On appeal from the Superior Court, Appellate Division, whose opinion is reported at 249 N.J. Super. 440 (1991).
Garibaldi, Wilentz, Handler, Pollock, Stein, Clifford, O'Hern
The opinion of the court was delivered by
In this appeal we consider whether defendant, Jersey City Housing Authority ("JCHA"), is immune from liability for negligent snow removal under either the weather-immunity provision of the New Jersey Tort Claims Act, N.J.S.A. 59:4-7, or the common-law immunity for public entities snow-removal activities. Both courts below found that the weather-immunity provision did not exempt JCHA from liability. However, the trial court held that plaintiff could not prevail because JCHA enjoys common-law immunity for its snow-removal activities. The Appellate Division, however, rejected the Conclusion that the common-law immunity for snow-removal activities extended to JCHA. 249 N.J. Super. 440, 443 (1991). We granted JCHA's petition for certification, 127 N.J. 533 (1991), and now affirm the Appellate Division.
Because this case arises on JCHA's motion for summary judgment, we accept as true the facts presented by plaintiff and give plaintiff the benefit of all inferences favorable to her claim. R. 4:46-2; Pico v. State, 116 N.J. 55, 57 (1989). Emily Bligen, the plaintiff, lived in the A. Harry Moore Housing Complex owned by JCHA. The 7.62 acre complex has six apartment buildings and a recreation area. An entrance located at the east end provides access to an internal driveway. The semi-circular driveway, which leads out to Duncan Avenue, varies in width from eighteen to twenty-one feet and crosses the outer edge of the property. Parking spaces are perpendicular to the length of the driveway, and walkways lead from the parking spaces to the apartment buildings.
Plaintiff was on her way to meet a friend when she slipped and fell on ice in the driveway outside of her apartment building. The accident occurred on a Sunday evening in January. According to plaintiff, no snow had been cleared during the weekend, although there had been a snowstorm the previous Friday. The path she took from the sidewalk outside of her building to the parking area contained compacted snow formed by pedestrians who had ventured out during the weekend. Ms. Bligen herself had not been out of her apartment during the weekend because of the snow. As she was stepping off the curb into the parking area to meet her friend's waiting car, she slipped and fell, severely fracturing her wrist.
The resident-manager of the complex stated in his deposition that the apartment complex employed seventeen maintenance workers and that "whenever it snows the entire seventeen men are assigned to removing the snow." He further stated that the complex had priority for city plows, and had its own equipment, including sand, salt, and shovels to clear snow and ice. The maintenance staff inspected the premises daily.
Plaintiff filed a complaint against JCHA seeking damages for the injuries she had sustained from her slip and fall. JCHA, claiming that it was immune from suit as a public entity both under N.J.S.A. § 59:4-7 and the common law, moved for summary judgment. The Law Division found that the weather immunity did not apply but that common-law immunity did. The Appellate Division agreed that the weather immunity did not apply but reversed the Law Division's grant of JCHA's motion because it found that the common-law immunity for routine snow-removal activities did not extend to public housing authorities. The common law imposed the same duty on public housing authorities as it did on private property owners, namely, "the obligation to exercise reasonable care in making the premises safe for its occupants." 249 N.J. Super. at 443.
In 1972 the Legislature enacted the New Jersey Tort Claims Act, N.J.S.A. § 59:1-1 to 12-3 (the Act), in response to the judiciary's weakening of the traditional doctrine of sovereign immunity. See Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 404 (1988) (describing the Act's history). The Legislative Declaration to the Act states 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." N.J.S.A. § 59:1-2.
Any liability of a public entity established under the Act "is subject to any immunity of the public entity." N.J.S.A. § 59:2-1(b). According to the official Comment, that section "is intended to insure that any immunity provisions provided in the act or by common law will prevail over the liability provisions."
We recognize that "immunity is the dominant consideration of the Act." Manna v. State, 129 N.J. 341, 347 (1992) (citations omitted). As the Comment to N.J.S.A. § 59:2-1, further states, courts should employ an analysis that first asks "whether an immunity applies and if not, should liability attach."
JCHA alleges that both the weather immunity and the common-law immunity of public entities from liability for their snow-removal activities apply to bar plaintiff's suit. The burden of proof in establishing the applicability of the immunities rests with the public entity. Manna v. State, supra, 129 N.J. at 351. Reviewing all the facts and drawing all the inferences in plaintiff's favor, we conclude that JCHA failed to meet its burden in establishing the applicability of either the weather immunity or the common-law immunity.
The weather-immunity provision of the Act 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.
We agree with both of the courts below that the weather-immunity provision does not apply because the accident did not occur on a "street" or "highway" for purposes of N.J.S.A. § 59:4-7. Neither the Act, its legislative history, nor any New Jersey case defines the words "street" or "highway" in the context of the weather-immunity provision. The New Jersey cases in which the applicability of the weather-immunity provision has been at issue have concerned accidents that occurred on or were caused by skids on streets or highways. Manna v. State, supra, 129 N.J. at 341; Pico v. State, 116 N.J. 55 (1989); Horan v. State, 212 N.J. Super. 132 (App. Div. 1986); Meta v. Township of Cherry Hill, 152 N.J. Super. 228 (App. Div. 1977); certif. denied, 75 N.J. 587 (1977); McGowan v. Borough of Eatontown, 151 N.J. Super. 440 (App. Div. 1977).
JCHA argues that the paved nature of the driveway and the vehicular traffic convert the driveway into a "street." The argument is unpersuasive. The area is limited in use and is intended exclusively for the housing complex's tenants and guests. It is not a through street. It is an internal driveway that serves only as an access route to the apartment complex. Common sense dictates that there is a difference between a "highway" or a "street," and a twenty-one-foot-wide internal driveway abutting parking spaces in an apartment complex.
We need not look only to the common usage of the words "street" and "highway" to decide that an internal driveway is not within the Act. ...