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Owens v. City of Newark

June 5, 2007

VERONICA OWENS, PLAINTIFF-APPELLANT,
v.
CITY OF NEWARK, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-6113-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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