Molino v. Twp. of S. Orange
| Decision Date | 12 July 2018 |
| Docket Number | DOCKET NO. A-3548-16T2 |
| Parties | MILDRED MOLINO and JOHN DUNN, her husband, per quod, Plaintiffs-Appellants, v. TOWNSHIP OF SOUTH ORANGE; ABC CORP., d/b/a TOWNSHIP OF SOUTH ORANGE; TOWNSHIP OF SOUTH ORANGE VILLAGE; DEF CORP, d/b/a TOWNSHIP OF SOUTH ORANGE VILLAGE; and SOUTH ORANGE PARKING AUTHORITY, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Alvarez and Currier.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7182-14.
Blume, Forte, Fried, Zerres & Molinari, attorneys for appellants (Richard J. Villanova, on the brief).
Piro, Zinna, Cifelli, Paris & Genitempo, LLC, attorneys for respondents (Richard A. Grodeck, of counsel; Kristen Jones, on the brief).
Plaintiff Mildred Molino1 appeals from the April 13, 2017 order granting defendant South Orange Parking Authority's (SOPA) motion for summary judgment. After a review of the contentions in light of the record and applicable principles of law, we affirm.
On December 30, 2012, a day after a snowstorm, plaintiff and her husband were walking in the Township of South Orange (the Township) when she slipped and fell on an icy sidewalk adjacent to a municipal parking lot.
The municipal parking lot is owned by the Township and operated by SOPA. While SOPA operates and maintains the parking lot, it contracts with the Township to provide snow and ice removal of the lot and adjacent areas. It is undisputed that it snowed on December 29, 2012, the day before plaintiff's fall. Records produced by the Township during discovery reveal Township employees plowed, shoveled, and salted the parking lot, sidewalks, and roadways from noon until midnight on December 29, and from eight in the morning until noon on December 30.
Plaintiff filed a complaint against the Township, SOPA, and other defendants, alleging the Township and SOPA failed to properly remove snow and ice causing plaintiff's injury. The Township andSOPA each filed motions for summary judgment, asserting a common law public entity snow and ice removal immunity under Miehl v. Darpino, 53 N.J. 49 (1968). Plaintiff argued in turn that SOPA's operation of a jitney service, which provides transportation for Township residents to the train station, renders it a commercial entity not entitled to public entity immunity.
On July 22, 2016, the court granted the Township's motion but denied SOPA's motion. In a brief oral decision, the judge found "an issue of fact here with regard to . . . the issues involving the jitney and whether in fact they are a commercial enterprise or not." SOPA's motion for reconsideration was denied.
After the parties were assigned to a different judge for trial, they requested the judge consider a "renewed" summary judgment motion on "the issue of whether or not the snow and ice removal immunity applies to the [SOPA]." After oral argument, the judge granted SOPA's renewed motion and found the issue of SOPA running a jitney service for the benefit of the Township's residents bore no relation to whether SOPA was a public entity entitled to immunities. The court reasoned, "the fact that a public entity has surplus funds does not turn it into a for profit entity." The issue to be determined was whether SOPA was acting as a public entity and the judge found that it was. On April 13, 2017, summary judgment was granted to SOPA.
Plaintiff appeals, arguing the court erred in granting summary judgment because SOPA was engaged in a revenue generating commercial activity, and therefore, is not entitled to governmental snow and ice removal immunity. We disagree.
We review orders granting summary judgment de novo, applying the same standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). To defeat summary judgment, the non-moving party must bring forth "evidence that creates a 'genuine issue as to any material fact challenged.'" Brill, 142 N.J. at 529 (quoting R. 4:46-2).
In Miehl v. Darpino, 53 N.J. 49 (1968), our Supreme Court established common law immunity for snow and ice removal activities on streets performed by a public entity. The Court reasoned such immunity was appropriate because Id. at 54.
It is undisputed that the area where plaintiff fell is operated and maintained by SOPA — the public entity charged with operating eleven municipal parking lots and a jitney service, which provides residents transportation to the train station. As a public entity, SOPA would normally enjoy immunity from liability for the injuries plaintiff sustained when she slipped on ice and fell on the sidewalk adjacent to a municipal parking lot. See ibid.
Plaintiff argues, however, that our decisions in Rossi v. Borough of Haddonfield, 297 N.J. Super. 494 (App. Div.), aff'd, 152 N.J. 43 (1997), and O'Connell v. N.J. Sports & Exposition Auth., 337 N.J. Super. 122 (App. Div. 2001), serve to deprive SOPA of the common law immunity because it was engaged in revenue generating commercial activity. We disagree.
In Rossi, the plaintiff...
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