On certification to the Superior Court, Appellate Division, whose opinion is reported at 214 N.J. Super. 525 (1986).
For affirmance as to part II -- Chief Justice Wilentz and Justice Handler. For reversal as to part II -- Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. For remand and amending complaint as to part III -- Chief Justice Wilentz and Justices Handler, O'Hern and Stein. For remand and reinstatement of judgment as to part III -- Justices Clifford, Pollock and Garibaldi. The judgment of the Court was delivered by Stein, J. Handler, Justice, concurring in part and dissenting in part. Chief Justice Wilentz joins in this opinion. Clifford, Justice, dissenting in part. Justices Pollock and Garibaldi join in this opinion.
In this case we consider whether the absolute immunity for snow-removal activities conferred on public entities by our decision in Miehl v. Darpino, 53 N.J. 49 (1968), was preserved by the enactment of the Tort Claims Act, N.J.S.A. 59:1-1 to 14-4 (the Act). We conclude that the Act did not abrogate that immunity.
The facts are uncomplicated. On February 11 and 12, 1983, a major snowstorm deposited more than sixteen inches of snow in and around Essex County. The New Jersey Department of Transportation (DOT) and its contractors performed snow-removal activities in the area from 9:00 a.m. on February 11, 1983 until 11:30 p.m. on February 13, 1983. DOT continued cleanup operations thereafter during normal working hours. On February 14, 1983, plaintiff Alexander Rochinsky was a passenger in a motor vehicle that overturned in the right southbound lane of Route 21 in Nutley, New Jersey. Plaintiff and his wife filed a complaint against defendants seeking damages for his injuries. The complaint alleged that defendants carried out snow removal in a "grossly negligent, hazardous and reckless manner * * * as to cause and create a dangerous condition on the highway." In answers to interrogatories, plaintiffs amplified their description of the accident, alleging that the lane in which the vehicle was traveling "ended due to a snowbank," and attributing the accident to defendants' "inadequate snow removal * * * specifically, the partial plowing of a major roadway creating a snowbank ending the lane of traffic without warning and without regard to traffic circumstances."
The DOT invoked the Miehl immunity and moved for summary judgment. The trial court was faced with conflicting Appellate Division holdings on the question whether the Tort Claims Act preserved the Miehl immunity. In Manca v. Borough of Hopatcong, 157 N.J. Super. 67 (App.Div.), certif. denied, 77 N.J. 480 (1978), the plaintiff alleged that her accident had been caused by a public entity's snow-removal activities that had
narrowed the road width and allowed icy ruts to form. The court rejected plaintiff's argument that the Act superseded judicial decisions predating its adoption. Affirming the summary judgment granted in favor of the public entity, the court found nothing in the Tort Claims Act that reflected a "legislative intent to abolish the immunity established in the area of discretionary municipal activities typified by Miehl." Id. at 73.
A different panel of the Appellate Division reached the opposite conclusion in Paternoster v. New Jersey Transp. Dep't, 190 N.J. Super. 11 (App.Div.), certif. denied, 96 N.J. 258 (1983). In that case, a three-vehicle collision occurred when the driver of one vehicle entered an intersection and failed to observe two other approaching vehicles. Plaintiffs alleged that the accident was caused by the presence of high snowbanks at the corner of the intersection. The State had lowered the height of these snowbanks on two occasions in the days preceding the accident. The court ruled that because Miehl was a pre-Tort Claims Act case, it was no longer controlling. Id. at 17. It relied on N.J.S.A. 59:2-3(d), which exposes a public entity to liability "for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources," if that determination was "palpably unreasonable." The court also noted that subsection (d) distinguishes discretionary functions from ministerial functions and provides that N.J.S.A. 59:2-3 does not insulate the performance of ministerial functions from liability. The court concluded that the conduct of the public entities in the case before it could not be accorded immunity as a matter of law and had to be measured against the "palpably unreasonable" standard. Id.
In this case the trial court followed Manca and granted the DOT's motion for summary judgment, but the Appellate Division reversed. Rochinsky v. State, Dep't of Transp., 214 N.J. Super. 525 (1986). The court reasoned that the Legislature intended pre-existing common-law immunities to survive only to the extent they were consistent with the Act. Id. at 528.
Because the court interpreted Miehl as establishing immunity for snow-removal activities involving both discretionary decisions as well as ministerial operations, it concluded that Miehl was inconsistent with N.J.S.A. 59:2-3 and therefore was modified by the Act. Id. at 529. The court also held that Miehl 's immunity was abrogated by N.J.S.A. 59:4-7, which affords public entities immunity from liability only for injuries caused solely by weather conditions in their natural state, but not for injuries caused by a combination of weather conditions and snow-removal activities. We granted certification, 107 N.J. 124 (1987), and now reverse.
In 1972, the Legislature enacted the Tort Claims Act in response to mounting judicial disfavor with the doctrine of sovereign immunity. This Court had observed that "[sovereign] immunity from tort liability * * * [had] fallen into considerable disrepute." B. W. King v. West New York, 49 N.J. 318, 324 (1967). We acknowledged that "the difficulty with the articulation of a substitutionary rule lies in the ascertainment and expression of a perimeter for liability," and held that "the problem should be approached on * * * a gradual case by case basis." Id. at 324, 325. We also observed that "[t]he analytical approach ought not to be one of asking why immunity should not apply in a given situation but rather one of asking whether there is any reason why it should apply." Id. at 325. Three years later we speculated that a comprehensive legislative solution to the question of when public entities should be held liable in tort had "been delayed by the difficulty inherent in expressing a doctrine * * *." Willis v. Department of Conservation & Economic Dev., 55 N.J. 534, 539 (1970). We concluded that until the Legislature acted, it was "time for the judiciary to accept * * * responsibility and adjudicate the tort liability of the State itself." Id. at 540; see also P.T. & L. Constr. Co. v. Commissioner of Transp., 55 N.J. 341 (1970) (abolishing the State's immunity in contract actions).
In the midst of this gradual erosion of judicial tolerance for the doctrine of sovereign immunity, public entities were held to be immune from liability for negligent snow removal. Miehl v. Darpino, supra, 53 N.J. 49. In Miehl, the City of Hammonton had received a heavy snowfall. Snowplowing operations at the intersection of two streets had left snowbanks on the corners of the intersection. Only a narrow passage in the snow bank allowed pedestrians to enter the intersection. Plaintiff, who was attempting to cross one of the streets, traversed the passageway, took several steps to his left, and waited for a lull in traffic. An approaching car veered toward him. Plaintiff tried to avoid the vehicle, but was struck because he was unable to find an opening in the snow through which he could regain access to the sidewalk. He alleged that his injuries were caused by negligent snowplowing.*fn1 This Court, through Justice Haneman, acknowledged that "the law of municipal tort liability [was] going through a metamorphosis," and analyzed the snow-removal function to "determine whether the present situation [snow removal] is one in which, as a matter of policy, the municipality should not enjoy immunity, but rather should be subject to * * * liability." Id. at 53.
Focusing on the unique challenge snow removal poses for public entities, Justice Haneman concluded that this was an activity for which public-entity immunity was particularly essential. He reasoned:
Snow is a common enemy interfering with normal pedestrian and vehicular traffic and on occasion results in a complete paralysis thereof. Drastically curtailing commerce and industry, it also endangers the general public safety as well, since police, fire, ambulance and medical services are unable to function efficiently throughout the entire community. The need for snow removal
becomes imperative, and the municipality although not duty bound to so act, is under great pressure to exercise its governmental function and alleviate the condition. The cost of snow removal even to a limited extent is great.
Frequently, the area contiguous to plowed streets, including private driveways and sidewalks, is encumbered by additional snow through street plowing. To accede to plaintiff's thesis would be to require a municipality to completely remove all snow and ice -- to in effect "broom sweep" all the traveled portion of the streets, driveways and sidewalks where natural snowfall has been disturbed by any removal of street snow. Only in this manner could a municipality be certain that no accident could occur from the creation of a "new element of danger." Such a requirement would impose upon the municipalities of this state a duty not only impractical but also well-nigh impossible of fulfillment. The high cost of such an undertaking could make the expense of any extensive program of snow removal prohibitive and could result in no program or in an inadequate partial program. Patently, some cleaning of snow is better than none. The public is greatly benefited even by snow removal which does not attain the acme of perfection of "broom swept" streets. Relief from fallen snow which does not eliminate all danger of accident is better than none.
The unusual traveling conditions following a snowfall are obvious to the public. Individuals can and should proceed to ambulate on a restricted basis, and if travel is necessary, accept the risks inherent at such a time. To require the individual members of the public to assume the relatively mild additional danger presented by accumulated piles of snow resulting from street snow removal is a minor sacrifice to exact when the alternative could be municipal failure to eliminate the far greater danger caused by permitting snow to remain as deposited by natural forces. The public benefit arising from snow removal far outweighs any slight, private detriment which could accompany such a municipal act. [ Id. at 53-54.]*fn2
In response to this evolving body of case law dealing with tort liability of public entities, the Attorney General prepared a comprehensive report on sovereign immunity which led to the enactment of the Tort Claims Act.*fn3 The law became effective
on July 1, 1972, and contained the following legislative declaration:
The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carrying out the above legislative declaration. [ N.J.S.A. 59:1-2.]
The first substantive section of the Act establishes the analytical framework to be used in resolving questions of governmental immunity: "Except as otherwise provided by this act, a public entity is not liable for an injury * * *." N.J.S.A. 59:2-1(a). Further, "[a]ny liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person." N.J.S.A. 59:2-1(b).
The Comment*fn4 to this section reveals the Legislature's overriding objective. It states that N.J.S.A. 59:2-1(a) "provides that the basic statutory approach of the [Act] shall be that immunity of all governmental bodies in New Jersey is re-established." In drafting section 2-1(a) the Legislature expressly adopted the reasoning of the California Law Revision Commission which is embodied in the California Tort Claims Act, Cal. Gov't Code § 810 et seq. The paramount concern was that a statute
imposing general liability, limited only by specified statutory immunities, would provide public entities with little basis on which to budget for the payment of claims and judgments for damages. The Comment rejected the concept of a statute that imposed liability with specific exceptions, expressing concern that such a statute would greatly increase the amount of litigation and the attendant expense that public entities would face. Instead, the Attorney General's Report recommended legislation providing "that public entities are immune from liability unless they are declared to be liable by an enactment." N.J.S.A. 59:2-1 Task Force Comment.
The Legislature specifically rejected the rationale favoring governmental liability expressed in B.W. King, supra, 49 N.J. 318 observing that
this approach is no longer necessary in light of this comprehensive Tort Claims Act. Rather the approach should be whether an immunity applies and if not, should liability attach. It is hoped that in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities. [ N.J.S.A. 59:2-1 Task Force Comment (emphasis supplied).]
Subsection 2-1(b) reflects the Legislature's intent to preserve common-law immunities:
Subsection (b) is intended to insure that any immunity provisions provided in the act or by common law will prevail over the liability provisions. It is anticipated that the Courts will realistically interpret both the statutory and common law immunities in order to effectuate their intended scope. [ N.J.S.A. 59:2-1 Task Force Comment (emphasis supplied).]
We have held that the plain meaning of N.J.S.A. 59:2-1 firmly establishes that "immunity is the dominant consideration of the Act." Kolitch v. Lindedahl, 100 N.J. 485, 498 (1985) (O'Hern, J., concurring); accord Birchwood Lakes Country Club v. Medford Lakes, 90 N.J. 582, 596 (1982). Even when one of the Act's provisions establishes liability, that liability is ordinarily negated if the public entity possesses a corresponding immunity. See Malloy v. State, 76 N.J. 515, 521 (1978) (giving priority to licensing function immunity provided by N.J.S.A. 59:2-5 over liability established by N.J.S.A. 59:2-2); see also Costa v. Josey, 83 N.J. 49, 61 (1980) (Clifford, J., dissenting) (finding Comment to section 2-1(b) to be "as explicit as possible").
Section 2-1(b) establishes the principle that even common-law and statutory immunities not contained in the Act can prevail over the Act's liability provisions. See In re Martin, 90 N.J. 295, 335 (1982) (provision of Casino Control Act, N.J.S.A. 5:12-80(b), granting immunity for any disclosures of confidential information on employment applications given full effect in light of N.J.S.A. 59:2-1(b)); Timber Properties, Inc. v. Chester Township, 205 N.J. Super. 273 (App.Div.1984) (holding that common-law rule that municipal legislators enjoyed absolute immunity from individual monetary liability "was preserved under the Tort Claims Act"); Trimblett v. State, 156 N.J. Super. 291 (App.Div.1978) (imputing to public entities the pre-existing statutory immunity afforded private landowners against liability to one who uses the landowner's premises for sport or recreation activities); see also Birchwood Lakes Colony Club v. Medford Lakes, supra, 90 N.J. 582 (employing pre-Act common-law theories in assessing public entity liability for nuisance actions); Burke v. Deiner, 97 N.J. 465 (1984) (interpreting common-law and statutory immunities in the context of defamation claim by director of parking authority against commissioners who had participated in resolution discharging him).
There are three principal liability sections in the Act. N.J.S.A. 59:2-2, incorporating the doctrine of respondeat superior, 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. 59:2-3 includes both immunity and liability provisions:
a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity;
b. A public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;
c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase
of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising ...