FRANK DAVID SIEGEL et al. v. COUNTY OF MONMOUTH et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6435-05T56435-05T5

FRANK DAVID SIEGEL and

BARBARA A. SIEGEL,

Plaintiffs-Appellants,

v.

COUNTY OF MONMOUTH and PORT

IMPERIAL FERRY CORP.,

Defendants-Respondents.

________________________________________________________________

 

Argued May 15, 2007 - Decided June 7, 2007

Before Judges Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-57-04.

Jeffrey Resnikoff argued the cause for appellants (Resnikoff, Resnikoff & Witek, attorneys; Robert L. Witek, II, on the brief).

David A. Laughlin argued the cause for respondent County of Monmouth (Stout & O'Hagan, attorneys; Mr. Laughlin, of counsel and on the brief).

Joseph A. Reardon, III argued the cause for respondent Port Imperial Ferry Corp. (Weston, Stierli, McFadden & Capotorto, attorneys; Mr. Reardon, on the brief).

PER CURIAM

Plaintiff, Frank David Siegel, appeals from a summary judgment dismissing his complaint against defendants, County of Monmouth (County) and Port Imperial Ferry Corp. (Port Imperial) for injuries he sustained when he slipped and fell on ice in a parking lot owned by the County. Plaintiff was a daily commuter to New York City on a ferry operated by Port Imperial, which embarked from a terminal next to the parking lot. The terminal was owned by the County and subject to a licensing agreement with Port Imperial by which Port Imperial was authorized to conduct its ferry operations.

Plaintiff argues on appeal:

I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF PORT IMPERIAL FERRY COMPANY AS THAT ENTITY, AS A COMMON CARRIER, AND A COMMERCIAL TENANT, HAS A NON-DELEGABLE DUTY TO PROVIDE A SAFE MEANS OF INGRESS AND EGRESS FOR ITS PATRONS.

II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE COUNTY OF MONMOUTH.

We reject these arguments and affirm.

Applying the Brill standard, these are the facts. The County owns a tract of waterfront property on which it determined that an appropriate and beneficial public use of the land would include the operation of a ferry service for commuters to New York City. The County issued a request for proposals and selected Port Imperial for the award of a contract to conduct a "Primary Ferry Service." The County and Port Imperial entered into a "FERRY SERVICE AND LANDING AGREEMENT" for this purpose. The agreement authorizes Port Imperial to conduct a passenger ferry service from the ferry terminal owned by the County to certain designated sites in Manhattan. As consideration, Port Imperial was required to remit to the County a certain payment for each passenger and also a certain sum for each pound of cargo transported.

The County reserved the right to allow use by others of the ferry landing site for other purposes. Included was authorization to allow secondary operators to transport passengers to landing sites in New York other than those specified for Port Imperial. The County also reserved the right to authorize special operators to use the landing site to provide charter, weekend, sightseeing or banquet-type ferry service.

The agreement acknowledges the County's undertaking to construct a parking facility adjacent to the ferry terminal. Ferry passengers would be permitted to park in the parking lot free of charge. However, ferry passengers did not have exclusive rights to park in the lot, and Port Imperial was prohibited (without prior agreement of the County) from placing any signs in the parking lot. The parking lot was opened to members of the general public. Beachgoers, fishermen, sightseers, and any other member of the public wishing to use the lot were given unrestricted access.

The agreement provided that Port Imperial would provide ground transportation. Port Imperial operated shuttle buses to carry prospective passengers from remote areas of the parking lot to the ferry terminal building. The shuttle buses ran on public streets adjacent to the parking lot.

Relevant provisions of the agreement pertaining to responsibilities of the parties for the parking lot are contained in portions of paragraph eleven and in paragraph fifty of the agreement:

11. Fit-up of Ferry Terminal; Maintenance.

. . . .

[Port Imperial] will not be responsible for major maintenance, security or snow removal relating to the Parking Facility, but will be responsible for routine maintenance and daily cleaning of the Parking Facility. . . .

(d) It is agreed and acknowledged that the Ferry Property provides for public access to the beach and surrounding areas and activities, and that, therefore, parking at the Parking Facility will be on a "first-come, first-accommodated" basis.

. . . .

(f) The County will be responsible for maintenance of, and snow removal at, the Parking Facility, except for daily trash removal and cleaning. The County may provide such security for the Parking Facility, if any, as the County, in its sole discretion, deems appropriate. The County's responsibilities shall include maintenance of the pavement, striping, lighting systems (including relamping)[,] landscaping, and storm drainage system, as well as maintenance of the access roadway and bridge leading to the Parking Facility.

. . . .

50. Regulation of Parking Facility. The County will be responsible for regulation of parking at the Parking Facility. It is the County's initial intention to allow free public parking, without restrictions. (Indeed, pursuant to permits governing the project, there must always be some reasonable "public access" to the property.) Nevertheless, the County recognizes that the viability of the ferry service depends on the existence of adequate parking for the ferry passengers. The County therefore agrees to take such reasonable steps from time to time as may be necessary to regulate the use of the Parking Facility in such a way that spaces are available for passenger parking in accordance with the RFP and [Port Imperial]'s response thereto. Such steps, for example, may include prohibiting or regulating overnight parking, hourly parking restrictions, the reservation of spaces for ferry parking only, and so on. In addition, the County contemplates the construction of additional parking spaces as part of the Phase 2 and Phase 3 Improvements described in paragraph 47 hereof.

As provided in the agreement, the County at all times provided snow removal service in the parking lot.

On the morning of February 24, 2003, plaintiff drove his car to the parking lot and parked in a remote area. It had snowed in the preceding days, and the County had plowed the parking lot. Indeed, on the day of the accident the County had plowed, sanded and salted the lot before plaintiff's fall. Because of melting and refreezing of some of the piled-up snow, black ice formed in portions of the parking lot. Plaintiff got out of his car and began to walk toward an area where a shuttle bus was being driven for picking up passengers. While still in the parking lot, plaintiff slipped on the ice and fell, causing him injuries.

Plaintiff sued the County and Port Imperial. After discovery was conducted, both defendants moved for summary judgment. The judge granted both defendants' motions. Plaintiff's reconsideration motion was denied.

On appeal, we apply the same standard that governs trial courts in deciding summary judgment motions, and our determination therefore is de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Plaintiff argues that Port Imperial owed him a duty on two bases. First, plaintiff argues that as a common carrier, Port Imperial had a duty to use a high degree of care to protect a passenger from harm, and this duty extends to furnishing a safe means of ingress and egress to its passengers. Second, plaintiff contends that Port Imperial owed him a duty as a commercial tenant to have its premises in a reasonably safe condition for invited third parties. Regardless of the terminology of the agreement, which sets forth a licensing arrangement, plaintiff argues that in reality the agreement is nothing more than a commercial lease because Port Imperial occupies the premises for the purpose of operating its business and in return compensates the County for the right to occupy and utilize the premises. Plaintiff further argues that no provision of a lease of this nature can absolve a tenant of its duty to maintain the premises in a reasonably safe condition and that to hold otherwise would be contrary to public policy.

We evaluate these arguments in light of the contractual agreement and status with respect to both parties and the public of the County-owned property where plaintiff fell. Although it is clear that the agreement required the County to provide adequate free parking for ferry users, it is equally clear that the parking lot was open to the public. It is also clear that the landing site itself was not subject to Port Imperial's exclusive use. The method of payment by Port Imperial to the County, although called "rent" in the agreement, is a per passenger stipend (and per pound stipend for cargo). The agreement gives Port Imperial no possessory right to the parking lot. Indeed, Port Imperial is precluded from placing signs in the parking lot without County authorization, use of the lot by the public is on a first-come, first-served basis, and the County retains the right and responsibility to perform improvements, provide security, and conduct snow removal operations in the parking lot. We therefore conclude that this parking facility is a multipurpose public facility. Ferry passengers are not required to use it. All members of the public are permitted to use it. The agreement is a licensing agreement for the operation of a ferry service from the landing site and terminal. The agreement does not constitute a lease of the parking facility.

Plaintiff is correct in stating the general principle that a common carrier has a high duty of care for the safety of its passengers, and that duty extends beyond the actual property of the common carrier and includes the means of access to and from the common carrier's station or terminal. Del., Lackawanna & W. R.R. Co. v. Trautwein, 52 N.J.L. 169, 175 (E. & A. 1889). Thus, for example, an unsafe condition adjacent to a common carrier's property and directly in the route normally pursued and used by passengers, with the knowledge of the common carrier, falls within the scope of the duty. Buchner v. Erie R.R. Co., 17 N.J. 283, 288-89 (1955). See also Fortein v. Del., Lackawanna & W. R.R. Co., 90 N.J.L. 137, 138-40 (E. & A. 1917) (disembarking ferry passenger walking along passageway extending from ferry-house which was necessary for passengers to cross to leave ferry-house was within the scope of the common carrier's duty of care to its passenger); Exton v. Cent. R.R. Co., 62 N.J.L. 7, 12 (Sup. Ct. 1898), aff'd, 63 N.J.L. 356 (E. & A. 1899) (prospective passenger in passageway to baggage room which passengers had to traverse to enter the ferry-house or check their baggage constituted part of the journey of the passenger with the common carrier); Yetter v. Gloucester Ferry Co., 76 N.J.L. 249, 249-50 (Sup. Ct. 1908) (disembarking ferry passenger who fell over a loose plank at the shoreward end of the pier was still a passenger, and the safety of landing applies not only to the immediate means of getting on and off the boat, but requires the furnishing of safe passageways between the ferry-house and street).

The common thread running through these cases is that a person's status as a passenger with a common carrier does not necessarily begin or end with the person's actual presence on the ferry boat, train, bus, or other mode of transportation. While entering upon and alighting from the means of transportation, the person has the status as a passenger. This concept is extended to areas immediately adjacent to the loading platform, dock or area, if it is a passageway which passengers are required to traverse or which they routinely traverse with the knowledge and acquiescence of the common carrier.

Status as a passenger does not extend to common areas that are remote from the common carrier's location. Applying New Jersey law, the federal court addressed this situation with an airline passenger moving between gates in a common area of the airport to change planes, who was injured on a moving walkway about 250 to 500 feet away from the gate of her common carrier, KLM Royal Dutch Airlines (KLM). Kantonides v. KLM Royal Dutch Airlines, 802 F. Supp. 1203, 1204-05 (D.N.J. 1992). While on the airplane from which she was transferring, KLM announced that passengers would be required to walk to a specified different gate to change planes, and to move between gates it was necessary to walk through the corridors of the terminal building. Ibid. Passengers were free to walk throughout the area of the terminal building with unrestricted movement. Id. at 1205. The court found no common carrier duty on KLM's part, reasoning as follows:

Under New Jersey law a common carrier, such as KLM, owes its passengers a duty to provide a reasonably safe means of ingress and egress. Buchner, [supra,] 17 N.J. at 286; Horelick [v. Pa. R.R. Co.], 24 N.J. Super. [413, 419 (App. Div.), aff'd, 13 N.J. 349 (1953)]. This duty extends to areas not owned or controlled by the carrier, Buchner, [supra,] 17 N.J. at 285, and continues while the relationship of carrier and passenger exists. Horelick, [supra,] 24 N.J. Super. at 419. The duty cannot be avoided through a lease arrangement with the terminal. Id.

In this case, KLM owed the Kantonides a duty to provide a reasonably safe means of ingress or egress. However, that duty did not and does not encompass the common areas of the airport terminal. The present case involves a moving walkway a couple hundred feet from either of the KLM gates at issue. The proximity of the walkway is not comparable to a curb less than two feet from the defendant's property as in Buchner or to a platform adjacent to a train as in Horelick. It is impracticable to extend KLM's duty to provide safe ingress and egress to include the moving walkway. If KLM were found to owe passengers a duty of care with regard to distant premises that it does not own, lease, control or maintain, there would be no logical end to that duty.

[Id. at 1215.]

Applying these principles to the facts in this case, we find no common carrier duty in the remote area of the parking lot where plaintiff fell. This was not a defined passageway that he was required to traverse. Nor was it a designated walkway that was commonly traversed by passengers with the knowledge and acquiescence of Port Imperial. Upon parking his car, plaintiff could have walked in any area of the parking lot to safely make his way to the terminal building or to a location where he could board a shuttle bus. Further, plaintiff was in a public parking lot, akin to the common areas in the airport in Kantonides. This was a multi-acre parking lot, which had members of the public and ferry passengers walking unrestricted in all directions, up and down all of the aisles between the rows of the parked cars, and in between the spaces separating the parked cars. When he fell, plaintiff was not yet a passenger with the common carrier. There is no justification to extend the duty of the common carrier to this vast unrestricted area remote from the terminal building.

We also find unpersuasive plaintiff's contention that he was a business invitee of a commercial tenant, Port Imperial, when he fell. In our view, Port Imperial lacked the necessary control over the parking lot to give rise to a duty of care to plaintiff. The parking lot was used by the public, traversed by patrons of the ferry service, but also by beachgoers, fishermen, sightseers, and anyone who wished to park there free of charge on a first-come, first-served basis. Port Imperial was not contractually required nor authorized to remove snow and ice from the parking lot. The County was responsible contractually and, in actuality, performed that service on a regular basis, including the day of plaintiff's fall.

We have held that the Port Authority Transit Corporation (PATCO) owed no duty of care to a plaintiff who was assaulted in an area not leased from the City of Philadelphia, noting that the concourse where the assault occurred was a public way, traversed by patrons of PATCO as well as others, PATCO depends upon the existence and maintenance of the concourse for use by its patrons, and PATCO was not authorized by its lease to police the concourse area (which was policed by City police officers), whereas PATCO patrolled the station area leased to it. Schwarz v. Port Auth. Transit Corp. (PATCO), 305 N.J. Super. 581, 590 (App. Div. 1997), certif. denied, 153 N.J. 214 (1998). We concluded that under the totality of the circumstances "[w]e may not impose upon PATCO a duty of care for patrons while traversing property not leased by it, under circumstances where controlling lease documents do not authorize PATCO to undertake such duty." Ibid.

Similarly, in O'Connell v. New Jersey Sports and Exposition Authority & New York Giants, 337 N.J. Super. 122, 125 (App. Div.), certif. denied, 168 N.J. 293 (2001), we considered whether the Giants' lease assigned responsibility for snow and ice removal of the stadium seats and interior steps to the New Jersey Sports and Exposition Authority (NJSEA). In finding that the Giants owed the plaintiff a duty of care, we noted that nowhere in the lease was NJSEA granted exclusive control over the stadium seats and steps. Id. at 126. Indeed, we noted that the stadium seats and steps were part of the premises subject to the Giants' control during the football season. Id. at 126-27.

We find unpersuasive plaintiff's reliance on Jackson v. K-Mart Corp., 182 N.J. Super. 645 (Law Div. 1981). There, the plaintiff slipped and fell upon the sidewalk in front of the Kmart store. Id. at 647. The court determined that Kmart owed the plaintiff a duty to provide a safe path to and from the store and the sidewalk provided a direct route between the store and the parking lot used by Kmart's business invitees. Id. at 650-51. The facts in the case before us are materially distinguishable. First, as we have previously explained, there was not a landlord-tenant relationship between the County and Port Imperial. Second, plaintiff's fall in this case occurred in a remote parking lot and was not part of a "defined route" that Port Imperial was sure its patrons would traverse. Plaintiff, as well as the many other people using the parking lot that morning, were free to follow different routes in making their way about the vast parking lot area.

We next address plaintiff's claim against the County. Plaintiff contends that the snow and ice immunity provided in the Tort Claims Act (TCA), see N.J.S.A. 59:4-7, applies only to a slip and fall on "streets" or "highways" and does not apply to an "interior parking lot." Plaintiff claims the immunity does not apply to parking lots because it involves a "finite" or limited area. Citing Bligen v. Jersey City Housing Authority, 131 N.J. 124 (1993), plaintiff claims that the site where he fell was limited in size and sufficiently "finite" to preclude application of the snow and ice immunity.

Plaintiff also argues that the County should not be permitted to avail itself of the snow and ice immunities because it was acting as a commercial landlord. Plaintiff argues that the County owns the parking lot and receives consideration from Port Imperial for the right to use the facilities, including the parking lot, and to allow the cloak of immunity to prevail would deprive plaintiff of any cognizable remedy and would render the ferry service agreement contrary to public policy.

The County concedes, and we agree, that the immunity provided under N.J.S.A. 59:4-7 is not applicable in this case. It is the common law snow and ice immunity as articulated in Miehl v. Darpino, 53 N.J. 49 (1968), that provides immunity in this case.

As to defendant's remaining arguments, we reiterate that this was not a commercial lease but a licensing agreement. Although not necessarily controlling, the agreement contains a provision that the County and Port Imperial are not engaged in a joint venture. And, even if a "commercial component" was present, the common law snow and ice immunity would nevertheless apply. See Rossi v. Borough of Haddonfield, 297 N.J. Super. 494 (App. Div.), aff'd, 152 N.J. 43 (1997).

We find unpersuasive plaintiff's reliance on Bligen, for the proposition that because the parking lot is a confined and finite area, the common law snow and ice immunity does not apply. In 1968, our Supreme Court determined that public entities were immune from liability for negligent snow removal. Miehl, supra, 53 N.J. at 53-54. In Miehl, the Court found that to hold otherwise would "require a municipality to completely remove all snow and ice -- to in effect 'broom sweep' all the traveled portion of the streets, driveways and sidewalks where natural snowfall has been disturbed by any removal of street snow." Id. at 53. The Court explained that "[s]uch a requirement would impose upon the municipalities of this state a duty not only impractical but also well-nigh impossible of fulfillment." Id. at 54.

Twenty years later, the Court in Rochinsky v. New Jersey, Department of Transportation, 110 N.J. 399, 402 (1988), decided that the absolute immunity conferred on public entities for snow-removal activities was preserved following the enactment of the TCA. The immunity was also extended beyond streets and highways to parking lots owned and maintained by public entities. Sykes v. Rutgers, 308 N.J. Super. 265, 268-69 (App. Div. 1998). In Sykes, we upheld Rutgers' entitlement to the common law snow-removal immunity against a student who slipped and fell on ice in the parking lot at Busch Campus in New Brunswick. Id. at 266.

We also rejected the student's argument that the "internal parking lot" where she fell was a "finite, bounded area" similar to the area controlled by the housing authority in Bligen, supra, where the Court rejected the application of the common law snow-removal immunity. Sykes, supra, 308 N.J. Super. at 268-69. In Bligen, supra, 131 N.J. at 137-38, the Court held that the public housing authority was not entitled to immunity under the TCA or common law because the area was not a street or highway and the authority's snow-removal responsibilities were limited to a "finite area." The Court also held in Bligen, that no immunity applied in favor of the Housing Authority "because under common-law, public housing authorities were deemed to have the same obligation to their tenants as commercial landlords." Ibid.

In Sykes, supra, 308 N.J. Super. at 269, we distinguished the holding in Bligen, finding that "by focusing only on the part of the campus 'dedicated to student housing' would enable 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." We explained that "[t]his would, in effect, destroy the common law immunity which has protected public entities against liability for their snow-removal activities for over a quarter of a century." Ibid.

We also rejected the plaintiff's argument that Rutgers had a legal responsibility to her as a municipal landlord similar to that imposed on the housing authority in Bligen. Ibid. We concluded that "[i]n 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." Ibid.

Again, in Rossi, supra, 297 N.J. Super. at 501, we rejected the plaintiff's attempt to classify the public entity as a "landlord" by virtue of the sale of parking permits in order to come within the Bligen rationale. We concluded that no landlord-tenant relationship was created by the Borough regulating parking through meters and permits. Ibid. "Plaintiff gained no property right as a consequence of the purchase of a parking permit. Plaintiff was not promised and need not receive any greater protection against weather and its consequences simply because she procured the right to park in a designated area." Ibid.

The County, unlike the housing authority in Bligen, does not maintain a single facility which, at common law, was equated with a commercial landlord. On the contrary, the County is responsible for snow removal obligations on an extensive network of public streets and roads, as well as parking lots it maintains throughout its jurisdiction. This includes the parking facility involved in this case. This parking facility cannot be isolated and separated out from the overall responsibility of the County to avoid the absolute snow-removal immunity the County enjoys. Further, the Court in Bligen, supra, 131 N.J. at 138, carefully referred to "the narrow scope of this holding" in limiting it to public housing authorities.

Plaintiff's arguments here are similar to those raised and rejected in Sykes. Any commercial component to the agreement between the County and Port Imperial does not serve to eliminate the County's common law immunity against negligent snow and ice removal as established in Sykes and Rossi. We do not find any provisions of this agreement contrary to public policy. The scope of the agreement between the County and Port Imperial contemplates the provision and maintenance of a public parking lot near the ferry terminal which ferry customers are permitted to use if they choose to do so, along with the public at large. A court's power to declare a contract provision void as against public policy "must be exercised with caution and only in cases that are free from doubt." Briarglen II Condo. Ass'n, Inc. v. Freehold, 330 N.J. Super. 345, 356 (App. Div.), certif. denied, 165 N.J. 489 (2000). We have no occasion to exercise that power here.

 
Affirmed.

Barbara A. Siegel, the wife of Frank David Siegel, was also a plaintiff, asserting a per quod claim.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Based upon the record on appeal and comments by counsel at oral argument, it does not appear that the County has authorized other entities to use the landing site, although the agreement reserves that right to the County.

(continued)

(continued)

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June 7, 2007