RAJOHN MANN v. NEW JERSEY TRANSIT CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RAJOHN MANN,

Plaintiff-Appellant,

v.

NEW JERSEY TRANSIT CORPORATION,

Defendant-Respondent.

___________________________________________

December 4, 2015

Argued October 5, 2015 Decided

Before Judges Sabatino, Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0535-12.

Eric G. Kahn argued the cause for appellant (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Mr. Kahn, of counsel and on the brief; Annabelle M. Steinhacker, on the brief).

Cameryn J. Hinton, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Hinton, on the brief).

PER CURIAM

Plaintiff Rajohn Mann appeals from the July 11, 2014 order granting defendant New Jersey Transit Corporation (NJT) summary judgment and dismissing his complaint, in which he sought damages for injuries sustained after he slipped and fell on ice at one of defendant's train stations. Plaintiff argues the trial court erroneously concluded that, as a public entity, defendant was immune from suit under the common law for negligently failing to remove snow and ice. He contends the exception to the immunity provisions set forth by the Supreme Court in Bligen v. Jersey City Housing Authority, 131 N.J. 124, (1993), applied to the facts in this case. We disagree and affirm.

I

The material facts are not disputed. On February 12, 2010, plaintiff disembarked from a train at NJT's Plainfield train station and descended an exterior staircase to a lower platform. After taking two or three steps across the platform, plaintiff slipped on ice, fell backwards, and injured his back.

Following discovery defendant moved for summary judgment, arguing that, as a public entity, it enjoyed immunity under the common law for any damages a party might sustain arising out of its negligent failure to remove snow and ice from its property, an immunity that had not been abrogated by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. The trial court agreed and granted defendant's motion.

On appeal, plaintiff contends the trial court erred by granting the motion, arguing Bligen, supra, 131 N.J. 124, applies, warranting reversal. In Bligen, our Supreme Court held that a public housing authority is not immune from liability for the injuries a party sustains as a result of its negligent failure to remove snow and ice on the premises. Specifically, plaintiff argues there is no material distinction between a public housing authority and a commercial property owner such as defendant; therefore, NJT should not have been found immune from liability for negligently failing to remove the ice from the platform at its Plainfield train station before plaintiff fell.

II

We begin with our standard of review relevant to summary judgment. Rule 4:46-2(c) directs that summary judgment be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Essentially, the court must determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).

We review a trial court's decision on summary judgment "de novo, employing the same standard used by the trial court." Tarabokia v. Structure Tone, 429 N.J. Super. 103, 106 (App. Div. 2012) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)), certif. denied, 213 N.J. 534 (2013). We give "no deference to the trial judge's conclusions on issues of law." Depolink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013). Thus, we must also "view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (citing Brill, supra, 142 N.J. at 523).

In Miehl v. Darpino, 53 N.J. 49 (1968), our Supreme Court held that, under the common law, public entities are immune from liability for negligently removing snow from streets, driveways and sidewalks. Id. at 53-54. Although in 1972 the common law doctrine of sovereign immunity was eroded to some extent by the TCA, common law immunity for snow removal survived the enactment of this legislation. See Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 411-14 (1988). However, in Bligen, the Court carved out an exception to its decisions in Miehl and Rochinsky. In Bligen, the resident of a public housing authority was injured when she slipped on ice and fell as she stepped off the curb into the parking lot of one of the authority's apartment complexes. Id. at 126-27. In a holding it emphasized as "narrow," id. at 139, the Court found that 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. Rather, the imposition of liability upon a housing authority for failing to make its premises safe "follows the long tradition in the common law of holding municipal landlords responsible for the reasonably-foreseeable consequences of their actions." Ibid.

The Bligen Court also noted that the driving force behind bestowing common law immunity upon public entities was "the limitless liability that could be imposed on [a public] entity . . . that had the responsibility to clean up numerous streets and roads." Id. at 131. The Court concluded that, because a public housing authority has a limited, finite area from which to remove snow, the policy reasons behind immunizing public entities from liability were not applicable to public housing authorities. Ibid.

We have construed Bligen to be limited to its unique facts and have applied the common law immunity for snow removal to public entities that, like defendant, were not housing authorities. See, e.g. Davenport v. Borough of Closter, 294 N.J. Super. 635, 637-38 (App. Div. 1996) (holding immunity applies where the plaintiff fell on snow and ice on lot owned by a municipality adjacent to a municipal building); Farias v. Township of Westfield, 297 N.J. Super. 395, 403 (App. Div. 1997) (applying immunity where the plaintiff fell on ice while walking under a train trestle); Rossi v. Borough of Haddonfield, 297 N.J. Super. 494, 499 (App. Div.), aff'd o.b., 152 N.J. 43 (1997) (applying immunity where the plaintiff fell on snow and ice in municipal parking lot); Sykes v. Rutgers, The State University of New Jersey, 308 N.J. Super. 265, 267 (App. Div. 1998) (holding immunity applies where student fell on ice in parking lot adjacent to dormitory); and Lathers v. Township of West Windsor, 308 N.J. Super. 301, 305 (App. Div.) certif. denied, 154 N.J. 609 (1998) (applying immunity where the plaintiff fell on ice on a sidewalk leading to the municipal complex).

Despite the subject immunity with which all public entities, but for housing authorities, are endowed, plaintiff nonetheless relies on Bligen to advance his argument on appeal. In our view, Bligen is inapposite and thus unavailing to plaintiff.

First, plaintiff contends there is no difference between a public housing authority and a commercial property owner. To be sure, there are many similarities between these two kinds of property owners, but plaintiff overlooks the legal principles in issue here. With the specific exception of housing authorities, all public entities including commercial property owners enjoy common law immunity for negligently failing to remove snow and ice. See Miehl, supra, 53 N.J. 49. We are not at liberty to disregard or modify Supreme Court precedent and abrogate the common law immunity afforded to these entities by the Court.

Second, plaintiff argues that the Plainfield train station is a finite, limited area, making the area which defendant needs to keep clear of snow and ice manageable. Putting aside that plaintiff cannot overcome the fact defendant is not a housing authority, NJT owns more than the train station in Plainfield; the official website for NJT indicates it owns 149 transit stations in New Jersey. See System Map, New Jersey Transit, http://www.njtransit.com/pdf/rail/Rail_System_Map.pdf (last visited Nov. 12, 2015).

A similar argument was rejected in Sykes, supra, 308 N.J. Super. at 265, a case in which the plaintiff slipped and fell in a parking lot next to a dormitory. Plaintiff argued that because the parking lot in which she fell was a finite area, Bligen applied to defeat Rutgers' claim it was immune from liability. We disagreed and distinguished Bligen, finding

there is nothing in Bligen to suggest that the Supreme Court intended its "finite, bounded area" characterization of the seven-acre housing authority there to allow a slip and fall plaintiff to fractionalize a 1500 acre college campus. Sykes' argument that the scope and size of Rutgers' Busch Campus can be ignored 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. This 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.

[Id. at 268-69.]

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. In O'Connell, the plaintiff brought suit after he slipped and fell on snow and ice in the stands during a Giants football game. We held that although the stadium where plaintiff fell could be considered a "finite area," the entire area for which defendant was responsible was much larger, including other stadiums and complexes and, thus, Bligen did not apply. Id. at 133.

Here, unlike the housing authority in Bligen, NJT maintains many facilities throughout the State. Its property is neither finite nor limited. There is no basis to conclude that the extent of its property is analogous to that which was owned by the housing authority in Bligen. Therefore, the second factor that induced the Bligen Court to conclude the housing authority was not immune is absent here.

Because the facts here are distinguishable from those in Bligen - defendant is neither a housing authority nor its property finite and limited - we affirm the order granting defendant summary judgment and dismissing plaintiff's complaint.

Affirmed.

____________________________________

SABATINO, P.J.A.D., concurring.

My colleagues' faithful application of existing precedent governing claims against public entities arising out of inadequate snow or ice removal is unassailable. The Supreme Court's opinion in Bligen v. Jersey City Housing Authority, 131 N.J. 124 (1993), and subsequent case law plainly command that public entities such as New Jersey Transit (NJT) enjoy common law immunity for tort claims stemming from an alleged negligent failure to clear ice and snow. The sole recognized exception to that immunity is where, as in Bligen, the defendant is a public housing authority and the injury to a resident was caused by the failure to address a dangerous condition of ice or snow on its property. Id. at 133-38. In Tymczyszyn v. Columbus Gardens, 422 N.J. Super. 253, 263 (App. Div.), certif. denied, 209 N.J. 98 (2011), we took this principle a step further and construed Bligen's exception to permit tort claims against a public housing complex by non-residents who were injured due to negligent snow removal on its abutting sidewalks.

I join in affirming summary judgment here because, as my colleagues have aptly stated, "[w]e are not at liberty to disregard or modify Supreme Court precedent and abrogate the common law [snow and ice removal] immunity afforded to these [public] entities by the Court." Ante at 7. NJT is a public entity and it is not a public housing authority. So, today's outcome is clear as the blue sky on a bright winter's morning.

I write separately to express my hope that this case may provide a useful opportunity for the Court to reconsider the immunity and liability boundaries it established in Bligen. More specifically, I respectfully suggest that it may be a prudent time to reexamine the alternative approach set forth in Judge Dreier's concurring opinion more than fifteen years ago in Lathers v. Township of West Windsor, 308 N.J. Super. 301, 306-08 (App. Div.), certif. denied, 154 N.J. 609 (1998).

In Lathers, the plaintiff was injured when slipping on a patch of ice leading from a municipal building to its parking lot. Id. at 303. The plaintiff claimed that snow which had been removed from the sidewalk and negligently piled adjacent to the walk later melted onto the sidewalk and refroze, creating a hazardous surface. Ibid. We upheld summary judgment in favor of the defendant municipality, applying the common law immunity as mandated by the Court in Bligen. Id. at 306.

Judge Dreier readily agreed with his colleagues in Lathers as I do with mine here that the dismissal of the plaintiff's claims was required by the Supreme Court's precedents relating to snow and ice removal. Id. at 306 (Dreier, J., concurring). Even so, Judge Dreier invited a reexamination of absolute common law immunity for snow-removal activities by public entities that do not operate housing complexes. Id. at 307-08. He observed that such absolute immunity might be "sufficiently anachronistic" in light of the fact that a "plaintiff, akin to an invitee on private property, ha[d] been injured, and the municipality, but for the common law rule [regarding snow-removal immunity] would [have been] held to the standard of any private property owner, with the additional safeguards provided by the Tort Claims Act[.]" Id. at 307.

Judge Dreier recommended that the Supreme Court "review the existing law, perhaps to declare that sidewalk ice or snow hazards be treated as any other dangerous condition under the Tort Claims Act." Id. at 308. The judge was alluding in that regard to N.J.S.A. 59:4-2, which provides a limited basis for tort liability in dangerous condition cases when either (a) "a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition [on the entity's property];" or (b) the public entity "had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." N.J.S.A. 59:4-2. As an important caveat, no liability under Section 4-2 may be imposed "if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable." Ibid. (emphasis added).

Judge Dreier reasoned that it was anomalous to expose a public entity to liability, albeit under the stringent criteria of Section 4-2, for a dangerous condition posed by "a pothole in the sidewalk, but not for an ice patch[.]" Lathers, supra, 308 N.J. Super. at 307. Anticipating concerns about imposing undue burdens on public entities, he noted that the area where the plaintiff fell "was not a public street or parking lot requiring plowing, but [instead] a shovelled walkway that only required the spreading of a few handfuls of sand." Id. at 307. He suggested that the exception carved out by the Supreme Court in Bligen for public housing authorities should be logically and fairly extended to public entities who are not landlords. Id. at 307-08.

That said, I am mindful that Judge Dreier was not joined in his views by the other two members of the Lathers panel. I also recognize that the Court passed on the chance to take up his suggested revision of the common law when it denied certification. But that was 1998, and perhaps the issue is worth reconsidering today in 2015. Indeed, some other states, such as New York, do not confer absolute immunity upon public transportation authorities or other public entities for negligent snow or ice removal. See, e.g., LaGuarina v. Metro. Transp. Auth., 971 N.Y.S.2d 173 (N.Y. App. Div. 2013); Mathey v. Metro. Transp. Auth., 943 N.Y.S.2d 578 (N.Y. App. Div. 2012); see generally G.B. Crook, Annotation, Snow Removal Operations as Within Doctrine of Governmental Immunity from Tort Liability, 92 A.L.R.2d 796 (2015) (surveying the various approaches taken by different states); M.C. Dransfield, Annotation, Municipal Liability for Injuries from Snow and Ice on Sidewalk, 39 A.L.R.2d 782 (2015) (same).

The line between absolute immunity and potential liability drawn by the Court majority in Bligen in snow and ice removal cases derives from the distinct history of the responsibilities of public entities when they act in a capacity as residential landlords. Bligen, supra, 131 N.J. at 134-36. There is surely no need to plow through that history again. Even so, from a non-historical, functional perspective it is not easy to understand why, as plaintiff's counsel has phrased it in this case, a public entity can be liable for negligently creating or allowing a dangerous icy condition so long as persons "lay [their] head[s] [down] on a pillow and sleep" on the premises, but not if they don't.

The distinction we continue to adhere to today under Bligen was supported in part by a perception that the dimensions of the walkways that need to be shovelled within public housing complexes tend to be smaller, and thus more manageable to maintain, than those on the properties of other public entities. Id. at 133-34. My colleagues make a similar point here in noting the dozens of train stations maintained statewide by defendant NJT. Ante at 7-8. Yet, the dimensional comparison may not always be meaningful.

For example, the Jersey City Housing Authority, the defendant in Bligen, now manages over 2,000 units at more than twenty locations.1 The housing complex where the plaintiff fell on ice in Bligen spanned over seven acres. Id. at 133-34. I doubt that the railroad station in Plainfield operated by NJT is that expansive, or much larger. The limited record before us does not conclusively demonstrate that it would impose a severe operational or financial burden on NJT to deploy enough materials and personnel to ensure that steps and platform areas used by its passengers are kept safe after foul weather at least to a minimal degree that is not "palpably unreasonable."

In respectfully suggesting an updated review of Bligen and Judge Dreier's opinion in Lathers, I note that our case law has been quite vigilant in assuring that the stringent "palpably unreasonable" liability standard of Section 4-2 is enforced by the courts, and that weak cases with facts that do not rise to that high degree of culpability are dismissed. See, e.g., Muhammad v. N.J. Transit, 176 N.J. 185, 198-200 (2003) (concluding that NJT's conduct concerning the safety of its premises was not palpably unreasonable); Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-51 (2002) (holding that the plaintiff did not establish a jury question concerning whether the defendant city acted in a palpably unreasonable manner concerning its maintenance of a city sidewalk, underscoring "the vast amount of Jersey City sidewalks which appear to be subject to the rules governing public property").

Even if a Section 4-2 standard were applied to the facts here a question not decided by the trial court or one briefed by the parties I have serious doubts from the photographs and testimony in the record about whether the condition of the platform where plaintiff slipped was the result of any "palpably unreasonable" actions or inactions by NJT. To the contrary, it appears from the photographs that the specific area near the bottom of the steps where he described that he fell was comparatively free of ice and snow.

The Court in recent years has been active in issuing opinions that clarify principles of sidewalk liability. See, e.g., Cuiyun Qian v. Toll Bros, Inc., 223 N.J. 124 (2015); Luchejko v. City of Hoboken, 207 N.J. 191 (2011). The time may be ripe for this issue to come back to the fore. Of course, one of the logical options not suggested by Judge Dreier is to repudiate Bligen and proclaim a new rule of consistent full snow and ice immunity for all public entities. That option also should be up for discussion as well.

As an intermediate possibility, the Court may wish to consider extending the Bligen exception to the premises of public transit agencies operating as common carriers, whose bustling commuters may be prone to skid more on poorly-cleared icy stairs and platforms than persons who walk on other public property. In sorting out these and other options, there may be empirical data that might aid the Court in its task, although it was not supplied by the parties in the present record.

In sum, I join in the result but respectfully urge the Court to reexamine this important subject of common law anew. As the late Justice Clifford2 might have mused, the law sometimes does not advance at a glacial pace.

1 See Real Estate Portfolio, Jersey City Housing Authority, http://jcha-gov.us/Sites/Files/Site%20Summary%20Package.pdf (last visited Nov. 15, 2015). The Newark Housing Authority, which is likewise subject to liability under the Bligen rule, is even bigger, managing about 10,000 units as the eleventh largest public housing authority in the nation. See About the Authority, Newark Housing Authority, http://www.newarkha.org/About_Us.php (last visited Nov. 15, 2015).

2 See Bligen, supra, 131 N.J. at 138-39 (Clifford, J., dissenting, and critiquing the Court majority for "shovelling a new path").