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Elizabeth Tymczyszyn v. Columbus Gardens

September 30, 2011

ELIZABETH TYMCZYSZYN, PLAINTIFF-APPELLANT,
v.
COLUMBUS GARDENS, HOBOKEN HOUSING AUTHORITY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2245-08.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 4, 2010 -

Before Judges Fuentes, Gilroy and Nugent.

The opinion of the court was delivered by FUENTES, J.A.D.

Plaintiff Elizabeth Tymczyszyn slipped on ice and fell on the sidewalk abutting Columbus Gardens, a multi-unit residential property owned and operated by defendant Hoboken Housing Authority. Plaintiff sued defendant to recover damages for injuries she sustained as a result of the fall. The trial court granted defendant's summary judgment motion based on the immunity conferred upon public entities under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Specifically, the court found plaintiff did not establish that defendant created the dangerous condition that caused her to fall, N.J.S.A. 59:4-2(a), or had actual or constructive notice of the condition prior to the accident, N.J.S.A. 59:4-2(b). The court also found the actions taken by defendant in connection with the removal of ice and snow from the sidewalk were not "palpably unreasonable." Ibid.

Plaintiff now appeals, arguing the court erred in granting defendant's summary judgment motion because she presented sufficient evidence to create a triable question of fact as to each of these key determinations. Defendant not only argues the trial court correctly decided these issues as a matter of law, but maintains it is also immune from liability under the immunity conferred by the common law for snow removal activities and the weather-immunity provision in N.J.S.A. 59:4-7.*fn1

After reviewing the record before us and considering all of the salient facts in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c), we reverse. Plaintiff presented sufficient evidence from which a jury could find that the manner in which defendant removed snow and ice from the area in question created the dangerous condition that caused her injury. Alternatively, a jury could find defendant was constructively on notice of this dangerous condition. Under either scenario, there is sufficient evidence from which a jury could find that defendant's failure to avoid this dangerous condition was palpably unreasonable. Finally, we reject defendant's argument based on the common law immunity for snow removal activities and the weather-immunity provision in N.J.S.A. 59:4-7.

We gather the following facts from the record developed before the trial court.

I

On February 21, 2007, at approximately 8:00 a.m., plaintiff was walking to the bus stop on her way to work. When she reached the sidewalk abutting defendant's property, her right foot slipped on a patch of ice, causing her to fall to the ground. Plaintiff estimated the icy surface "went at least halfway, if not like two-thirds across" the sidewalk.

Hoboken Police Officer Keith Rotondi responded to the scene of the accident and authored a report documenting the event. He described the area where plaintiff fell as "the south east corner of 9th and Jefferson Street approximately 10ft. from the curb." He noted "a pathway that was cleared of snow that had accumulated the day before, but due to warm temperatures over night, and then . . . becoming cold again, a thin sheet of ice was formed."

According to CompuWeather*fn2 reports, snow fell on February 14, 2007 (one week before the accident), and left an accumulation of 3.1 inches. Two inches of snow were on the ground on February 16, 2007, and February 17, 2007, and one inch of snow fell on each of the three days before the accident. Plaintiff's meteorological report indicated, within a reasonable degree of meteorological certainty, that on the day and time of the accident there was an approximate trace of less than half an inch of "snow and ice cover [ ] present on exposed, untreated, undisturbed outdoor surfaces in the vicinity of [defendant's property.]" Daily temperature readings from February 15 through the day before the accident fluctuated from below freezing levels to above freezing levels. The minimum ...


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