Manca v. Borough of Hopatcong, In Sussex County

• Decision Date: 10 March 1978
• Citation: 157 N.J.Super. 67,384 A.2d 543
• Parties: Mary MANCA and Michael J. Manca, Sr., her husband, Plaintiffs-Appellants, v. BOROUGH OF HOPATCONG, IN SUSSEX COUNTY, a Municipal Corporation, and County of Sussex in the State of New Jersey, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 67

157 N.J.Super. 67

384 A.2d 543

Mary MANCA and Michael J. Manca, Sr., her husband Plaintiffs-Appellants, v. BOROUGH OF HOPATCONG, IN SUSSEX COUNTY, a Municipal Corporation, and County of Sussex in the State of New Jersey, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Feb. 28, 1978.

Decided March 10, 1978.

Leonard Adler, Englewood, for plaintiffs-appellants.

Richard L. Wade, Morristown, for respondent Borough of Hopatcong.

Robert T. Morgenstern, Newton, for respondent County of Sussex (Dolan & Dolan, Newton, attorneys).

Before Judges HALPERN, LARNER and KING.

The opinion of the court was delivered by

LARNER, J. A. D.

Plaintiffs appeal from summary judgments entered in favor of both defendants. The propriety of this determination rests upon the construction of immunity provisions of the New Jersey Tort Claims Act (N.J.S.A 59:1-1 et seq.) and their application to the facts developed in the proofs submitted in conjunction with the motions.

Preliminarily we note that the motions came on for oral argument on January 13, 1977 and were continued at the request of plaintiffs to March 18 to permit the submission of appropriate affidavits containing facts germane to the applicable legal issues. Plaintiffs thus had an adequate opportunity to present the factual basis for the cause of action alleged by them, and in fact did so by the presentation of an affidavit of an investigator referring to an interview with a police officer and the police report relating to the accident in question. This documentation sufficiently established the operative facts of plaintiffs' case for decision of the motion. Plaintiffs' suggestion that additional discovery should have been permitted without pointing to any new significant facts which might be developed by such discovery, is manifestly without merit. The trial judge properly accorded to plaintiffs the most favorable inferences from the proofs and made his legal determination on that premise.

We are satisfied, on the assumption of the truth of plaintiffs' factual allegations and the most favorable inferences therefrom, that the issue is purely a legal one and that the summary judgments are justified.

Plaintiff Mary Manca was operating an automobile on Maxim Drive, a county road, in the Borough of Hopatcong on January 14, 1975 at about 1 P.M. She lost control of the vehicle when the right wheels became caught in the ice and snow on the shoulder of the road, causing her to run off the road over an embankment and into several trees.

The gravamen of plaintiffs' complaint against the County of Sussex is that it was negligent in its snow removal, whereby snow banks were created on the shoulder, thereby narrowing the passable road width and resulting in icy ruts, rendering it hazardous for vehicles. As to the Borough of Hopatcong, plaintiffs rested liability on the fact that a prior accident had taken place on the same road, and that the municipality failed to do anything to eliminate the hazard after having actual and constructive notice of the same.

It is undisputed that on January 13 a snowstorm in the area left an accumulation of five to six inches of snow in the borough and that the county commenced plowing of all county roads around noontime and completed the operation by midnight of that date. On the morning of January 14 the weather was clear with the temperature dropping to 20o . In addition to snow removal the county also sanded some of the roads, including Maxim Road.

The immunity from liability for the consequences of allegedly negligent snow removal by a governmental entity was set to rest by the Supreme Court in Miehl v. Darpino, 53 N.J. 49, 247 A.2d 878 (1968), where a pedestrian was injured as a result of the creation of a pile of snow in connection with snow removal performed by representatives of the municipality. A jury trial resulted in a judgment against the municipality, which was affirmed by the Appellate Division on the thesis that immunity did not extend to active wrongdoing relating to a method of snow removal which created a hazard for the traveling public. 99 N.J.Super. 1, 238 A.2d 203 (1968). The Supreme Court reversed and directed the entry of judgment for the municipality. Justice Haneman, in an opinion for a unanimous court, clearly sustained municipal immunity as a matter of law in snow removal cases in the following language:

Snow is a common enemy interfering with normal pedestrian and vehicular traffic and on occasion results in a complete paralysis thereof. Drastically curtailing commerce and industry, it also endangers the general public safety as well, since police, fire, ambulance and medical services are unable to function efficiently throughout the entire community. The need for snow removal becomes imperative, and the municipality although not duty bound to so act, is under great pressure to exercise its governmental function and alleviate the condition. The cost of snow removal even to a limited extent is great.

Frequently, the area contiguous to plowed streets, including private driveways and sidewalks, is encumbered by additional snow through street plowing. To accede to plaintiff's thesis would be to require a municipality to completely remove all snow and ice to in effect "broom sweep" all the traveled portion of the streets, driveways and sidewalks where natural snowfall has been disturbed by any removal of street snow. Only in this manner could a municipality be certain that no accident could occur from the creation of a "new element of danger." Such a requirement would impose upon the municipalities of this state a duty not only impractical but also well-nigh impossible of fulfillment. The high cost of such an undertaking could make the expense of any extensive program of snow removal prohibitive and could result in no program or in an inadequate partial program. Patently, some cleaning of snow is better than none. The 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 danger of accident is better than none.

The unusual 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. To require the individual members of the public to assume the relatively mild additional danger presented by accumulated piles of snow resulting from street snow removal is a minor sacrifice to exact when the alternative could be municipal failure to eliminate the far greater danger caused by permitting snow to remain as deposited by natural forces. The public benefit arising from snow removal far outweighs any slight, private detriment which could accompany such a municipal act. (53 N.J. at 53-54, 247 A.2d at 880.)

See also, Amelchenko v. Freehold, 42 N.J. 541, 549-551, 201 A.2d 796 (1964); accord, Hoy v. Capelli, 48 N.J. 81, 87-91, 222 A.2d 649 (1966); Visidor Corp. v. Cliffside Park, 48 N.J. 214, 220-221, 225 A.2d 905 (1966), cert. den. 386 U.S. 972, 87 S.Ct. 1166, 18 L.Ed.2d 132 (1967).

The public policy rationale implicit in the foregoing cases was codified by the Legislature when it adopted the Tort Claims Act. N.J.S.A. 59:2-3, entitled "Discretionary Activities", provides:

a. A public entity is not liable for an injury resulting from the exercise of judgment or...