SANDRA CHAMBERS et al. v. TOWNSHIP OF HOWELL et al.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0081-06T20081-06T2

SANDRA CHAMBERS and

EDWARD CHAMBERS, her husband,

Plaintiffs-Appellants,

v.

TOWNSHIP OF HOWELL and

HOWELL TOWNSHIP BOARD OF EDUCATION,

Defendants-Respondents.

________________________________________________________________

 

Submitted May 22, 2007 - Decided

Before Judges Skillman and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-102-05.

Smith & Shaw, attorneys for appellants (Thomas J. Smith, III, on the brief).

Martin, Kane & Kuper, attorneys for respondent, Township of Howell (John F. Gillick, of counsel and on the brief).

Stephen E. Gertler, attorney for respondent, Howell Township Board of Education.

PER CURIAM

This is a personal injury action arising from plaintiff Sandra Chambers' slip and fall accident on March 7, 2003 at 6:45 a.m. in the Howell Township Board of Education's (Board) transportation parking lot. The parking lot is owned by defendant Township of Howell (Township) and leased to and used by the Board as a school bus lot. Plaintiff appeals the Law Division's July 31, 2006 orders granting summary judgment to both defendants. We affirm.

On the date of the accident, plaintiff was employed as a school bus driver by Laidlaw Transit, a private company under contract with the Board. Plaintiff had parked her car in the transportation parking lot, in order to walk across the lot to approach the school bus she intended to drive that day. Plaintiff asserts that she slipped and fell on ice while walking between two parked vehicles on the lot. On the Thursday night before the Friday morning accident, there had been freezing rain, sleet and snow. As a result of the fall, plaintiff contends she sustained severe back injuries.

Paragraph 2 of the lease of the Township garage, bus building and parking area adjacent to the building between the Township and the Board provides that the leased property will be accepted by the Board in its existing condition. The lease also provides that the Board shall be responsible for "all repairs, structural or otherwise, and upkeep of the facility."

As a result, the Board purchased large quantities of salt and sand. The Board's invoices with Atlantic Salt, Inc., its salt supplier, showed that the Board had purchased 308.57 tons of salt prior to March 7, 2003. When weather conditions produced snow or ice, the Board, using its own employees and equipment, sanded and/or salted the Board's parking lots in accordance with the Board's sanding/salting procedure. Maintenance department employee overtime records indicated that the Board's maintenance employees worked overtime from March 6-8, 2003, salting and sanding the Board's property, which consisted of thirteen schools and an administration building.

According to the certification of Mathew Zdaniecki, an employee of the Board's Buildings and Grounds Department, he sanded the transportation parking lot on March 6, 2003. He returned to salt the parking lot, including the area where plaintiff fell, on March 7, 2003 at approximately 4:30 a.m., because of the low overnight temperatures and the rain, freezing rain and sleet that had fallen the day before. Peter Brown, a maintenance department employee, certified that both he and Zdaniecki spread sand in the transportation parking lot at about 4:30 a.m. on the morning of plaintiff's accident. According to Kenneth Jones, Jr., the Board's Building and Grounds Department foreman, the usual procedure during inclement weather is to attend to the transportation parking lot first, because this is the location where the salt is stored.

Plaintiff sued the Township and the Board alleging negligence in the care, management and supervision of the property by both the Board and the Township. Plaintiff contends defendants failed to cure a dangerous condition, i.e., the patches of ice on the transportation parking lot. Plaintiff claims defendants improperly and negligently cleared the ice from the parking lot prior to plaintiff's arrival, which negligence was the proximate cause of her slip and fall and the injuries she sustained.

Plaintiff's liability expert, engineer Wayne F. Nolte, opined that the parking lot was in a "hazardous and dangerous condition on the morning of March 7, 2003." The condition resulted from inadequate application of sand and salt to the property, which Nolte opined was palpably unreasonable. Nolte also asserted that "[t]he parking lot [did] not contain a drainage facility to assist in the removal of water." Nolte stated that the application of salt to the snow and ice on the lot causes the ice and snow to melt. However, the inadequate drainage facility, combined with low temperatures, causes the water to refreeze causing a more dangerous condition to persons in plaintiff's position. Nolte opined that the untreated ice condition on the parking lot surface caused plaintiff to slip and fall.

Meteorologist, Frank P. Lombardo, testified at a deposition that whatever ice was present in the lot was the direct result of precipitation, which had fallen during the previous day and night, followed by the rapid decline in temperature and deep freeze before daybreak on March 7, 2003.

After the conclusion of discovery, defendants moved for summary judgment. The court granted defendants' motions, determining that both defendants were protected from liability by the common-law immunity for public entities for ice and snow removal activity.

Plaintiff presents the following arguments for our consideration.

POINT I.

COMMON-LAW IMMUNITY FOR SNOW REMOVAL ACTIVITIES DOES NOT APPLY IN THIS CASE FOR TWO REASONS:

A. IMMUNITY DOES NOT APPLY WHERE THERE IS A FINITE AREA TO BE MAINTAINED.

B. THE FALL WAS CAUSED BY ENGINEERING DRAINAGE DEFECTS OUTSIDE THE SCOPE OF IMMUNITY FOR SNOW REMOVAL ACTIVITIES.

I.

Plaintiff contends common-law immunity for snow removal activities does not apply, where, as here, the Board has only a finite area to be maintained. In Miehl v. Darpino, 53 N.J. 49 (1968), the Supreme Court enunciated the basis for the immunity enjoyed by public entities for snow and ice removal activity. The Court concluded that a plaintiff who claimed that his injuries were caused at least partially by the manner in which snow had been piled at the corner of an intersection was not eligible to recover from the City of Hammonton, which had piled the snow. The Court noted that the imposition of liability upon the municipal entity "would impose upon the municipalities of this State a duty not only impractical, but also well-nigh impossible of fulfillment." Id. at 54. The Court stated:

The unusual traveling conditions following a snowfall are obvious to the public. Individuals can and should proceed to ambulate on a restricted basis, and if travel is necessary, accept the risks inherent at such a time. . . . The public benefit arising from snow removal far outweighs any slight, private detriment which could accompany such a municipal act.

[Ibid.]

After enactment of the Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3, the Supreme Court determined that the common-law immunity established in Miehl, survived the passage of the Act. See Rochinsky v. N.J. Dep't of Transp., 110 N.J. 399, 402 (1988). Since Rochinsky, courts have continued to rely upon the common-law immunity to find public entities not liable for conditions of public property caused solely by reasons of ice or snow. See Farias v. Twp. Of Westfield, 297 N.J. Super. 395 (App. Div. 1997); Rossi v. Bor. Of Haddonfield, 297 N.J. Super. 494, aff'd, o.b., 152 N.J. 543 (1997).

In Bligen v. Jersey City Housing Authority, 131 N.J. 124 (1993), the case on which plaintiff relies, the Court carved out an exception to its decisions in Miehl and Rochinsky. The Court held that public housing authorities may be liable for injuries that occur as a result of their negligence in snow removal. The Court concluded that the basis for the policy immunizing public entities from liability does not apply to housing authority parking lots, which consist of finite areas from which to remove snow. Id. at 131. In a series of cases, decided after Bligen, we construed the impact of the Court's decision in Bligen to be limited to the unique facts present there.

In a decision factually similar to here, we determined that Rutgers, the State University, enjoyed common-law immunity for an ice condition in a dormitory parking lot. Sykes v. Rutgers, The State University of New Jersey, 308 N.J. Super. 265 (App. Div. 1998). We concluded "that regardless of Rutgers' entitlement to Tort Claims Act immunity, it is clearly entitled to the common-law immunity established in Miehl, [supra]." Id. at 268. We distinguished Bligen, indicating that the "'finite bounded area'" characterization of a seven-acre housing authority was not intended to be extended to "fractionalize a 1,500 acre college campus." Id. at 268-69. We concluded that Bligen should not be extended to allow "slip and fall plaintiffs to effectively dissect any public entity into its constituent 'finite bounded areas' for purposes of avoiding common law snow-removal immunity." Id. at 269.

In O'Connell v. New Jersey Sports & Exposition Authority, 337 N.J. Super. 122 (App. Div.), certif. denied, 168 N.J. 293 (2001), we again distinguished Bligen. We noted that while the area encompassed by the stadium seats in Giants Stadium may be a finite area, the entire area subject to New Jersey Sports and Exposition Area (NJSEA) control includes the entire Meadowlands Complex. The Meadowlands Complex consists of Giants Stadium, the Meadowlands Racetrack and the Continental Airlines Arena, along with all the surrounding roadway and parking facilities. Id. at 133. We thus concluded that the plaintiff's reliance upon the finite area of the interior of Giants stadium could not support an extension of Bligen to NJSEA's common-law snow-removal immunity.

Thus, in Sykes and O'Connell, this court considered and rejected the applicability of Bligen. We are satisfied that the motion judge correctly determined plaintiff was precluded from maintaining a cause of action against the Township and the Board because the conditions about which plaintiff complains are related solely to the failure to adequately treat by sand and/or salt the icy condition on the parking lot plaintiff was traversing when she slipped and fell. That condition resulted from the precipitation that had fallen during the previous day, followed by the rapid decline in temperature, and deep freeze before daybreak on March 7, 2003. Additionally, the Board's responsibility for snow removal encompasses, not a finite area, but thirteen schools and an administrative building. As in Sykes, we will not "dissect" the Board's parking areas to create a single "finite area."

II.

Plaintiff contends, however, that her fall was additionally caused by engineering drainage defects, which are outside the scope of the common-law immunity for snow-removal activities. Plaintiff argues that her liability expert, Nolte, has provided a sufficient factual issue to defeat summary judgment under the summary judgment standard contained in Brill v. Guardian Life Insurance Company of America, 142 N.J. 520 (1995).

Nolte testified in his deposition that the application of salt to ice caused a heating action, which when combined with the low temperatures and lack of drainage system refroze the melting substance into ice causing a treacherous and unreasonably dangerous condition. However, Nolte admitted he made no studies to evaluate the area of the fall in terms of drainage or water retention. Nolte conceded that the installation of a drainage system "may not be required," but only that it would be helpful because of the irregularity of the surface and its ability to retain water.

Although Nolte testified that there were ruts on the surface of the gravel and sand parking area from traveled vehicles, plaintiff contended that as she proceeded the untreated icy condition caused her to fall, not the existence of ruts or depressions in the roadway. Indeed, Nolte's report identifies the "hazardous and dangerous condition" as "the presence of ice on the surface without adequate treatment of sand and/or salt" and it is this condition that Nolte opined "caused [plaintiff] to slip and fall."

We are convinced that the conditions about which plaintiff complains cannot be separated from the inclement weather and the icy condition that the weather produced on the parking lot. Plaintiff stated that as she drove to the parking lot on the morning of March 7, 2003, the roads were "a mess." There was a lot of ice due to the previous night's freezing precipitation. Plaintiff saw on the ground when she exited her car "opaque marks" or black ice, which Nolte described as a thin layer of ice. Plaintiff claimed she walked 100 to 500 feet on the ice before she fell.

Thus, plaintiffs' argument that Nolte established a causal connection between the parking lot drainage and her fall is not supported by Nolte's report or his deposition testimony. Nolte simply did not know the conditions existing at the time and place of plaintiff's fall and made no attempt to establish drainage parameters.

We are satisfied, therefore, that plaintiff has provided no factual basis to impose liability on either the Township or the Board predicated on the lack of a drainage system in the parking lot. We are equally satisfied that the Board and Township are public entities immune from liability from accidents caused by the treatment of ice and snow under Miehl, and the decisions following Miehl we have recited above. The summary judgments entered in favor of the Board and the Township were amply justified by the evidential materials before the court and were properly granted as there is no genuine issue of material fact.

 
Affirmed.

Plaintiff, Edward Chambers, sued per quod.

(continued)

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A-0081-06T2

July 12, 2007