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Diane Coehlo, By Her Guardian v. Newark Board of Education

September 19, 2011

DIANE COEHLO, BY HER GUARDIAN AD LITEM MARIA MANAN, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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