Opinion
DOCKET NO. A-4913-14T4
11-30-2016
VICTORIA STUART, Plaintiff-Appellant, v. MAHWAH BOARD OF EDUCATION, and DUTRA EXCAVATING AND SEWER, INC., Defendants-Respondents
Gill & Chamas, LLC, attorneys for appellant (William A. Bock, of counsel and on the briefs). Zirulnik, Sherlock & Demille, attorneys for respondent Mahwah Board of Education (Brian J. Convery, of counsel and on the brief). Michael C. Urciuoli, attorney for respondent Dutra Excavating and Sewer, Inc.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino and Currier. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9484-13. Gill & Chamas, LLC, attorneys for appellant (William A. Bock, of counsel and on the briefs). Zirulnik, Sherlock & Demille, attorneys for respondent Mahwah Board of Education (Brian J. Convery, of counsel and on the brief). Michael C. Urciuoli, attorney for respondent Dutra Excavating and Sewer, Inc. PER CURIAM
Plaintiff Victoria Stuart was injured when she slipped and fell in an icy parking lot. The lot was owned and maintained by defendant Mahwah Board of Education (Board). The Board contracted with defendant Dutra Excavating and Sewer, Inc. (Dutra) to assist with snow removal services. Plaintiff appeals from the May 29, 2015 order granting summary judgment to defendants.
In January 2013, a few days after a snowstorm, plaintiff parked her car in a parking lot owned and maintained by the Board and walked through the lot to the adjacent school to pick up her daughter. Plaintiff stated that as she returned through the lot back to the car, she slipped and fell on black ice.
The Board is a municipal body that manages five public schools in Mahwah Township. It used its own employees for snow and ice removal and it also employed Dutra as an outside contractor. Dutra only provided services if contacted by the Board, which would instruct the contractor on what work to do and when to do such work. Dutra did not perform any de-icing services; the Board through its own personnel provided and spread salt on the parking lots and sidewalks.
Plaintiff fell in a parking lot referred to as the "Center for Food Action" lot because it is on property leased to a private organization of the same name. The lot, however, is owned and maintained by the Board and is used as a parking lot by school employees as well as high school students.
Both defendants moved for summary judgment; the Board argued it was entitled to common law immunities for snow removal activities, and Dutra contended it had no liability to plaintiff as it had performed the snow removal duties as instructed by the Board and it had no de-icing responsibilities. The trial court agreed and granted defendants' motions in a thorough, written decision on May 29, 2015.
We review the grant of summary judgment, as we must, using the same standard as the trial court and viewing the evidence "in the light most favorable to the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "[T]he legal conclusions undergirding the summary judgment motion itself [are reviewed] on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
On appeal, plaintiff mainly relies on Bligen v. Jersey City Housing Authority, 131 N.J. 124, 128 (1993), to support her argument that the Board was acting as a municipal landlord in respect to the parking lot, and, therefore it was not entitled to common law weather immunities. Plaintiff also contends that the Board assumed a duty to warn of the hazardous ice condition when it placed a staff member in the area of the condition to direct traffic during the school dismissal hour. As to Dutra, plaintiff asserts that the contractor had a duty to identify and remediate the icy condition. Finally, plaintiff argues the grant of summary judgment was premature as discovery was ongoing and there were outstanding depositions.
We begin with the arguments presented against the Board. In Miehl v. Darpino, 53 N.J. 49 (1968) the Supreme Court established common law immunity for snow removal activities performed by a public entity. The Court reasoned that "[t]he public is greatly benefited even by snow removal which does not attain the acme of perfection of 'broom swept' streets. Relief from fallen snow which does not eliminate all the danger of accident is better than none." Id. at 54.
The defendant in Bligen, supra, 131 N.J. at 131, sought to invoke that immunity against the claims of the plaintiff who had fallen in the icy driveway outside her apartment building which was owned by defendant. The Court distinguished a public housing authority from a municipality, reasoning that the policy concern that municipalities could face unlimited liability for negligent snow removal in the absence of common law immunity is not present in the case of a public housing authority. Id. at 131. Municipalities are responsible for miles of streets and highways, and are often forced to decide which areas of the city warrant immediate attention. Id. at 131-32. By contrast, a housing authority is responsible for snow removal in a comparatively small and finite area, and as such, may be held liable for negligent snow removal. Id. at 131. Additionally, the Court explained that the common law immunity for snow removal activities traditionally did not apply to public housing authorities because they were considered municipal landlords and deemed to owe the same standard of care to their tenants as did other commercial landlords. Id. at 137-138. Therefore, the Court found the defendant housing authority was not protected by the common law immunity for snow removal. Since the Bligen decision, subsequent courts have refused to extend its narrow holding to public entities other than housing authorities. See O'Connell v. New Jersey Sports and Exposition Auth., 337 N.J. Super. 122, 132-34 (App. Div. 2001) (permitting defendant to invoke the common law immunity for its clearing of seats and steps in a football stadium); Sykes v. Rutgers, State University of New Jersey, 308 N.J. Super. 265, 269 (App. Div. 1998) (declining to classify Rutgers as a municipal landlord and allowing the university to invoke the common law snow removal immunity in a dormitory parking lot); Lathers v. Twp. of W. Windsor, 308 N.J. Super. 301, 305-06 (App. Div. 1998) (refusing to apply Bligen to override common law immunity where there is no landlord-tenant relationship).
Because the Board leased a portion of the parking lot to the Center for Food Action, plaintiff urges us to label the Board a municipal landlord, thus allowing her claims to fit within the narrow Bligen exception. We decline to do so. It is undisputed that the lot was owned and maintained by the Board. Employees of the schools and students used the lot and plaintiff had parked there in order to retrieve her daughter at school. Defendant was not a housing authority; there was no established landlord-tenant relationship between the parties. See Rossi v. Borough of Haddonfield, 297 N.J. Super. 494, 501 (App. Div. 1997). Furthermore, the Board was responsible for more than 179 acres of property; we do not consider this to be a "finite bounded area" comparable to the housing authority complex in Bligen so as to deprive the Board of the protection of the common law snow removal immunities. Sykes, supra, 308 N.J. Super. at 268-69.
Notwithstanding the common law immunity afforded to the Board, plaintiff argues that it nevertheless had a duty to warn her of the icy condition as there was a staff member stationed in the area of the fall to assist with dismissal and direct traffic; therefore, plaintiff contends the Board had actual or constructive notice of the condition, triggering a duty. We find this argument unpersuasive.
In Rochinsky v. N.J. Dep't of Transp., 110 N.J. 399 (1988) the Court found that a public entity's duty to warn of a dangerous condition circumvented the common law immunity only under "extraordinary circumstances" that are "different in character from the dangers ordinarily expected from a snowstorm." Id. at 416. The formation of black ice that can occur after a snowstorm is an ordinary, expected occurrence; one that does not amount to an extraordinary circumstance.
Turning to plaintiff's arguments respecting Dutra's liability, we are satisfied that the trial judge's ruling that Dutra owed no duty to plaintiff was supported by the credible evidence. By contractual agreement, snow removal was only performed by Dutra upon the request and instruction of the Board. As the judge noted:
Plaintiff's action rests on the theory that the parking lot was not properly de-iced; however, the uncontradicted evidence in the summary judgment record establishes Dutra had no duty to lay sand or salt to de-ice the parking lot, nor did Dutra ever undertake to do the same. That responsibility fell squarely with [the Board].
We briefly address plaintiff's contention that the summary judgment motions were premature as "the time for taking depositions had not expired"; specifically, she desired to depose a custodian, teacher and nurse from the school. Depositions were presented from the Board's supervisor of building and grounds as well as the owner of Dutra, each outlining their respective responsibilities regarding the clearing of snow from the parking lot. The issues before us are legal issues; whether the Board is protected under common law immunities for snow removal, and whether Dutra owes plaintiff a duty of care. We are satisfied that the deposition testimony sought by plaintiff from additional witnesses would not have changed the legal conclusions reached by the trial judge and upheld here. See Apfel v. Budd Larner Gross, 324 N.J. Super. 133, 144 (App. Div. 1999). We affirm the order granting summary judgment to defendants.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION