Public entities enjoy immunities not available to private individuals or businesses with respect to injuries caused by accidents due to snow or ice. The two main immunities would be the weather immunity found in the Tort Claims Act, N.J.S.A. 59:4-7, and the common law snow removal activities immunity. Additionally, in the recent case of Ferranti v. City of Elizabeth, 2019 N.J. Super. Unpub. LEXIS 1172 (App. Div. May 22, 2019), the Appellate Division applied the allocation of resources defense, N.J.S.A. 59:2-3(d), to the plaintiff’s claim against the County of Union for a fall that occurred in the courthouse parking lot due to unshoveled snow.
The weather immunity defense is found in N.J.S.A. 59:4-7. It 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.” Note that this defense is only applicable to injuries that occur on roadways and would not apply to an injury resulting from the use of a sidewalk or parking lot. However, plaintiffs may be able to avoid the application of this defense if they are able to show that there were factors other than simply snow or ice that caused the accident injuring the plaintiff, such as road construction or the condition of a bridge surface.
The common law snow removal activities immunity recognized by the New Jersey Supreme Court in Miehl v. Darpino, 53 N.J. 49 (1968) has been found to have survived the passage of the Tort Claims Act. It is an additional defense available to public entities for snow/ice related injuries. In Miehl, the plaintiff was injured as a result of how the City of Hammonton plowed the snow. The Supreme Court found that the municipality had governmental immunity available for this injury that occurred due its snow removal activities.
More recently, in the Ferranti case, the plaintiff, a judiciary employee, fell while leaving the courthouse, after the court had closed early due to a snow emergency. The County was responsible to clear the snow from its lot and followed a protocol in which the pedestrian areas closest to the entryways are manually cleared first, followed by sidewalks and walkways. The parking area and driveways remain unplowed until no vehicles remained. The plaintiff fell in the driveway, which had not yet been reached by the County workers.
The trial court judge found that the County’s snow removal procedures and priorities were not palpably unreasonable and were the product of discretionary decision making. The County was dismissed out by summary judgment.
The Appellate Division upheld that decision. The Court found that the County’s decision in its methodology of snow clearing was not “palpably unreasonable” under N.J.S.A. 59:4-2. Further, the Court found that the decision “to plow the driveway and parking lot only after shoveling snow from pedestrian areas is patently discretionary, a fixing of priorities circumscribed by a limited budget.” Hence, the Appellate Division held that the allocation of resources immunity defense in N.J.S.A 59:2-3(d) was applicable.
Pursuant to this provision, discretionary activities are immune as follows: “A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable.” In Ferranti, the Court stated that “[t]he [County’s] decision of where to plow first is clearly discretionary and not palpably unreasonable.” Thus, the County was found immune from liability as to the plaintiff’s injuries.
Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.
