For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J. Haneman, J., concurring in result.
The Borough of Freehold provided a parking lot in the heart of its business section for use of the public. The land used for the purpose, approximately three and one-half acres, had been acquired out of general funds. It had a capacity of about 470 cars. There were no meters and no charge was made for the privilege of parking. On Thursday, January 19, 1961, between 9:00 and 10:00 A.M. snow began to fall, the storm lasting for 24 hours. Estimates of the extent of the fall ranged from six inches to 12 inches, and the testimony shows that it was accompanied by some drifting. The weather bureau reports noted a four inch precipitation on January 19, another 6.4 inches on January 20, and an accumulation of 10 inches on the ground on January 20 and 21. The temperatures ranged for the three days from 20 degrees on Thursday, to 10 degrees on Friday and 0 degree on Saturday. For reasons to be set forth, the borough had been unable to remove any of the snow from the parking lot by Saturday, January 21, when the mishap occurred which produced this damage action.
On Saturday around 6:30 P.M., about 33 hours after the storm ended, plaintiff, John Amelchenko, parked his car in the borough's lot. The snow which covered the area was rutted in places where automobiles had driven or parked. The extent of the rutting does not appear. Where there were no ruts the snow was in its natural state, with some unevenness in the surface, apparently due to the drifting. In addition, because of the cold weather, a crust had formed on top of the snow. When stepped on at some places the crust would sustain the walker, at others his feet would go through into the deep snow. Amelchenko walked out of the lot from his car to
the public street without mishap. On the way back to the car at about 10:30 P.M., while walking over the uneven ice-crusted snow, he slipped and fell, sustaining injuries on account of which he brought this suit against the borough.
At the trial, after the evidence of both parties had been introduced, the court granted defendant's motion for judgment on the ground that no negligence had been shown on the part of the borough. Plaintiff appealed to the Appellate Division which found the proof sufficient to raise a factual issue as to whether the borough was negligent in failing to clear the parking lot of snow or to clear walkways for parkers prior to the time of plaintiff's fall. Consequently, the action of the trial court was reversed and the cause was remanded for a new trial. 81 N.J. Super. 289 (App. Div. 1963).
The borough appealed to this Court under R.R. 1:2-1(a) alleging that the adverse result in the Appellate Division created a constitutional question which justified direct appeal. The argument is that Article IV, § VII, paragraph 11 of the New Jersey Constitution which requires a liberal construction of statutes concerning municipalities, was violated because the Appellate Division's declaration of the inapplicability of R.S. 40:9-2 (a law concerning municipal immunity from liability in certain situations), represents a narrow construction of the statute. The contention raises no substantial or colorable constitutional issue within the meaning of R.R. 1:2-1(a), and our jurisdiction should not have been invoked by appeal. A petition for certification was filed also and although not pursued, we have decided to review the case as if certification had been granted.
The basic complaint against defendant is that it was negligent in failing to remove the snow from its public parking lot, which failure left a condition dangerous to invitees lawfully walking in the lot. Neither the complaint nor the pretrial order charged negligence in not closing off the lot until the snow was removed. The borough not only denied negligence but asserted immunity from liability under R.S. 40:9-2 which provides 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." L. 1933, c. 460.
There is no need to consider the reasons advanced by the trial court or the Appellate Division for treating R.S. 40:9-2 as inapplicable, i.e., that operation of a municipal parking lot is a proprietary and not a governmental function. 81 N.J. Super., at pp. 293, 294. Clearly the statute is not relevant for a more basic reason. The Legislature has dealt specifically with municipal liability for injuries to members of the public arising out of parking lot operation or maintenance. In 1942, N.J.S.A. 40:60-25.5 was adopted. It says:
"No municipality shall, by virtue of its operation or maintenance of any such public parking area, be liable in damages to any person, * * * for the loss of or for any damage to any vehicle while parked in any such area, or while entering or leaving the same, for the loss of or damage to any article or articles from any vehicle, or for any personal injury which may be sustained while in or upon any such area or the entrances thereto or exits therefrom; provided, however, that this provision shall not be so construed or applied as to relieve the municipality from any liability which may be imposed upon it by law for the negligence of its agents, servants or employees." L. 1942, c. 138.
The portion of the act preceding the proviso is unclear. It may be the legislative intention was to immunize the municipality against claims for damages or injuries inflicted by patrons or other invitees using the parking facility. That question is not before us. But it is plain from the proviso that the Legislature intended to recognize liability for injuries or damage negligently inflicted upon invitees on the premises by agents, servants or employees of the municipality itself. And we take the unqualified language to signify such liability whether the parking lot is deemed a governmental or a proprietary function.
Thus we come to the ultimate question whether the proof adduced at the trial established any negligence on the part of the borough or its agents or employees in the operation of the ...