On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Justices Handler, Pollock, O'Hern, Garibaldi and Stein. Concurring in result -- Justice Clifford. The opinion of the Court was delivered by Pollock, J. Clifford, J., concurring.
The narrow issue on this appeal is whether defendant State of New Jersey (the State) is immune from liability to plaintiff, Loretta A. Pico (Pico or plaintiff), under the weather-immunity section of the New Jersey Tort Claims Act, N.J.S.A. 59:4-7, for failing to treat icy conditions on a state highway. The Law Division found that the weather immunity applied, and granted summary judgment for the State. Although the Appellate Division agreed that the weather immunity barred liability under N.J.S.A. 59:4-2 for a dangerous condition of State property, the court held that the State could be liable under N.J.S.A. 59:2-2a for the negligence of its employees in failing to treat the icy conditions. 223 N.J. Super. 446, 450 (1988). We now reverse and remand to the Law Division for the entry of judgment for the State.
Because this matter arises on the State's motion for summary judgment, we accept as true plaintiff's version of the facts as gleaned from the pleadings, affidavits, and depositions, giving her the benefit of all inferences favorable to her claim. R. 4:46-2; Portee v. Jaffee, 84 N.J. 88, 90 (1980); Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 61 (1980).
On January 24, 1984, an ice storm hit northern New Jersey around 3:00 a.m. At approximately 5:00 a.m., a Wayne Township policeman called the emergency number of the Department of Transportation (DOT) in Newark to report generally icy conditions along Route 23 in Wayne. DOT relayed this message to Patrick Avino, the foreman of the DOT maintenance yard in Totowa, which is approximately three miles from
Wayne. After making the call to Avino, the Newark DOT noted that "he will handle."
Between 7:30 and 7:50 a.m., Pico was driving northbound to work on Route 23 when she noticed that cars had pulled to the side of the highway and that people were waving their hands, apparently to warn approaching traffic. Her car skidded on a patch of ice, but she regained control and parked her car on the roadside. As she was walking to call her employer, she was injured when she was struck by a car driven by Eric Waller. According to Waller, the road was in good condition, and the accident happened when his car skidded sideways solely because of the icy conditions.
Plaintiff sued Waller, Wayne Township, Passaic County, and the State. She settled her claim against Waller, and has not petitioned this Court for review of the grant of summary judgment in favor of the township and the county, neither of which had jurisdiction over Route 23, a state highway.
In its motion for summary judgment, the State claimed that the suit was barred because of the weather immunity provided by N.J.S.A. 59:4-7, which provides: "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." For the purpose of its motion, the State conceded that its failure to respond to notification of the icy road conditions was palpably unreasonable.
The Law Division granted the State's motion because of the weather immunity under N.J.S.A. 59:4-7. Although the Appellate Division agreed that the weather immunity precluded liability under N.J.S.A. 59:4-2 for a dangerous condition, 223 N.J. Super. at 449-50, the court concluded that the State might be liable under N.J.S.A. 59:2-2a for Avino's negligence. According to the court, Avino may have undertaken a ministerial duty to protect motorists when he said that he would take care of the icy ...