Opinion
DOCKET NO. A-2661-13T2
03-04-2015
RICHARD A. KOCH AND COLLEEN KOCH, husband and wife, Plaintiffs-Appellants, v. NEW JERSEY DEPARTMENT OF MILITARY AND VETERANS AFFAIRS, Defendant, and TOWN OF PHILLIPSBURG, and PHILLIPSBURG SCHOOL DISTRICT, Defendants-Respondents.
Scott M. Wilhelm argued the cause for appellants (Winegar, Wilhelm, Glynn & Roemersma, P.C., attorneys; Mr. Wilhelm, of counsel and on the brief; Jennifer L. Toth, on the brief). Ian C. Doris argued the cause for respondent Phillipsburg Board of Education (Keenan & Doris, L.L.C., attorneys; Thomas A. Keenan, of counsel; Bernadette M. Peslak, on the brief). Mark R. Peck argued the cause for respondent Town of Phillipsburg (Florio, Perrucci, Steinhardt & Fader, L.L.C., attorneys; Mr. Peck, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-508-11. Scott M. Wilhelm argued the cause for appellants (Winegar, Wilhelm, Glynn & Roemersma, P.C., attorneys; Mr. Wilhelm, of counsel and on the brief; Jennifer L. Toth, on the brief). Ian C. Doris argued the cause for respondent Phillipsburg Board of Education (Keenan & Doris, L.L.C., attorneys; Thomas A. Keenan, of counsel; Bernadette M. Peslak, on the brief). Mark R. Peck argued the cause for respondent Town of Phillipsburg (Florio, Perrucci, Steinhardt & Fader, L.L.C., attorneys; Mr. Peck, on the brief). PER CURIAM
At all times relevant to this case, plaintiff Richard A. Koch was employed by the State National Guard, a division of the State Department of Military and Veterans Affairs (the Guard). On February 7, 2011, plaintiff drove his personal car to the Phillipsburg Armory, which is located on property owned by the Town of Phillipsburg (Town). Plaintiff claims that as he stepped out of his car in the parking lot, he slipped on "black ice" and fell to the ground injuring himself. The section of the property where plaintiff claims he fell is leased by the Town to the Phillipsburg Board of Education (Board of Education) pursuant to an "Agreement for Inter-Local Services."
Because Colleen Koch's per quod claims are derived from her status as Richard A. Koch's wife, we will refer to "plaintiff" in the singular.
Plaintiff filed this personal injury cause of action initially naming as defendants the Guard, the Town, and the Board of Education, alleging they negligently created a dangerous condition by failing to maintain the parking lot of the property free of snow and ice. Plaintiff's claims against the Guard were dismissed for reasons unrelated to the issues raised in this appeal.
After joinder of issues, the Town and the Board of Education each filed motions for summary judgment arguing they were immune from liability under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3, and the common law immunity for snow related activities. After initially denying both motions, the Law Division granted the motions for reconsideration filed by the Town and the Board of Education and dismissed plaintiff's cause of action with prejudice. The motion judge concluded he had "erred in [his] initial decision" denying defendants' motions for summary judgment. In reaching this conclusion, the judge specifically rejected plaintiff's reliance on Bligen v. Jersey City Housing Authority, 249 N.J. Super. 440 (App. Div. 1991), and found the Town and the Board of Education were both entitled to the common law immunity for snow related activities originally recognized by the Supreme Court in Miehl v. Darpino, 53 N.J. 49, 54 (1968), and reaffirmed in Rochinsky v. State Dep't of Transportation, 110 N.J. 399, 402 (1988), as well as the immunity for weather events in N.J.S.A. 59:4-7, provided by the Legislature as part of the TCA.
Despite the Supreme Court's subsequent decision affirming the appellate division, see Bligen v. Jersey City Housing Authority, 131 N.J. 124 (1993), plaintiff chose to cite the appellate division opinion in support of his position.
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Plaintiff now appeals arguing that the facts of this case fall within the exception to the common law immunity recognized by the Supreme Court in Bligen because the Town and the Board of Education were acting as commercial landlords at the time the accident occurred. Furthermore, because the accident occurred in a parking lot, a limited area capable of being cleared of snow and ice, plaintiff argues it falls outside the immunity provisions provided by the TCA.
We reject these arguments and affirm substantially for the reasons expressed by the Law Division.
I
Summary judgment should be granted only when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We consider the factual record developed before the Law Division in the light most favorable to plaintiff, including any inferences that can be reasonably drawn from such record. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We apply these same standards on appeal and will review the trial court's ultimate judgment against plaintiff de novo because it was based on an interpretation of the law applicable to this case. State ex rel. A.B., 219 N.J. 542, 554-55 (2014).
It is undisputed that the Town owns the property where plaintiff fell. As documented in an Incident Report, Phillipsburg Police Officer Ryan Sokolowski received a call at 5:39 a.m. on February 7, 2011, "to respond to the area of the parking lot at the Phillipsburg Armory on Heckman St. for a report of a male party that had slipped on the ice and fractured his leg." Plaintiff was fifty-seven years old at the time of the accident. According to the deposition testimony he gave in May 2013, plaintiff has worked for the New Jersey National Guard for the past forty-one years. At the time of the accident, plaintiff was reporting to work at an office provided by the Board of Education gratis to the National Guard.
In response to plaintiff's interrogatories, the Board of Education described the arrangement it had with plaintiff's employer with respect to this particular office:
The Phillipsburg Board of Education gratuitously allows the New Jersey Department of Military and Veterans Affairs to use the offices of the leased premises for its own purposes. There is no formal agreement between the Phillipsburg Board of Education and the New Jersey Department of
Military and Veterans Affairs for the use and occupancy of the office space.
The Phillipsburg Board of Education on certain occasions performs snow plowing in the parking lot adjacent to the offices occupied by the New Jersey Department of Military and Veterans Affairs. Snow removal efforts can include salt spreading. The Phillipsburg Board of Education performs these activities after significant snowfall occurs.
The Phillipsburg Board of Education denies that Plaintiff's fall was caused by a hazardous or dangerous condition for which the Phillipsburg Board of Education had actual or constructive notice, or legal responsibility. The Phillipsburg Board of Education contends that if Plaintiff fell as a result of snowfall, ice storm or melting snow creating an ice formation/condition, same are naturally occurring weather conditions for which the Phillipsburg Board of Education is immune from liability pursuant to New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. and or common law.
The Board of Education's access to this property is derived from a written "Agreement for Inter-Local Services" entered into with the Town effective July 1, 2010. Through this agreement, the Town agreed to lease to the Board of Education 11,903 square feet of property owned by the Town located at 441 Heckman Street, "for the purpose of in-door housing of school buses, maintenance personnel and storage[.]" This "Inter-Local Services" agreement also included additional property located at 215 North Main Street (Former Town Garage), consisting of approximately 36,900 square feet, which the Town also leased to the Board of Education.
The Board of Education agreed to pay to the Town a monthly rent of $5,000, and assume responsibility for paying the gas and electricity cost "associated with both referenced properties and to have the utilities placed into the name of the 'Phillipsburg Board of Education.'" Finally, the Agreement obligated the Board of Education to provide the Town "proof of liability insurance in the amount of $1,000,000 Bodily Injury and $1,000,000 Property Damage with the Town being named as an additional insured."
II
Against this factual backdrop, we will now address the public policy that governs our review of the issues involved in this case. As the Legislature has declared:
[W]hile a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be
construed with a view to carry out the above legislative declaration.
[N.J.S.A. 59:1-2]
The weather-immunity provision under the TCA provides: "Neither a public entity nor a public employee is liable for an injury caused solely by the effect on the use of streets and highways of weather conditions." N.J.S.A. 59:4-7. In Bligen v. Jersey City Housing Authority, 131 N.J. 124, 129 (1993), the Court denied the Jersey City Housing Authority immunity under N.J.S.A. 59:4-7 because the accident occurred on the driveway of this public landlord's property. As the Court explained:
The drafters of the Tort Claims Act cautioned us about accepting "novel causes of action." Comment, N.J.S.A. 59:2-1. However, imposing liability on a housing authority that failed to use due care to safeguard its premises is not novel. Rather, it follows the long tradition in the common law of holding municipal landlords responsible for the reasonably-foreseeable consequences of their actions.
[Bligen, supra, 131 N.J. at 134.]
Here, neither the Town nor the Board of Education is in the business of leasing residential or commercial property. The Board of Education's gratuitous arrangement with the Guard permits it to use offices located on property it leases from the Town to house school buses and equipment. The Board of Education's arrangement with the Guard is clearly nothing more than a courtesy accommodation. There are no terms or conditions governing the use of these offices or consideration paid by the user of the space. The Board of Education is not in the business of leasing or even providing free access to property it controls. The Town stands in a similar position.
Plaintiff's attempt to impose liability upon the Board of Education based on the relatively small area occupied by the Guard is equally unavailing. As we made clear in Sykes v. Rutgers, State Univ. of N.J., 308 N.J. Super. 265 (App. Div. 1998), (a case in which a student sued Rutgers University, Busch Campus, to recover damages for injuries she sustained when she slipped and fell on an "accumulation of ice" in her dormitory's parking lot):
The Busch campus consists of over 1500 acres containing classrooms, administration buildings, athletic areas, and an ecological preserve, all of which is intersected by 139 acres of hardscape surface consisting of parking lots, roads and sidewalks. This is quite distinct from the situation in Bligen and apart from her reliance on Bligen, Sykes alludes to no authority establishing the creation of such a relationship in these circumstances.
[Sykes, supra, 308 N.J. Super. at 269.]
The Board of Education's snow removal responsibilities are also not limited to the parking lot where plaintiff fell. As described on its website:
The [Phillipsburg School District] serves [approximately 3500] students from the Town of Phillipsburg and five sending communities at the secondary level . . . Phillipsburg is the largest community in Warren County.
There are four elementary schools, a middle school, high school, alternative learning secondary school and an early childhood center. Administrative offices, the district technology department, and the office of special services are located in the PSD Education Center/Board of Education. The Phillipsburg Early Childhood Learning Center serves Preschool and Kindergarten students.
[http://www.pburgsd.net/domain/3 (last visited Feb. 22, 2015).]
In short, both the Town and the Board of Education are public entities entitled to the immunity from civil liability protection under N.J.S.A. 59:4-7 because they are both responsible for removing snow and ice from large publicly owned and maintained areas of land. For the same reasons, these public entities are also entitled to the immunity for snow removal activities under the common law. Miehl, supra, 5 3 N.J. at 54.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION