Abolish Absolute Governmental Immunity in Snow and Ice Cases | New Jersey Law Journal

 When Chris Christie became Governor of New jersey, pledging to "turn Trenton upside down" he aimed for the repudiation of the state Supreme Court's dedication to equitable school funding and open housing.  Although he has not achieved that, he has got a Republican majority which has been chipping away at the court's legacy of expansion of tort liability.  The Law Journal Editorial Board is not reconcile dto that path.  Here it urges the court to take a modest step forward to hold liable government enterprises like the state's mass transit operator NJ Transit. - gwc
Abolish Absolute Governmental Immunity in Snow and Ice Cases | New Jersey Law Journal
by the Editorial Board
In the petition for certification now before it in Mann v. New Jersey Transit —a snow and ice case—the New Jersey Supreme Court has an opportunity to answer a question that has long discomfited some judges on the Appellate Division: Should a mass transit operator's Tort Claims Act liability for dangerous conditions of its property be subject to the same duty of care as a public housing authority's?

At common law, the sovereign was immune to suit absent consent. But as government expanded, providing housing and mass transit, pressure grew for government to bear liability comparable to that of private businesses. The 1946 Federal Tort Claims Act was among the first to do so. In the 1968 case Jackson v. Hankinson and Bd. of Ed. of New Shrewsbury, our Supreme Court said:

"And although there has thus far been no express and complete disavowal of active wrongdoing terminology, there has been a shift towards frank recognition that municipal entities, along with all others, should justly be held accountable for injuries resulting from their tortious acts and omissions under ordinary principles of negligence, except, as a matter of policy, in situations involving so-called discretionary determinations and the like."

Later that year, in Miehl v. Darpino, the court refused to extend a cause of action to a snow hazard created by plowing snow into a bank that made it hazardous to cross at an intersection. The municipality's efforts to clear the roads should not create liability where none would exist if they had not acted at all, the court decided. Spurred by the prospect that the court could sweep away governmental immunity, the Legislature in 1972 adopted the Tort Claims Act. Though Title 59 generally embraced the court's call for reform, it codified the Miehl rule, retaining governmental immunity for injuries "caused solely by the effect on the use of streets and highways of weather conditions."

Twenty years later, the court construed the Tort Claims Act in Bligen v. Jersey City Housing Authority (1993). In an opinion by Justice Marie Garibaldi, the court found that neither the Tort Claims Act nor the principle of common law governmental immunity barred imposition of liability upon a public housing authority. The court distinguished the agency's role as property manager of its "internal driveways" from the statute's grant of immunity for snow removal on "streets and highways."

Since then, the Appellate Division has sharply limited Bligen to its facts. Other public entities have been held to be immune in a raft of snow and ice cases, a result often thought to be commanded by Miehl, commonly referred to as the "common law rule". If by that courts mean that Miehl preceded the Tort Claims Act, then the designation is accurate. But if one has in mind a mass transit operator like New Jersey Transit, the common law rule has long been that of Kelly v. Manhattan Ry. Co. (1899), a snow and ice case:

"...[I]n the approaches to the cars, such as platforms, halls, stairways and the like, a less degree of care is required, and for the reason that the consequences of a neglect of the highest skill and care which human foresight can attain to are naturally of a much less serious nature. The rule in such cases is that the carrier is bound simply to exercise ordinary care in view of the dangers to be apprehended."

In the 1998 case Lathers v. Township of West Windsor, which involved a fall on an icy path at a municipal building, the court felt constrained by Bligen and its progeny. But one panel member invited our Supreme Court to "review the existing law, perhaps to declare that sidewalk ice or snow hazards be treated as any other dangerous condition under the Tort Claims Act." The Supreme Court denied certification.

This past December, Judge Jack Sabatino, concurring in the dismissal of yet another snow and ice case—Mann v. New Jersey Transit Corporation—renewed that call. Sabatino pointed out the elementary nature of the negligence claim and the need to treat like cases alike. No substantial basis exists to distinguish New Jersey Transit's 159 stations from the extensive properties of municipal housing authorities. Fear of excessive liability should be tamped down by the requirement of Title 59 that liability for unsafe conditions of public property is to be found only if the public entity's conduct is "palpably unreasonable." Governmental entities also have the benefit of the Brooks v. Odom (1997) rule that "a plaintiff must sustain a permanent loss of the use of a bodily function that is substantial."

The court now has before it a petition for certification. The construction for which Sabatino calls is well within the court's power to develop tort law through statutory interpretation, as it did in Bligen. If the court embraces the recognition of a duty on public mass transit operators to assure safe transit on their properties, the Legislature can study the issue and address it. But our 40 years of experience with the Tort Claims Act shows that the slippery slope arguments that are often raised are no threat here. The massive New York City bus and subway system, for example, has not been reduced to insolvency by the long established duty of ordinary care. In Bethel v. NYCTA (1998) the New York Court of Appeals declared that on or off the rails the Transit Authority has the duty of ordinary care in the management of its hundreds of stations, terminals, fleets of vehicles and rolling stock.

Our Supreme Court long ago recognized the anomaly of governmental immunity for negligent maintenance of facilities. It is time to finally abandon the rule of absolute immunity, which encourages the derisive view that slipshod efforts are "close enough for government work." We think the court should grant the petition and eliminate the anomaly of absolute immunity in snow and ice cases against some but not other public agencies.
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