February 18, 2011
DARLENE WADE, PLAINTIFF-APPELLANT,
TOWN OF MOUNT OLIVE, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2699-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges Kestin and Newman.
Plaintiff, Darlene Wade, appeals from a summary judgment dismissal of her complaint pleading a claim against defendant, Town of Mount Olive, for injuries sustained when she slipped and fell on ice that had not been cleared from a public roadway in the municipality. She has contended throughout that defendant's omission to make any remedial effort to rid the street of a dangerous snow and ice condition despite notice given could be seen as palpably unreasonable, see N.J.S.A. 59:4-2, insulating her claim from dismissal at the summary judgment stage by reason of the fact issue presented.
Defendant has taken the position that it is insulated from liability by immunities conferred under common law and by the Tort Claims Act (TCA), N.J.S.A. 59:4-7, in respect of injuries caused solely by weather conditions; and also under the more general discretionary decision immunity of the TCA, N.J.S.A. 59:2-3. On these bases, defendant moved for summary judgment.
Expressly eschewing reliance on the general immunity of N.J.S.A. 59:2-3, Judge David Rand rendered an oral decision expressing his reasons for granting defendant's summary judgment motion and dismissing the complaint. He began by positing the requirement of Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995), that, on summary judgment motions, all reasonable inferences of factual dispute are to be resolved against the movant. He also accepted the contention that the Town had engaged in its customary snow plowing and clearing activities following a snowfall a week or more before plaintiff's slip and fall incident.
Referring to an unreported Appellate Division opinion that outlined the rationales of Miehl v. Darpino, 53 N.J. 49 (1968), and Rochinski v. Department of Transportation, 110 N.J. 399 (1988), Judge Rand concluded, inter alia, that the common law weather immunity, as well as the weather immunity of the TCA, applied to insulate defendant from liability. He noted that "common law immunity is afforded to all public entities from the negligence in the removal of snow, except in circumstances where the activit[y] of removal itself creates the hazard which results . . . ." Because no expert testimony had been proffered, Judge Rand rejected an alternative theory of liability advanced by plaintiff that the common law weather immunity could not apply because drainage problems had caused water to back up and turn to ice. He also determined that no genuine question of palpable unreasonableness in defendant's conduct had been presented.
We are in substantial agreement with the trial court's reasoning regarding the application of the common law and TCA weather immunities. On those bases alone, we affirm.
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