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Chambers v. Township of Howell

July 12, 2007

SANDRA CHAMBERS AND EDWARD CHAMBERS, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF HOWELL AND HOWELL TOWNSHIP BOARD OF EDUCATION, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-102-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 22, 2007

Before Judges Skillman and Holston, Jr.

This is a personal injury action arising from plaintiff Sandra Chambers' slip and fall accident on March 7, 2003 at 6:45 a.m. in the Howell Township Board of Education's (Board) transportation parking lot. The parking lot is owned by defendant Township of Howell (Township) and leased to and used by the Board as a school bus lot. Plaintiff appeals the Law Division's July 31, 2006 orders granting summary judgment to both defendants.*fn1 We affirm.

On the date of the accident, plaintiff was employed as a school bus driver by Laidlaw Transit, a private company under contract with the Board. Plaintiff had parked her car in the transportation parking lot, in order to walk across the lot to approach the school bus she intended to drive that day. Plaintiff asserts that she slipped and fell on ice while walking between two parked vehicles on the lot. On the Thursday night before the Friday morning accident, there had been freezing rain, sleet and snow. As a result of the fall, plaintiff contends she sustained severe back injuries.

Paragraph 2 of the lease of the Township garage, bus building and parking area adjacent to the building between the Township and the Board provides that the leased property will be accepted by the Board in its existing condition. The lease also provides that the Board shall be responsible for "all repairs, structural or otherwise, and upkeep of the facility."

As a result, the Board purchased large quantities of salt and sand. The Board's invoices with Atlantic Salt, Inc., its salt supplier, showed that the Board had purchased 308.57 tons of salt prior to March 7, 2003. When weather conditions produced snow or ice, the Board, using its own employees and equipment, sanded and/or salted the Board's parking lots in accordance with the Board's sanding/salting procedure. Maintenance department employee overtime records indicated that the Board's maintenance employees worked overtime from March 6-8, 2003, salting and sanding the Board's property, which consisted of thirteen schools and an administration building.

According to the certification of Mathew Zdaniecki, an employee of the Board's Buildings and Grounds Department, he sanded the transportation parking lot on March 6, 2003. He returned to salt the parking lot, including the area where plaintiff fell, on March 7, 2003 at approximately 4:30 a.m., because of the low overnight temperatures and the rain, freezing rain and sleet that had fallen the day before. Peter Brown, a maintenance department employee, certified that both he and Zdaniecki spread sand in the transportation parking lot at about 4:30 a.m. on the morning of plaintiff's accident. According to Kenneth Jones, Jr., the Board's Building and Grounds Department foreman, the usual procedure during inclement weather is to attend to the transportation parking lot first, because this is the location where the salt is stored.

Plaintiff sued the Township and the Board alleging negligence in the care, management and supervision of the property by both the Board and the Township. Plaintiff contends defendants failed to cure a dangerous condition, i.e., the patches of ice on the transportation parking lot. Plaintiff claims defendants improperly and negligently cleared the ice from the parking lot prior to plaintiff's arrival, which negligence was the proximate cause of her slip and fall and the injuries she sustained.

Plaintiff's liability expert, engineer Wayne F. Nolte, opined that the parking lot was in a "hazardous and dangerous condition on the morning of March 7, 2003." The condition resulted from inadequate application of sand and salt to the property, which Nolte opined was palpably unreasonable. Nolte also asserted that "[t]he parking lot [did] not contain a drainage facility to assist in the removal of water." Nolte stated that the application of salt to the snow and ice on the lot causes the ice and snow to melt. However, the inadequate drainage facility, combined with low temperatures, causes the water to refreeze causing a more dangerous condition to persons in plaintiff's position. Nolte opined that the untreated ice condition on the parking lot surface caused plaintiff to slip and fall.

Meteorologist, Frank P. Lombardo, testified at a deposition that whatever ice was present in the lot was the direct result of precipitation, which had fallen during the previous day and night, followed by the rapid decline in temperature and deep freeze before daybreak on March 7, 2003.

After the conclusion of discovery, defendants moved for summary judgment. The court granted defendants' motions, determining that both defendants were protected from liability by the common-law immunity ...


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