On appeal from Superior Court of New Jersey, Law Division, Essex County.
J. H. Coleman and R. S. Cohen. The opinion of the court was delivered by J. H. Coleman, J.A.D.
The question again raised by this appeal is whether a public entity has absolute immunity as to actions against it for negligent snow removal. Alexander Rochinsky (plaintiff) filed a complaint against all defendants seeking damages as the result of a single motor vehicle accident which occurred on Route 21 in Nutley, Essex County, New Jersey on February 14, 1983. Plaintiff was a passenger in a motor vehicle which collided with a snowbank, left without any warning, in the travelled portion of the roadway. A snowstorm on February 11 and 12, 1983 deposited more than 16 inches of snow in the general area. The State of New Jersey, Department of Transportation (Department) and its contractors conducted the snow removal operations.
The Department moved for summary judgment claiming a blanket common law immunity from suit for negligent snow removal. The trial judge considered the conflict between Paternoster v. N.J. Transp. Dept., 190 N.J. Super. 11 (App.Div.1983), cert. den. 96 N.J. 258 (1983) and Manca v. Borough of Hopatcong, 157 N.J. Super. 67 (App.Div.1978), cert. den. 77 N.J. 480 (1978) and concluded that Manca was better reasoned. He therefore followed Manca and granted summary judgment to the Department. This partial summary judgment became a final judgment when all other claims were dismissed. Plaintiff has appealed. We now reverse.
On this appeal plaintiff argues that Paternoster should have been followed and a jury should have been permitted to decide whether the Department's conduct was palpably unreasonable. The Department argues, as it did before the motion judge, that it was entitled to summary judgment based upon the common law immunity for negligent snow removal recognized in Miehl
v. Darpino, 53 N.J. 49 (1968) which was found by Manca not to have been altered by the New Jersey Tort Claims Act, (the Act), N.J.S.A. 59:1-1 et seq. The core question for our determination is whether the Miehl per se immunity for negligent snow removal was changed by the Act, and if it was, whether an issue for the jury was presented. The answers require an analysis of the Act.
N.J.S.A. 59:2-1a confers immunity upon all public entities "[e]xcept as otherwise provided by this act [ N.J.S.A. 59:1-1 et seq. ]." The comment to this section states that the analytical approach for the judiciary " should be whether an immunity applies and if not, should liability attach." See also N.J.S.A. 59:2-1b. The Act further provides that "[a] public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." N.J.S.A. 59:2-2a. The comment to this subsection provides:
While the general approach of this act is immunity unless liability, this section provides a flexible liability provision which will permit the courts to adapt the principles established in this act to the particular circumstances of the cases coming before them. In addition it permits the courts to continue to recognize common law immunities to the extent they are consistent with the provision of this act. (Citations omitted) (Emphasis added).
When these two sections are read in conjunction with the comments, it is apparent to us that the Legislature intended for common law immunities to continue following enactment of the Act only "to the extent they are consistent with the provisions of this act." Consequently, other sections of the Act must be examined to see if the Miehl common law immunity survived the Act.
As we observed earlier, the analytical approach is that the governmental entity has immunity unless provided otherwise in the Act. The Act does provide otherwise. It establishes immunity for certain discretionary decisions made by public entities and their employees. N.J.S.A. 59:2-3a, b, c, and d.
Subsection a immunizes a public entity for injury resulting from the exercise of judgment or discretion "in making basic policy -- the type made at the planning, rather than the operational, level of decisionmaking." Brown v. Brown, 86 N.J. 565, 577 (1981) (citing Costa v. Josey, 83 N.J. 49, 59 (1980)). Under subsection b immunity is established for legislative, administrative or judicial action or inaction of a legislative or judicial nature. Subsection c "is concerned . . . with the exercise of discretion in determining whether to provide the resources necessary for certain purposes." Brown v. Brown, supra, 86 N.J. at 577. Subsection d "involves the exercise of discretion when, in the face of competing demands, the governmental body determines whether and how to utilize existing resources." Ibid. The comments to the foregoing subsections indicate that the Legislature was motivated to establish absolute immunity only for high-level policy decisions because "it cannot be a tort for government to govern." Comment to ...