On appeal from the Superior Court of New Jersey, Law Division, Union County.
Before Judges Shebell and Baime. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
Plaintiff, Enia Farias, appeals the dismissal of her complaint against defendant, Township of Westfield ("Township"), on summary judgment. We affirm.
On October 24, 1994, plaintiff filed a complaint against the Township alleging that, as a result of defendant's negligence, she fell on property under the control of the Township and sustained serious injuries. The complaint also named several other defendants, including the County of Union ("County"), the State of New Jersey ("State"), New Jersey Transit ("NJT"), and Consolidated Rail Corp. ("Consolidated"). Motions for summary judgment by the County and Consolidated were unopposed and the complaint was dismissed as to those defendants. The State and NJT settled with plaintiff and a Stipulation of Dismissal was filed as to those defendants. The Township moved for summary judgment on or about September 27, 1995. Plaintiff opposed the motion and oral argument was heard after which an order of dismissal was entered. Plaintiff's motion for reconsideration was denied.
On February 8, 1994, plaintiff, while walking under the train trestle located at Park Plaza in Westfield, slipped and fell on accumulated ice that was concealed by a recent snowfall. She suffered a severe fracture in her left ankle resulting in a permanent injury. Plaintiff asserts that the dangerous condition was created in part by the Township's failure to provide a warning of the hazardous condition and failure to maintain the premises in a safe manner. Plaintiff urges that the icy conditions were not created solely by the weather, but rather by an artificial condition that allowed runoff and melting ice or snow to accumulate in a pool on the sidewalk.
A professional engineer conducted an investigation of the accident site on plaintiff's behalf. He found that due to a defect in the construction of the sidewalk, there was a propensity for puddles to form, which would turn to ice during the winter months. He reported that "the persons responsible for the maintenance of the area knew of or should have foreseen the propensity for ice to form in the area," and that the failure to remedy this condition was palpably unreasonable.
The road abutting the sidewalk where plaintiff fell is owned by the State of New Jersey, as is the railroad trestle that is located above the sidewalk. A NJT employee admitted that NJT was aware of the runoff from the train tracks onto the sidewalk below the trestle, that NJT was responsible for the maintenance of this area and that nothing was done to correct the problem.
The Township's Superintendent of Public Works and Maintenance testified that one of his responsibilities was to oversee the streets, roads and parks, including sidewalks of the Township. The Plaza was considered a Township park area, however, the Superintendent testified that the sidewalk under the train trestle was under the control of the State, while the sidewalk approaching the trestle from either side was under Township control. He also testified that the State replaced the sidewalk under the trestle, extending a short distance beyond it, about five (5) to ten (10) years prior to the accident. He maintained that the Township was not responsible for the maintenance of the sidewalk under the trestle, including salting, sanding or plowing and that he did not assign any supervisor to perform any such work in February 1994. He would, however, assign Township employees to sand or salt the sidewalks north and south of the train trestle. He conceded that Township employees might clear the sidewalk under the trestle to get to the sidewalk on the other side, but he was not aware of any specific times this occurred. He was not aware of any runoff from the train tracks to the sidewalk under the trestle, nor did he ever inspect the sidewalk in that area. The Township Public Works Department placed trash cans on the sidewalk in the area of the trestle because of the high pedestrian traffic.
In 1972, the Legislature enacted the Tort Claims Act ("Act"), N.J.S.A. 59:1-1 to 5-5. Under the Act "'the [court's] approach should be whether an immunity applies and if not, should liability attach.'" Rochinsky v. New Jersey Dep't of Transp., 110 N.J. 399, 408, 541 A.2d 1029 (1988) (quoting N.J.S.A. 59:2-1 Task Force Comment.). The burden of proof for establishing immunity lies with the public entity. Bligen v. Jersey City Housing Authority, 131 N.J. 124, 128, 619 A.2d 575 (1993). In deciding if a pubic entity is immune, this court must "identify the culpable cause of the accident and [ ] ask if that 'identified cause or condition is one that the Legislature intended to immunize.'" Levin v. County of Salem, 133 N.J. 35, 43, 626 A.2d 1091 (1993) (quoting Weiss v. New Jersey Transit, 128 N.J. 376, 380, 608 A.2d 254 (1992)). On an appeal from a grant of summary judgment to the public entity, we should "accept as true plaintiff's version of the facts ... giving her the benefit of all inferences favorable to her claim." Pico v. State, 116 N.J. 55, 57, 560 A.2d 1193 (1989).
N.J.S.A. 59:4-7 establishes weather immunity for public entities as follows: "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." Ibid. The Supreme Court in Pico, (supra) , examined the application of the weather immunity provision contained in the Act. After exploring the cases where this court had applied or declined to apply weather immunity to a public entity, it concluded that a public entity "may be liable for the failure to correct a known pre-existing dangerous condition unrelated to the weather, but that it is immune from liability for such a condition caused solely by the weather," even where its failure to respond after actual notice is palpably unreasonable. Pico, (supra) , 116 N.J. at 58-61. In Meta v. Township of Cherry Hill, 152 N.J. Super. 228, 377 A.2d 934 (App. Div.), certif. denied, 75 N.J. 587 (1977) and McGowan v. Borough of Eatontown, 151 N.J. Super. 440, 376 A.2d 1327 (App. Div. 1977), we refused to apply the statutory weather immunity to the public entities in question because weather conditions were not the sole basis for imposing liability. In Meta, (supra) , the dangerous condition was created by a ditch on the side of a County roadway running through the Township that was filled with silt and vegetation causing the water to overflow onto the roadway and freeze. Meta, (supra) , 152 N.J. Super. at 231. Both public entities had actual notice of the dangerously icy condition of the roadway and failed to act. Ibid. Liability was held to be available under N.J.S.A. 59:4-4 for failure to warn. Id. at 232-34.
Similarly, in McGowan, (supra) , we found that the icy condition was caused by runoff from a restaurant driveway onto a State highway, which due to the improper drainage of that water from the highway, froze during cold weather. McGowan, (supra) , 151 N.J. Super. at 445. We held that the public entity could not be relieved of liability under the statutory weather immunity since the condition was not caused solely by the weather as the assertion of liability was premised on the improper granting of permits for the driveway and improper provision for drainage. McGowan, (supra) , 151 N.J. Super. at 447; see Pico, (supra) , 116 N.J. at 60.
By contrast, in Horan v. State, 212 N.J. Super. 132, 514 A.2d 78 (App. Div. 1986), an automobile accident occurred when plaintiff's car skidded on an icy bridge. Id. at 133. We held the State was immune from liability because the dangerous condition was caused solely by the weather. Id. at 133-34, 136. While recognizing that the icy condition was in fact a dangerous one, there was not a "protagonist partner" or alternative basis for liability similar to that found in Meta, (supra) , and McGowan, (supra) , which served to negate the public entity's immunity. Id. at 134. Rather, the condition was created because the bridge froze before the actual roadway did, ...