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Pico v. State

Decided: March 10, 1988.

LORETTA A. PICO, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY AND TOWNSHIP OF WAYNE, DEFENDANTS-RESPONDENTS, AND COUNTY OF PASSAIC AND ERIC A. WALLER, DEFENDANTS



On appeal from the Superior Court, Law Division, Passaic County.

Furman, Long and Scalera. The opinion of the court was delivered by Furman, P.J.A.D.

Furman

In granting summary judgment for defendants State of New Jersey and Township of Wayne, the trial court invoked the bar of weather immunity under the Tort Claims Act, N.J.S.A. 59:4-7:

Neither a public entity nor a public employee is liable for an injury caused solely by the effect on the use of streets and highways of weather conditions.

Plaintiff's claim against defendant Waller was settled. She is not pursuing an appeal from summary judgment for defendant County of Passaic, which was based upon no county jurisdiction

over Route 23, a State highway. We reverse summary judgment for defendant State and otherwise affirm.

The factual support in the record for plaintiff's claim is summarized as follows. Plaintiff was injured while commuting to work on Route 23 in Wayne shortly before 8 A.M. on January 24, 1984. Route 23 was glazed with ice from a freezing rain. Plaintiff's car skidded although she was proceeding cautiously at a slow speed. She regained control and pulled to the side of the road. She left her car with the intention of walking back to make a telephone call. In her deposition she described the road conditions as "slippery, very." As she walked around the back of her car she was struck and injured by defendant Waller's car which skidded sideways out of control.

Earlier that morning, just after 5 A.M., a Wayne police officer on duty telephoned the State Department of Transportation (DOT) in Newark to report the hazardous icy road conditions. The DOT report of emergency call, which was before the trial court on the summary judgment motions, recites that "icy conditions" on Route 23 in all of Wayne were reported by the Wayne police officer and that the information was given to Patrick Avino, the DOT foreman of maintenance at the Totowa maintenance yard, nearby Wayne, with the notation "he will handle." Route 23 extends for approximately five miles in Wayne Township.

The icy road conditions precipitated the accident in which plaintiff suffered her injury. Concededly, there was no contributing cause of the accident in the roadway itself, such as a depression or declivity in which an icy patch formed (cf. McGowan v. Borough of Eatontown, 151 N.J. Super. 440 (App.Div.1977)), or within the State's abutting right-of-way, such as a blocked up ditch impeding drainage (cf. Meta v. Township of Cherry Hill, 152 N.J. Super. 228 (App.Div.1977), certif. den. 75 N.J. 587 (1977)). Defendant State was exempt from liability for

a dangerous condition of its property under N.J.S.A. 59:4-2 because of the weather immunity of N.J.S.A. 59:4-7.

The statutory scheme of the Tort Claims Act is that immunity is the rule unless liability is specified and that liability under the act in turn is subject to any specific immunity under ...


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