June 5, 2007
VERONICA OWENS, PLAINTIFF-APPELLANT,
CITY OF NEWARK, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-6113-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 23, 2007
Before Judges Yannotti and Messano.
Plaintiff Veronica Owens appeals from an order filed on October 20, 2006, dismissing her complaint against defendant City of Newark (City) for failure to state a claim upon which relief may be granted. We reverse.
Plaintiff filed a complaint in which she alleges that on December 4, 2005, she slipped and fell on ice and snow on premises maintained by the City's Fire Department. Plaintiff alleges that the City and the Fire Department negligently allowed the property to be in a dangerous condition at the time plaintiff was injured. Plaintiff claims that the "dangerous condition created a reasonably foreseeable risk of the kind of injury which was suffered by the plaintiff."
Plaintiff further claims the dangerous condition was created by the negligence of the City's employees in the scope of their employment; the Fire Department had "actual or constructive notice with sufficient time to have taken measures to protect against the dangerous condition"; and the City's failure to properly maintain the sidewalk was "palpably unreasonable." Plaintiff alleges that she was seriously injured as a result of the City's negligence.
In lieu of an answer, the City filed a motion to dismiss the complaint pursuant to R. 4:6-2(e), and argued that the complaint should be dismissed with prejudice on three grounds:
1) plaintiff failed to comply with the notice requirements under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3; 2) the City is entitled to weather immunity under N.J.S.A. 59:4-7; and 3) the City is entitled to immunity under the common law for snow removal activities. The judge heard the motion on October 20, 2006, and placed her decision on the record. The judge concluded that plaintiff had substantially complied with the notice requirements of the TCA. However, the judge found that the City is entitled to common law snow removal immunity. The judge entered an order dismissing the complaint with prejudice, and this appeal followed.
Plaintiff contends that the decision on whether the City is entitled to common law immunity for snow removal activities "should have abided discovery." We agree.
When a motion to dismiss is made pursuant to R. 4:6-2(e), the court reviews the pleading to determine whether a cause of action is "suggested" by the facts. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). The court's review of a motion under R. 4:6-2(e) is "limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Ibid. (citing Rieder v. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)). The court "searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).
Here, plaintiff claims that she was injured when she fell on a sidewalk maintained by the City's Fire Department. Plaintiff alleges that the dangerous condition was created by the negligence of the City's employees. Plaintiff additionally claims that the City had actual or constructive notice of the dangerous condition and failed to take measures to protect against the condition. Based on these allegations alone, the judge found that plaintiff failed to state a cause of action upon which relief could be granted because the City is entitled to immunity under the common law for snow removal activities.
The immunity for snow removal activities was established by Miehl v. Darpino, 53 N.J. 49 (1968), a case decided before the enactment of the TCA. In Miehl, the plaintiff was struck by an oncoming vehicle. The plaintiff alleged that when the car veered in his direction, he could not avoid it because the municipality had piled snow on the street and sidewalk after a heavy snowfall. Id. at 50-51. The Court held that the municipality was immune from liability arising from its snow-removal activities. Id. at 54. The Court explained the rationale for the immunity:
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. [Id. at 53-54.]
In Rochinsky v. State of N.J., Dep't of Transp., 110 N.J. 399 (1988), the Court considered whether the immunity under Miehl had been abrogated or limited by the TCA. In Rochinsky, the plaintiffs were injured when their vehicle overturned on a highway. According to the plaintiffs, the lane in which they were traveling ended at a snow bank, which plaintiffs claimed had been caused by negligent snow removal. Id. at 402. The Court held that Miehl immunity survived the enactment of the TCA. The Court observed, however, that under unique circumstances the immunity for snow removal activities could be construed to permit a cause of action against a public entity for conduct so egregious that its insulation from liability would be inconsistent with the public policy that the Miehl immunity was intended to foster. [Id. at 415 n.7.]
Our decisions after Rochinsky have applied the Miehl immunity. In Farias v. Twp. of Westfield, 297 N.J. Super. 395 (App. Div. 1997), we held that a municipality was immune under Miehl from liability for injuries sustained when the plaintiff fell on ice patches on a public sidewalk. Id. at 398. The plaintiff alleged that the municipality was liable because it failed to "salt and sand" the sidewalk. Id. at 402. We held that a public entity was immune under Miehl because these activities could not "be sufficiently distinguished from snow removal to escape the application of snow removal immunity." Ibid.
We reached a similar decision in Lathers v. Twp. of W. Windsor, 308 N.J. Super. 301 (App. Div.), certif. denied, 154 N.J. 609 (1998). In that case, the plaintiff alleged that he fell on a patch of ice on a sidewalk leading from the municipal building to a parking lot. Id. at 303. Snow had apparently "been removed from the sidewalk at an earlier time and piled adjacent to the walk." Ibid. The plaintiff claimed that the snow melted onto the sidewalk and froze. Ibid. We held that this was the "type of activity that the Miehl Court specifically intended to immunize." Id. at 304. We noted that there was no evidence that the municipality had been aware of the existence of the ice and "blatantly ignored it." Id. at 305 (quoting Farias, supra, 297 N.J. Super. at 402).
In this case, we cannot determine based solely upon the allegations in the complaint whether the City is entitled to snow removal immunity under Miehl. Although Miehl, Farias and Lathers make clear that a municipality is entitled to immunity for typical snow-removal activities, those decisions all recognize that, in certain circumstances, a public entity may not be entitled to immunity if its actions were egregious. Here, plaintiff has not alleged that the City's actions or omissions were egregious, but her claim that the City's employees were negligent is sufficiently broad to encompass such a claim.
We are therefore convinced that the judge erred by dismissing the complaint pursuant to R. 4:6-2(e). Plaintiff should be afforded an opportunity to engage in discovery and ascertain additional facts concerning the ice and snow conditions on the sidewalk outside of the City's firehouse on December 14, 2005. The issue of whether Miehl shields the City from liability can be considered again when discovery is complete.
Plaintiff also argues that the City is not entitled to weather immunity under N.J.S.A. 59:4-7. We note that the motion judge did not base her decision on the statutory immunity; however, it is clear that it does not apply here. The statute provides that a public entity or public employee shall not be "liable for an injury caused solely by the effect on the use of streets and highways of weather conditions."
By its terms, N.J.S.A. 59:4-7 does not apply to injuries that occur on a sidewalk. See Bligen v. Jersey City Housing Auth., 131 N.J. 124, 127-29 (1993) (holding that public entity is not entitled to weather immunity under the TCA when injury occurs on an internal driveway in an apartment complex because the injury did not occur on a "street" or "highway" for purposes of N.J.S.A. 59:4-7). See also Lathers, supra, 308 N.J. Super. at 303 (finding no immunity under N.J.S.A. 59:4-7 when plaintiff alleged that injury occurred on sidewalk and was not solely the result of weather conditions).
Plaintiff additionally argues that the time has come to consider whether the immunity under Miehl for snow removal should be abrogated or limited. However, we are bound by the Miehl decision and any change in the law in this area is a matter for the Supreme Court. Indeed, in his concurring opinion in Lathers, Judge Dreier stated that the Miehl immunity should be reconsidered, but recognized that any decision on whether the immunity should be abrogated or limited must be made by the Supreme Court. Lathers, supra, 308 N.J. Super. at 306-08 (Dreier, P.J.A.D., concurring). We note that the Supreme Court denied review in that case.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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