September 19, 2011
DIANE COEHLO, BY HER GUARDIAN AD LITEM MARIA MANAN, PLAINTIFF-APPELLANT,
NEWARK BOARD OF EDUCATION, AND BASSO F. JR. RUBBISH REMOVAL, INC., DEFENDANTS-RESPONDENTS, AND CITY OF NEWARK, DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9758-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued January 13, 2011
Before Judges Fuentes, Gilroy and Nugent.
Plaintiff Diane Coehlo was a student at the Ann Street School, one of eighty educational facilities operated by the defendant Newark Public Schools.*fn1 Defendant Basso Rubbish Removal, Inc. (Basso) was the company retained by the Newark Public Schools to remove snow and ice from all of its properties, including the playground of the Ann Street School.
On March 8, 2007, plaintiff slipped and fell on snow and ice in the playground of the Ann Street School, and sued defendants for injuries allegedly sustained as a result of this fall. The trial court granted the Newark Public Schools' summary judgment motion and dismissed plaintiff's claims based on the common law immunity conferred upon public entities in connection with snow removal activities. The court also dismissed plaintiff's claims against Basso because the record showed Basso complied with all of its contractual obligations.
Plaintiff now appeals, arguing the trial court erred in not applying the exception to common law immunity to the Newark Public Schools under the principles articulated by the Court in Bligen v. Jersey City Hous. Auth., 131 N.J. 124 (1993). Plaintiff also argues the court improperly dismissed her negligent supervision claims against the Newark Public Schools. With respect to Basso, plaintiff argues the court misconstrued the contract between Basso and the Newark Public Schools, thereby absolving Basso of its duty to maintain the playground free from snow and ice on the day of the accident.
We reject these arguments and affirm. Because the court decided these matters in the context of defendants' motions for summary judgment, we will review all of the salient facts in the light most favorable to plaintiff, giving her the benefit of all of the reasonable inferences that may be drawn from the evidence presented. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).
Plaintiff was twelve years old when she fell in the playground of the Ann Street School while waiting to enter the classroom building at the start of the school day. She fractured her knee and had to undergo surgery to repair it. At the time of the accident, plaintiff and her fellow students had been directed by school officials to wait in the playground before entering the building. There was a staff member in the playground supervising the children as they assembled according to class assignment. It had snowed both the night before and the day of the accident. There were approximately two inches of snow on the ground when plaintiff fell.
Under the contract with the Newark Public Schools, Basso is contractually obligated to remove snow and ice and apply deicing material as needed, based on the following protocol:
The Director of Facilities Support shall be responsible for utilizing the National Weather Service's most recent report to determine when a relative snow fall in the Newark area reaches the point of one (1) inch or more. The level of one (1) inch will be the point at which the Director of Facilities Support will notify the Contractor(s) to commence operations, if deemed necessary by the Director. The Contractor(s) shall be prepared to deploy at the one (1) inch level of snowfall, if deemed necessary by the Director, once snowfall begins. Contractor(s) may move from school to school within the assigned ward based upon their own work schedule.
Upon completion of each school/location the Contractor shall be required to notify the Director of Facilities Support and/or the NPS [Newark Public Schools] Designee(s). Inspection(s) will be conducted by each NPS Designee once the Contractor has concluded each snow service, the Contractor will perform any and all other contractual services required in accordance with the Director's and/or NPS Designee's request.
The Ann Street School Custodian Log indicated that Basso performed snow removal services on February 26, 2007. Records show that the Newark Public Schools paid Basso for plowing and salting in the East/Central and North Wards on February 26, 2007. The Ann Street School is located in the East Ward. There is no record showing that the school district requested Basso to perform any services beyond February 26, 2007.
On this record, defendants moved for summary judgment. Citing Miehl v. Darpino, 53 N.J. 49, 54 (1968), the Newark Public Schools argued it was entitled to the long-established common law immunity conferred upon public entities in connection with snow removal activities. This immunity remained viable even after the passage of Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Rochinsky v. State Dep't of Transp., 110 N.J. 399, 414 (1988).
Plaintiff urged the court to apply the holding in Bligen, in which our Supreme Court refused to afford common law snow-removal immunity to the defendant public housing authority. Bligen, supra, 131 N.J. at 136. In Bligen, the Court distinguished between those public entities responsible for the removal of snow from "a network of roadways," and those, like the defendant public housing authority, whose responsibility was limited to removing snow from a finite area involving driveways and parking lots. Id. at 133 -134. Plaintiff argued defendant Newark Public Schools' responsibility here was similar to the housing authority defendant in Bligen, because the Ann Street School's playground was a finite area, easily capable of being kept free from snow and ice.
Relying on Sykes v. Rutgers, State University of New Jersey, 308 N.J. Super. 265, 269-70 (App. Div. 1998) (upholding the application of immunity to dismiss a suit brought by a student to recover damages for injuries sustained when she slipped on ice and fell in the parking lot adjacent to her dormitory at Rutgers University), the Newark Public Schools urged the court to find the holding in Bligen inapplicable.
Judge Claude M. Coleman rejected plaintiff's argument, memorializing his findings of facts and conclusions of law in a letter opinion dated January 22, 2010. We affirm substantially for the reasons expressed by Judge Coleman.
Plaintiff's narrowed view, limiting the Newark Public Schools' snow-removal responsibility to the finite area used as a playground by the Ann Street School, was directly rejected by Sykes:
Sykes argues that while the total area under Rutgers['s] control may be larger than that of the area controlled by the housing authority in Bligen, the "internal parking lot" in which she fell is analogous to Bligen because it is a "finite, bounded area" from which to remove snow. We disagree. To us, there is nothing in Bligen to suggest that the Supreme Court intended its "finite, bounded area" characterization of the seven-acre housing authority there to allow a slip and fall plaintiff to fractionalize a 1500 acre college campus. Sykes' argument that the scope and size of Rutgers'[s] Busch Campus can be ignored by focusing only on the part of the campus "dedicated to student housing" would enable slip and fall plaintiffs to effectively dissect any public entity into its constituent "finite, bounded areas" for purposes of avoiding common law snow-removal immunity. This would, in effect, destroy the common law immunity which has protected public entities against liability for their snow-removal activities for over a quarter of a century. [Sykes, supra, 308 N.J. Super. at 268 -269.]
As Judge Coleman explained:
For purposes of its analysis, the court looks to Newark Public Schools in the aggregate, the same as Defendant. As the Court reasoned in Sykes, to do otherwise would allow slip and fall plaintiffs to effectively dissect the Board of Education (compare Rutgers) into constituent "finite bounded areas for purposes of avoiding common law snow-removal immunity." The Newark Board of Education is responsible for the clearing of ice and snow from not just the Ann Street School, but all eighty (80) public schools, which border many streets and sidewalks.
With respect to Basso, its contractual responsibilities were to respond to a specific request for snow removal from a designated representative of the Newark Public Schools. Here, the record shows that Basso responded on February 26, 2007. Plaintiff has not come forward with any evidence showing that Basso received a request to clear snow either the night before or the day of the accident.
"In reviewing an order granting summary judgment, [an appellate] court employs the same standard of review as the trial court[.]" Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009). That standard is "whether there was a genuine issue of material fact and, if there was not, it then decides whether the trial judge's ruling on the law was correct." Walker v. Alt. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987). We discern no legal basis to disturb Judge Coleman's well-reasoned analysis and ultimate legal conclusions.
On appeal, plaintiff also argues that the trial court's award of summary judgment to defendant, Newark Public Schools, was inappropriate because the court only addressed the immunity issue and did not speak to plaintiff's separate claim of negligent supervision. We hold plaintiff did not adequately plead this theory, and so is precluded from raising this argument on appeal.
New Jersey is a notice-pleading state, meaning that only a short statement of the claim need be pleaded. Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 56 (App. Div. 1997). Additionally, "all pleadings shall be liberally construed in the interest of justice." Rule 4:5-7. It is still necessary, however, for the pleadings to "fairly apprise the adverse party of the claims and issues to be raised at trial." Spring Motors Distribs., Inc. v. Ford Motor Co., 191 N.J. Super. 22, 29 (App. Div. 1983), aff'd in part and rev'd in part on other grounds, 98 N.J. 555 (1985). Entirely new causes of action that were not litigated below will not be considered on appeal. State v. Robinson, 200 N.J. 1, 20-22 (2009).
Plaintiff failed to assert the claim of negligent supervision in either her complaint, or in her opposition brief at the summary judgment stage. Paragraph four of the complaint's first count speaks only of the defendant "negligently . . . supervising the aforesaid premises." (emphasis added). Nowhere in the complaint does plaintiff mention defendant's negligent supervision of the children. The complaint, therefore, can only support a hazardous condition allegation, and not a negligent supervision cause of action. Plaintiff only discusses supervision in her motion papers within the context of her in loco parentis argument for immunity, stating that defendant "compelled" plaintiff to wait on the playground, thereby establishing a "special relationship" under Bligen.
Finally, although the theory of negligent supervision was raised at oral argument on defendants' motions for summary judgment, this theory was first mentioned by defense counsel, not plaintiff's counsel. When plaintiff's counsel finally discussed the negligent supervision claim, he did so only in a cursory manner. Raising this issue for the first time at oral argument on the summary judgment motion did not "fairly apprise" defendants that this cause of action was going to be litigated.