in a municipal parking lot. Ibid. Prior to the accident a co-worker called the Borough a week before to advise of this icy condition. Ibid. The plaintiff left work later in the day on an errand for her employer and fell as she unlocked her car. Ibid. She fractured her ankle and, despite multiple surgeries, was permanently injured. Ibid.

We held in Rossi that Haddonfield was immune from a suit related to the fall in the municipal parking lot pursuant to Miehl and common law weather or snow removal immunity where the sole cause was ice. Id. at 499. The accident had been caused by snow-related activity. This was so even though the Borough had notice of an icy condition a week before the accident.

Here, West Orange did not have notice of the condition, but the remaining facts are almost identical to those in Rossi. We see no reason to reach a different result from the one found by this court in Rossi. See also Sykes v. Rutgers, 308 N.J. Super. 265, 269 (App. Div. 1998) (Rutgers University entitled to common law snow removal immunity and summary judgment should have been granted).

In Lathers v. Township of West Windsor, 308 N.J. Super. 301 (App. Div. 1998), the plaintiff claimed he fell on a patch of ice on the sidewalk leading from the Township's municipal building complex to a parking lot. Id. at 303. Snow had been removed from the sidewalk at an earlier time and piled adjacent to the walk where it melted onto the sidewalk and froze. Ibid. In rejecting the plaintiff's claim, we had this to say:

In this case, the municipal employees shoveled the sidewalk but, under plaintiff's theory, were negligent not preventing melting snow from running onto the adjacent sidewalk and refreezing, or removing it once it accumulated there. In our view, this is the type of activity that the Miehl Court specifically intended to immunize.

[Id. at 304.]

So too here. The snow plowed and piled to the perimeter of the parking lot also melted and froze forming ice upon which plaintiff slipped and fell. We discern no significant distinction between what happened in Lathers and in this case, and the same common law weather immunity is applicable.

 
We are satisfied that the motion judge properly granted defendant's motion for summary judgment dismissing the complaint for the slip and fall accident in the municipal parking lot.

Affirmed.

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A-1116-08T3

June 10, 2009