Paternoster v. New Jersey Dept. of Transp.

• Decision Date: 20 June 1983
• Citation: 461 A.2d 759,190 N.J.Super. 11
• Parties: Josephine PATERNOSTER, individually and as administratrix ad prosequendum of the Estate of Alexander Paternoster, deceased; James Hughes and Elizabeth Hughes, individually and as parents and guardians of Arthur Hughes, Plaintiffs-Appellants, v. NEW JERSEY DEPARTMENT OF TRANSPORTATION, Defendant-Respondent-Third-party Plaintiff, County of Ocean, Defendant-Respondent, Township of Dover, Defendant-Third-party Plaintiff, v. Robert AMBROSE and Estate of Marlene Williams, Third-party Defendants. Robert WILLIAMS, as administrator ad prosequendum for the heirs-at-law of Marlene Williams, deceased, and as administrator of the Estate of Marlene Williams, deceased, Plaintiff-Appellant, v. NEW JERSEY DEPARTMENT OF TRANSPORTATION, Defendant-Respondent-Third-party Plaintiff, County of Ocean, Defendant, Township of Dover, Defendant-third-party Plaintiff, v. James HUGHES, Estate of Alexander Paternoster, and Robert Ambrose, Third-party Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 11

190 N.J.Super. 11

461 A.2d 759

Josephine PATERNOSTER, individually and as administratrix ad

prosequendum of the Estate of Alexander Paternoster, deceased; James Hughes and Elizabeth Hughes, individually and as parents and guardians of Arthur Hughes, Plaintiffs-Appellants, v. NEW JERSEY DEPARTMENT OF TRANSPORTATION, Defendant-Respondent-Third-party Plaintiff, County of Ocean, Defendant-Respondent, Township of Dover, Defendant-Third-party Plaintiff, v. Robert AMBROSE and Estate of Marlene Williams, Third-party

Defendants.

Robert WILLIAMS, as administrator ad prosequendum for the

heirs-at-law of Marlene Williams, deceased, and as

administrator of the Estate of Marlene

Williams, deceased, Plaintiff-Appellant, v. NEW JERSEY DEPARTMENT OF TRANSPORTATION, Defendant-Respondent-Third-party Plaintiff, County of Ocean, Defendant, Township of Dover, Defendant-third-party Plaintiff, v. James HUGHES, Estate of Alexander Paternoster, and Robert

Ambrose, Third-party Defendants.

Superior Court of New Jersey,

Appellate Division.

Argued May 23, 1983.

Decided June 20, 1983.

Harold N. Hensel, Toms River, for plaintiff-appellant Paternoster (Carluccio & Liston, Toms River, attorneys; Daniel J. Carluccio, Toms River, of counsel); William V. Kelly, Brick Town, for plaintiff-appellant Williams (Starkey, Kelly, Cunningham, Blaney & White, Brick Town, attorneys; Harold N. Hensel, on the joint brief).

Benjamin Clarke, Deputy Atty. Gen., for defendant-respondent-third-party plaintiff. State of New Jersey (Irwin I. Kimmelman, Atty. Gen. of New Jersey, attorney; James J. Ciancia Asst. Atty. Gen., of counsel; Benjamin Clarke, on the brief).

Thomas F. Kelaher, Toms River, for defendant-respondent County of Ocean (Gelzer & Kelaher, Toms River, attorneys; J. Michael Hartnett, Toms River, on the brief).

Dominic Ravaschiere, Toms River, for defendant-third-party plaintiff Tp. of Dover (Lomell, Muccifori, Adler, Ravaschiere & Amabile, Toms River, attorneys; Nancy C. Ferro, Ridgewood, on the brief).

Before Judges BISCHOFF, J.H. COLEMAN and GAULKIN.

The opinion of the court was delivered by

BISCHOFF, P.J.A.D.

Plaintiffs sued defendant public entities for damages resulting from a fatal automobile collision allegedly caused by high piles of snow which obstructed the motorists' view of the road at the intersection. The trial judge granted defendants' motions for summary judgment ruling that they enjoyed "a broad blanket immunity" for snow-removal activities.

The record before the trial judge on the summary judgment motions disclosed the following facts which were accepted as true.

On February 11, 1978, in the morning, Alexander Paternoster was driving his car on Route 70 and his wife, Josephine Paternoster, was a passenger in it. They were on their way from their home in Bricktown to Philadelphia; such was their weekly custom. At the same time James Hughes was driving his car east on Route 70 on his way to Bricktown. His son and Bill Fern were in the car as passengers. He was approaching the intersection of Massachusetts Avenue and Route 70 in Dover Township, Ocean County. Marlene Williams at the same time was operating her car on Massachusetts Avenue, turning onto Route 70 en route to her home. A multi-vehicle collision occurred with resulting personal injuries and two fatalities. Marlene Williams explained that she was unable to see at the intersection because of the large snow pile on her left, blocking her vision. The circumstances resulting in the placement of the snow pile are relevant and material to this appeal.

The State was responsible for the maintenance of Route 70 at the location of the accident. Testimony of John McKelvey, a maintenance foreman for the Department of Transportation since 1963, indicated that he was alerted on February 5, 1978 of an upcoming snow storm. It snowed all day February 6th with flurries continuing on February 7. Total accumulation in the area of the accident was 15 to 20 inches.

The State was responsible for snow removal on Route 70 east and west of Massachusetts Avenue. The County was responsible for snow removal on Massachusetts Avenue north and south of Route 70. The state trucks started working on snow removal about 1:30 a.m. on February 6 and continued until 4 p.m. on that date. The State had hired independent contractors to assist in snow removal. Their work was terminated about noon on February 7. While the contractors were plowing, state vehicles were cleaning ramps and jughandles. McKelvey checked the intersection in question before the accident occurred. On February 10 he checked the view motorists would have at the intersection by backing up his truck on Massachusetts Avenue to determine how well he could see. McKelvey realized that someone unfamiliar with the intersection would have to risk venturing into the intersection in order to make appropriate observations for traffic conditions on Route 70. This was a bad intersection even without snow and McKelvey knew that people frequently entered the intersection without stopping at the stop sign. After lunch he instructed his crew to reduce the snow piles; they did so. He rechecked the view and was satisfied that the stop signs were clearly visible and the intersection safe.

That same day at 3:10 p.m. Dover Township Police called in a request for the State to further reduce the snow piles at the intersection. They thought the piles were still unsafe. McKelvey responded and returned to the intersection. He then and there supervised additional clearing of snow and "took down" the snow piles still further.

A consulting engineer, after considering a survey of the intersection, photographs of the snow piles, depositions and viewing the intersection, expressed the opinion that the high piles of snow removed from the highway seriously impeded the view of operators of vehicles approaching this intersection from either direction along Route 70.

Two law suits were instituted against the opposing drivers, the State of New Jersey, the County of Ocean and the Township of Dover. The suits were consolidated; the State and the County moved for summary judgment. The trial judge ruled that he was "satisfied that the common law rule with respect to snow removal granting a broad blanket immunity was well established prior to the adoption of the Tort Claims Act and was not modified by the act." He granted summary judgment on behalf of the State and the County. And while the Township had not so moved, he dismissed the suit against the Township without prejudice to reinstatement should the Appellate Division reverse the summary judgments entered for defendants State and County.

There is nothing submitted to us to suggest that the suits against the drivers have been settled or dismissed and we assume they are still pending. It is therefore clear that the judgments under review are not final judgments (R. 2:4-1) and are therefore only appealable with leave granted. (R. 2:2-4). Plaintiffs did not seek leave and we could dismiss the appeal. Frantzen v. Howard, 132 N.J.Super. 226, 227-228, 333 A.2d 289 (App.Div.1975). With a cautionary note that such conduct will not be condoned in the future, we sua sponte grant leave to appeal nunc pro tunc, R. 2:4-4(b)(2), and proceed to a consideration of the legal issues raised.

Prior to the enactment of the Tort Claims Act, N.J.S.A. 59:1-1 et seq., the Supreme Court decided the case of Miehl v. Darpino, 53 N.J. 49, 247 A.2d 878 (1968), which presented the following analogous factual situation. In plowing the street, the City of Hammonton created snow piles two to three feet high on both sides of the street near an intersection. The piles were partly on the sidewalk and partly in the street itself. Plaintiff was attempting to cross the street and passed from the sidewalk through a narrow path in the pile, then stood on the side of the roadway waiting for an opportunity to cross safely. A car turning at the intersection veered toward him. Plaintiff tried to escape but could not scale the icy snow pile. Trapped between the car and the pile, he was struck.

The Supreme Court rejected plaintiff's argument that the city should be liable "when the hazard arising from a natural accumulation of snow is increased through the introduction of a new element of danger in the street snow removal." Id. at 52, 247 A.2d 878. The court stated its reasons as follows:

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 wellnigh 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...