Conford, Freund and Sullivan. The opinion of the court was delivered by Freund, J.A.D.
Plaintiff sued the Borough of Freehold for damages resulting from injuries he sustained when he fell in an unmetered parking lot operated by the borough. The accident occurred on January 21, 1961 at about 10:30 P.M. The parking lot was blanketed with six to eight inches of snow from a storm which began on the 19th and ended on the morning of the 20th. Deep ruts in the snow had been made by cars which had been driven through the parking lot; portions of the snow were frozen over.
Plaintiff testified that he had parked his car in the lot earlier that evening, and was returning to his car when the accident occurred. In describing the occurrence he stated, "I stepped on one of these uneven pieces of ice or snow and my foot went out from under me and when I came down I landed on my ankle and fell on my left side." Two witnesses testified to having found plaintiff lying in the snow. Both supported his testimony as to the ice and deep ruts in the snow and that the light in the area provided less than good visibility. Plaintiff also called as an expert witness an "architectural supervisor," whose work involved designing parking lots and directing their construction. He testified that from his
experience in supervising the clearing of snow from parking lots, it was his opinion that the lot in question could have been cleared in from three to five hours.
The borough's defense consisted of the testimony of two witnesses. The foreman of the street department testified that at the time of the snow storm the borough had the following snow equipment in use: three trucks with snow plows on them, one grader with a snow plow on it, and one front-end loader. The work record indicated that there were 14 men assigned to the job of clearing approximately 30 miles of streets. These men worked in shifts of seven almost continually from 7:30 A.M. on the 19th through midnight of the 21st. During this period each man averaged between 10 and 12 hours of work. On the 22nd, 11 men worked for 10 hours.
Lawrence F. Adams, borough engineer and superintendent of public works, testified to the normal procedures of snow removal followed in Freehold. This involved clearing the main streets first, then the arterial streets, then the balance of the streets, and finally the parking lots. This was the procedure in effect during the January 19-20 snow storm. It is clear from all the testimony that the borough's snow removal crews had not yet begun to clear the parking lot in question at the time the accident occurred.
At the close of all the evidence defendant moved for involuntary dismissal of plaintiff's case, with prejudice, on the ground that plaintiff had not offered proof of the borough's negligence. The motion was granted, judgment for defendant was entered accordingly, and plaintiff now appeals. In its answer defendant had raised the defense of "the doctrine of governmental immunity"; later defendant added, by motion, a defense based upon the statutory grant of governmental immunity, R.S. 40:9-2. Before trial commenced the court granted plaintiff's motion to strike both of these defenses, and defendant now cross-appeals from the granting of that motion. Since application of R.S. 40:9-2, if proper, would dispose of this case in defendant's favor irrespective of whether the trial judge was correct in entering judgment for defendant without
submitting the case to the jury, we will examine that issue first.
Defendant's cross-appeal is based upon the contention that the parking lot in question should be considered as having been operated in a governmental, rather than proprietary, capacity and that therefore the borough is shielded from liability by R.S. 40:9-2, which reads as follows:
"No municipality or county shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding."
We are urged to apply this statute in light of Art. IV, § 7, par. 11, of our 1947 Constitution , which ...