Township Found Not Liable For Fall on Residential Driveway Apron Due to Snow Removal Immunity

By: Betsy G. Ramos

Plaintiff Rosa Nappi slipped and fell outside the defendant Gregory Kohl’s residence on his driveway apron. She sued Kohl and the Town of Secaucus, where the Kohl property was located, for her personal injuries. In Nappi v. Town of Secaucus, 2015 N.J. Super. Unpub. LEXIS 64 (App. Div. January 12, 2015), the plaintiff claimed that both the homeowner Kohl and the Town should be liable for her injuries. The issue on appeal for the Town was whether it was entitled to snow removal immunity and whether it could be liable for a driveway that it allegedly owned or controlled.

It was undisputed that the Town plowed the snow and that it inadvertently plowed the snow into Kohl’s driveway apron. The Town’s unofficial snow removal policy was to avoid plowing snow onto sidewalks and driveway aprons but the Town admitted that there have been incidents where snow from plows might have been accidentally pushed onto sidewalks and driveway aprons. The Town administrator pointed out, that in an urban environment, sometimes this plowing is an unfortunate consequence.

The plaintiff also retained an engineering expert who opined that the driveway’s apron was a 26% slope, which is greater than the 12 ½% slope permitted by New Jersey’s building code. Both defendants denied constructing the driveway and it was unknown when it was constructed or what standards would have been in effect at that time.

The Town was granted summary judgment based upon the well recognized common law snow removal immunity enunciated in the case of Miehl v. Darpino, 53 N.J. 49 (1968). The plaintiff appealed, claiming that the Town was not entitled to this immunity and it should be liable because it owned or controlled the driveway apron.

The Appellate Division found that the trial court properly granted the Town summary judgment based upon snow removal immunity. This immunity was not abrogated by the Tort Claims Act.

There is an exception to the application of this immunity if the public entity’s snow removal activities might result in hazardous conditions different in character from the dangers ordinarily expected from the snowstorm. The creation of such conditions would necessarily involve palpably unreasonable conduct by a public entity that was separate and distinct from its snow removal functions.

The appeals court agreed with the trial court that the Town’s conduct in plowing the snow onto the driveway apron while clearing the street was not of such extreme or different in character from dangers ordinarily expected from a snow storm or palpably unreasonable conduct. Having snow end up on driveways and sidewalks is an unavoidable consequence of plowing snow. Further, the Town’s ordinance requiring homeowners to clear snow from walkways and driveways abutting their property also indicates that the Town took additional steps to mitigate the dangers from snowfall and snow removal.

The Appellate Division also found the plaintiff’s argument unpersuasive that the Town should be liable because it owned or controlled the driveway. There were no facts that the Town constructed the driveway apron or that it had actual or constructive notice of the purported improper slope of the apron.

Thus, the appeals court found that summary judgment was properly granted to the Town.