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Miehl v. Darpino

Decided: November 25, 1968.

THEODORE MIEHL, PLAINTIFF-RESPONDENT,
v.
JERRY DARPINO, DEFENDANT, AND THE CITY OF HAMMONTON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



For reversal -- Chief Justice Weintraub and Justices Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.

Haneman

The Appellate Division affirmed a judgment against the city of Hammonton for injuries sustained in an accident allegedly caused by the presence of a pile of snow created in connection with snow removal by said city. 99 N.J. Super. 1 (1968). This Court granted defendant's petition for certification. 51 N.J. 397 (1968).

The facts developed at the trial are as follows: On or about January 13, 1964, there had been a heavy snowfall in the city of Hammonton. The snow on Bellevue Avenue, a state highway, was plowed to the curb by the State Highway Department while that on Second Street was similarly plowed by a contractor of the city. The snow thus pushed to the side of both streets was removed by the city by depositing it in trucks with a front-end loader. On the day in question, there remained a pile of snow two to three feet in height at the apex, located partially on the sidewalk and partially in the street at the intersection of Bellevue Avenue and Second Street. This condition allegedly resulted from the plowing activity of the city. Plaintiff, a mailman, was

walking to work when he was injured on or about 7:00 A.M. on January 23, 1964, at that intersection. The accident from which the injuries arose, occurred when plaintiff attempted to cross Bellevue Avenue at Second Street. He testified that in order to cross he had to pass through a narrow passage in this snow pile, evidently created by the passage of earlier pedestrians. After having traversed this path, he took several steps to his left and stopped, waiting for a lull in the traffic. While standing in the street, preparatory to crossing Bellevue Avenue, he saw a car on his right, making a left turn, veer toward him. He attempted to avoid the oncoming vehicle but could not step back through or find an opening in the pile of snow. He stated that:

"I was trapped because of the fact that I couldn't climb the snow and the treacherous condition of this ice which had melted and accumulated during the night, the accident was over. Evidently, it had interfered with my getting away from the front of this car; and if it wasn't for the hazardous condition there at that intersection, I would have made it."

The car struck and injured him. Plaintiff settled with defendant, Jerry Darpino, who was thereupon dismissed from the suit. The action proceeded to trial against the City of Hammonton. The jury returned a verdict in the amount of $35,000 against which an appropriate credit was given for the settlement by the joint tortfeasor, Jerry Darpino.

Plaintiff argues that (1) even though performing a governmental function, the municipality is liable as it created a hazardous condition by its affirmative act; in any event (2) a municipality should be held liable for injuries resulting from conditions caused by snow removal in the same manner and to the same extent as individuals; (3) municipal immunity from liability in tort should be terminated in all cases of ministerial acts, i.e., acts which do not involve governmental planning or decision making.

Plaintiff, relying upon the increasing dissatisfaction with the municipal governmental-proprietary test to measure

liability, Hoy v. Capelli, 48 N.J. 81 (1966); Visidor Corp. v. Borough of Cliffside Park, 48 N.J. 214 (1966); Jackson v. Hankinson and Bd. of Ed. of New Shrewsbury, 51 N.J. 230 (1968), argues that there is no logical reason for a municipality not to be liable for injuries resulting from snow removal, to the same extent and upon the same basis as an individual. Plaintiff cites Gentile v. National Newark and Essex Bkg. Co., 53 N.J. Super. 35 (App. Div. 1958) and Foley v. Ulrich, 50 N.J. 426 (1967) adopting the Appellate Division's dissenting opinion in 94 N.J. Super. 410 (App. Div. 1967), as authority for the rule of conduct which he proposes to impose upon a municipality. Under the rule as so suggested, a municipality would be liable when the hazard arising from a natural accumulation of snow is increased through the introduction of a new element of danger in the street snow removal.

There can be no doubt that the law of municipal tort liability is going through a metamorphosis. As stated in B.W. King, Inc. v. Town of West New York, 49 N.J. 318 (1967), at pp. 324-325:

"* * * Municipal immunity from tort liability and the proprietary-governmental test have fallen into considerable disrepute. There is a consensus that most of the reasons for immunity have expired and that municipal ...


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