On appeal from the Superior Court of New Jersey, Law Division, Camden County.
As Corrected March 19, 1997. Approved for Publication February 21, 1997.
Before Judges Shebell, P.g. Levy and Braithwaite. 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
This matter comes to us on leave to appeal granted from the denial of the motion of defendant, Borough of Haddonfield, for summary judgment. The complaint of plaintiff, Ada Rossi, alleged the Borough negligently maintained a municipal parking lot in a dangerous condition causing her to fall and sustain serious injuries. We reverse and remand for dismissal of the complaint on the grounds of common law snow removal immunity.
On January 17, 1994, when plaintiff arrived at work, she noticed that the Borough parking lot, where she had a permit to park, was icy. It appeared in this same condition the week before the accident, at which time a co-worker called to inform the Borough of this icy condition. Plaintiff left work later in the day on an errand for her employer and fell as she was unlocking her car. It was just beginning to snow at the time she fell. She fractured her ankle and despite multiple surgeries, she is permanently injured.
The Borough owns the parking lot which, as all municipal parking lots in the Borough, required either the use of a parking meter or the purchase of a parking permit. There is a designated area for permit holders; however, it does not appear that permit holders have a specifically numbered space in which only they may park.
There had been light rain on Friday January 14, 1994, which turned to ice after the weather turned colder. The cold weather continued on Saturday January 15, 1994 and Sunday January 16, 1994, causing the ice to remain through the weekend. Snow began in Haddonfield about mid-morning on Monday January 17, 1994. The Borough stated in its answers to interrogatories that the lot was sanded on January 15, 1994. However, in his deposition, the Borough's Superintendent of Public Works could not specifically say that this parking lot had been sanded the weekend prior to the accident.
The Borough has between seven and eight full time employees who are assigned to the Streets Division, which has the function of snow removal and sanding. There are between seventy and ninety miles of roads which the Borough must maintain, not including sidewalks adjacent to municipal buildings and parking lots. The Borough has developed a priority system for snow removal under which the roads are attended to first, then areas adjacent to the entities providing emergency services, and finally the parking lots are cleared and/or sanded.
In denying the Borough's motion for summary judgment, the Judge stated:
I read the tort immunity statute the same way. It talks about streets and highways. This is not a street and highway. The government chooses to get itself involved in a revenue generating business, running a parking lot. They put themselves in the same position as Kinneys or any of the other parking lot operators. If they were operating a delicatessen, would they have immunity? I would think not. But the fact that it involves weather doesn't change the situation whatsoever. So the motion will be denied.
When the Borough moved for reconsideration, the Judge declined to vacate his previous order and analogized the Borough's operation of the parking lot as akin to the operation of a private business or commercial landlord.
The New Jersey Legislature enacted the New Jersey Tort Claims Act ("TCA", "Act"), N.J.S.A. 59:1-1 to 5-6, to reestablish immunity for public entities that had been gradually eroded by judicial decisions. Rochinsky v. New Jersey Dep't of Transp., 110 N.J. 399, 404, 541 A.2d 1029 (1988). The Legislature specifically provided that a court should first determine "'whether an immunity applies and if not, should liability attach.'" Id. at 408 (quoting N.J.S.A. 59:2-1 Task Force Comment). "The burden of proof in establishing the applicability of the immunities rests with the public entity." Bligen v. Jersey City Housing Authority, 131 N.J. 124, 128, 619 A.2d 575 (1993). When ruling on whether a public entity is immune, we must determine the cause of the accident and then decide if the Legislature intended to immunize the public ...