Municipality Found Not Liable for Fall on Boardwalk Based upon Snow Removal Immunity

By Betsy G. Ramos, Esq.

Plaintiff Kimberly Walter was attending a fireworks display on New Year’s Eve when she slipped and fell on the Ocean City boardwalk. Although it had not snowed that day, it had snowed between 5 to 10 inches a few days earlier. City employees cleared a pathway on the boardwalk for the festivities. While walking toward the music pier, the plaintiff fell, fracturing both wrists. In Walter v. City of Ocean City, 2016 N.J. Super. Unpub. LEXIS 613 (App. Div. March 22, 2016), the plaintiff argued that the common law snow removal immunity afforded to the City should not bar her claim and appealed the summary judgment order granted to the defendant City.

The Appellate Division noted that municipalities have no duty to clear snow and ice from the streets. Often, just attempting to clear snow and ice creates new perils in the form of obstructive snow piles and melting water that refreeze on walkways.

The Court explained that the common law doctrine of snow removal was “born out of a recognition that complete ‘broom-swept’ snow clearance is unrealistic, and even negligent snow removal is better than no snow removal.” Further, this immunity recognizes that municipalities face a difficult task of prioritization following a snowfall and protects them from the “limitless liability” that could result if they could be liable to every person injured from ice and snow on a municipality’s streets and highways.

The common law snow removal immunity has traditionally applied to plowed streets, driveways, and sidewalks. Plaintiff contended that it should not apply to a boardwalk which is fundamentally different from a sidewalk or street because there is no emergency traffic and shops are mostly closed during the winter. Further, it is not contiguous to the street.

However, the Appellate Division found that the boardwalk is maintained by Ocean City and open to pedestrian traffic year round. Thus, when allocating scarce snow removal resources, Ocean City must necessarily include the boardwalk among the areas it must consider. Thus, it is different from a public housing development (which would not be able to utilize this immunity) because the boardwalk does not represent a discrete area with its own maintenance staff.

Plaintiff also argued that Ocean City’s actions were so egregious that the court should not apply snow removal immunity. The plaintiff contended that Ocean City had notice that many visitors would attend the boardwalk New Year’s Eve and the extra burden of salting and sanding would have been minimal. However, the Appellate Division rejected this argument, finding that such a conclusion would have been contrary to its prior decisions.

As the Supreme Court pointed out in a prior case, “the usual traveling conditions following a snowfall are obvious to the public. Individuals can and should proceed to ambulate on a restricted basis, and if travel is necessary, accept the risks inherent at such a time.”

Accordingly, the Appellate Division rejected the plaintiff’s arguments and upheld the order granting summary judgment to Ocean City, dismissing the case