                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3725-16T1

KRISTINA MOFFATT and
ANTHONY MOFFATT,

           Plaintiff-Appellant,

v.

PARSIPPANY TROY HILLS
BOARD OF EDUCATION,
INTERVALE ELEMENTARY
SCHOOL, and CHRIS GUARNERI,

     Defendants-Respondents.
________________________________

                    Argued October 1, 2018 – Decided November 16, 2018

                    Before Judges Fasciale, Gooden Brown and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Docket No. L-2437-14.

                    K. Raja Bhattacharya argued the cause for appellant
                    (Bendit Weinstock, PA, attorneys; Sherri Davis Fowler
                    and K. Raja Bhattacharya, on the briefs).

                    Randall S. Bruckman argued the cause for respondents
                    (Gold Albanese Barletti & Locascio, LLC, attorneys;
                    Randall S. Bruckman, on the brief).
PER CURIAM

      Plaintiff Kristina Moffatt 1 appeals from the Law Division's March 31,

2017 summary judgment dismissal of her personal injury complaint against

defendants Parsippany Troy Hills Board of Education (BOE), Intervale

Elementary School (Intervale School), and Chris Guarneri. After reviewing the

record and applicable legal principles, we reverse and remand.

      We discern the following facts from the motion record, extending to

plaintiff all favorable inferences. Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995).

      On February 12, 2014, while walking from the school building to her car,

plaintiff fractured her ankle "when she slipped and fell on ice covering the

sidewalk area between the bus drop-off area and [Intervale School's] parking

lot." Plaintiff fell "in or adjacent to the area of . . . a cutout in the sidewalk

[utilized] for access to the handicap parking spots." At the time of plaintiff's

fall, the weather was "sunny, clear and cold . . . [approximately ten degrees

Fahrenheit]."




1
  In our opinion we refer to Kristina Moffatt as plaintiff, although we recognize
Anthony Moffatt, her husband, also has filed a derivative claim for loss of
consortium.
                                                                          A-3725-16T1
                                        2
      Plaintiff did not notice snow or ice when she stepped on the sidewalk.

However, ice in the area where plaintiff fell measured approximately four feet

long, two feet wide, and four inches thick. Mounds of snow were situated "on

the end of the island walkway." Nearly nine inches of snow had fallen a few

days earlier. In clearing the snow from the school grounds, BOE employees

"[might] have inadvertently dropped snow in the area where [p]laintiff fell."

      Plaintiff retained Dr. Wayne Nolte, an engineering expert, to evaluate the

accident site and provide an expert opinion concerning liability. In addition to

inspecting the site, Dr. Nolte reviewed discovery, relevant weather reports, and

the Barrier Free Subcode of New Jersey's Uniform Construction Code.

Thereafter, Dr. Nolte issued a written report, concluding:

            1. The accident site was in a hazardous condition on
            the day of this accident.

            2. The hazardous condition was the defective sidewalk
            condition.

            3. [Plaintiff] was not given any warning that the area
            where she stepped up was defective. The corner of the
            island sidewalk was missing and had a low elevation
            which allowed water to accumulate.

            4. Discoloration of the concrete where the section of
            concrete is missing from the corner of the island
            sidewalk and where the accident took place, as well as
            discoloration of the concrete curb immediately across
            from it where damage also existed, showed uniform

                                                                         A-3725-16T1
                                       3
            discoloration indicating that the condition was not
            something that had just occurred but had occurred for a
            long time prior to this accident (years).

            5. The defective area where this accident occurred was
            a handicap accessible passageway required to be firm,
            stable and slip-resistant. This defective area on the
            morning of this accident was not firm, stable or slip-
            resistant.

            6. The failure of the [BOE], Intervale School and [head
            custodian] Christopher Guarneri to observe ice in the
            defective corner of the sidewalk and handicap
            accessible passageway was palpably unreasonable. The
            sidewalk defect and topographic condition provided
            them an opportunity to see that water was accumulating
            in this area and under low temperatures would freeze to
            ice. Their failure to address this condition and
            especially so in a handicap accessible passageway was
            palpably unreasonable and the cause of this accident.

      At the close of discovery, defendants filed a motion for summary

judgment, arguing plaintiff's claims were barred under common law snow

removal immunity, and statutory immunity pursuant to the Tort Claims Act

(TCA), N.J.S.A. 59:2-3 and N.J.S.A. 59:4-2.2 Following oral argument on

March 31, 2017, the court dismissed plaintiff's complaint, finding common law

immunity shielded defendants from liability. The court did not address the

factors set forth in N.J.S.A. 59:4-2.


2
  Plaintiff filed a cross-motion for partial summary judgment as to liability,
only, which was denied. Plaintiff does not appeal from that order.
                                                                      A-3725-16T1
                                        4
      In its ruling, the court determined there was "no evidence that would

permit a rational [j]uror to conclude that the condition of the sidewalk

independent of the snow removal activities caused the accident." The court

elaborated:

              [Y]es, there was this four-inch sheet of – block of ice
              that filled the walkway, not something that says that
              because of this concrete, the defect in the concrete
              corner, that water melted, went in there and that it . . .
              never did that . . . without that defect. I just don't have
              anything there.

                    ....

              [O]ther than . . . Dr. Nolte . . . none of the witness[es]
              testif[ied] that the missing section of concrete resulted
              in the accumulation of water, snow, or ice either on that
              particular date or any other occasion, from what I could
              see when I reviewed the transcript.

                    ....

                      Although the other witnesses testified about the
              presence of snow and ice on the sidewalk and in the
              area of the cutout, none made any mention of the
              missing concrete or any suggestion that there [was]
              . . . some history of water accumulating in the area as a
              result of the missing concrete.

      The court concluded, "To the extent Dr. Nolte opine[d] that the condition

of the area was dangerous, it was because the snow and ice accumulated in the

area." In essence, the court found the accident was a result of defendants' snow


                                                                            A-3725-16T1
                                          5
removal efforts, which were protected by common law immunity. In doing so,

the court rejected plaintiff's argument that the broken concrete curbing caused

accumulation of ice, creating a dangerous condition that caused her accident. 3

This appeal followed.

        On appeal, plaintiff argues that, in broadly applying common law snow

removal immunity, the trial court misapplied the law and impermissibly acted

as the factfinder by resolving factual issues, including causation. She renews

her argument that the broken concrete curbing created a dangerous condition

pursuant to N.J.S.A. 59:4-2, which the court did not address. Further, plaintiff

contends the trial court erred in failing to apply or, in the alternative declining

to extend, the Bligen4 exception to common law snow removal immunity in this

case.

        We review a grant of summary judgment de novo, observing the same

standard as the trial court. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479

(2016). Summary judgment should be granted only if the record demonstrates



3
  Although the March 31, 2017 order indicates summary judgment was granted
based on defendants' "entitlement to common law snow removal immunity and
or the [TCA,]" the court did not decide the motion on statutory grounds.
4
  Bligen v. Jersey City Hous. Auth., 131 N.J. 124, 136 (1993) (excepting a
public housing authority from common law snow-removal immunity).
                                                                           A-3725-16T1
                                        6
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).

      In performing this review, we must interpret the facts, and any inferences

therefrom, in the light most favorable to the non-moving party. See ibid.;

Lippman v. Ethicon, Inc., 222 N.J. 362, 367 (2015) (citing Brill, 142 N.J. at 523,

540). If there is a genuine issue as to any material fact, or credibility issues are

presented, summary judgment should be denied. See R. 4:46-2(c); Brill, 142

N.J. at 540. If no genuine issue of material fact exists, the inquiry then turns to

"whether the trial court correctly interpreted the law."          DepoLink Court

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.

Div. 2013) (citation omitted).

      We have recognized "two possible roads to snow-removal immunity[:]

one is the [TCA] and the other is the common law." Sykes v. Rutgers, State

Univ. of New Jersey, 308 N.J. Super. 265, 267 (App. Div. 1998). The common

law doctrine of snow removal immunity was born of the recognition that

complete "broom-swept" snow clearance is unrealistic, and even negligent snow

removal is better than no snow removal. Miehl v. Darpino, 53 N.J. 49, 54 (1968)

(holding public entities are immune from liability for negligent snow removal).

Indeed, "By their very nature . . . snow-removal activities leave behind


                                                                            A-3725-16T1
                                         7
'dangerous conditions.'" Rochinsky v. State, Dep't of Transp., 110 N.J. 399, 413

(1988).

      Further, common law snow removal immunity recognizes that

municipalities face a difficult task of prioritization following a snowfall, and

seeks to protect them from the "limitless liability" that could result if they "had

to compensate every person injured from ice and snow on the State's hundreds

of miles of streets and highways." Bligen, 131 N.J. at 131. Thus, "the common

law consistently recognized immunity for injuries caused by the snow-removal

activities of most public entities." Ibid. Shoveling, snow-blowing and salting

fall "under the umbrella of snow removal activities." Lathers v. Twp. of W.

Windsor, 308 N.J. Super. 301, 304-05 (App. Div. 1998) (citation omitted).

      Immunity applies when snow or ice is the alleged cause of the accident.

See Miehl, 53 N.J. at 53; see also Rochinsky, 110 N.J. at 415 n.7 (noting a cause

of action could exist where a public entity's conduct was "unrelated to snow -

removal activity" and amounted to "palpably unreasonable failure to warn of a

dangerous condition").      However, Miehl, Rochinsky, and Lathers each

considered claims against public entities solely based on negligent snow

removal, independent of a dangerous condition in the pavement. Importantly,

those cases did not address claims such as those advanced by plaintiff here that


                                                                           A-3725-16T1
                                        8
the broken concrete curbing created a dangerous condition pursuant to N.J.S.A.

59:4-2, which provides:

            A public entity is liable for injury caused by a condition
            of its property if the plaintiff establishes that the
            property was in dangerous condition at the time of the
            injury, that the injury was proximately caused by the
            dangerous condition, that the dangerous condition
            created a reasonably foreseeable risk of the kind of
            injury which was incurred, and that either:

            a. a negligent or wrongful act or omission of an
            employee of the public entity within the scope of his
            employment created the dangerous condition; or

            b. a public entity had actual or constructive notice of
            the dangerous condition under section 59:4-3 a
            sufficient time prior to the injury to have taken
            measures to protect against the dangerous condition.

            Nothing in this section shall be construed to impose
            liability upon a public entity for a dangerous condition
            of its public property if the action the entity took to
            protect against the condition or the failure to take such
            action was not palpably unreasonable.

      Viewing the facts, and the inferences therefrom, in the light most

favorable to plaintiff, the court improperly resolved causation by discounting

Dr. Nolte's unrefuted opinion that the property was in a dangerous condition.

Through her expert, plaintiff set forth sufficient evidence to suggest the

dangerous condition that caused her accident was not defendants' snow removal,

in isolation. Rather, according to Dr. Nolte, the missing chunk of concrete ,

                                                                         A-3725-16T1
                                        9
which preexisted the snow event, caused ice to form. We therefore agree with

plaintiff that, under the circumstances of this case, the trial court erred by finding

common law snow removal immunity barred her claims, and failing to analyze

the viability of those claims pursuant to N.J.S.A 59:4-2.

      Because we determine that common law immunity does not bar plaintiff's

claims, we decline to accept her invitation to extend Bligen to the facts presented

here. See Sykes, 308 N.J. Super. at 269 ("In the absence of a clearly established

landlord-tenant relationship, our courts have previously rejected attempts by slip

and fall plaintiffs to classify a particular public entity as akin to a commercial

landlord in order to squeeze within the Bligen rationale."). Instead, extension

of the TCA's provision to abrogate municipal immunity for alleged snow and ice

removal on school properties is a subject to be addressed and determined by the

Legislature.

      Accordingly, we vacate the order dismissing plaintiff's complaint on

summary judgment only regarding common law snow removal immunity, and

remand the case to the trial court to determine the viability of plaintiff's claims

pursuant to N.J.S.A. 59:4-2. See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289,

302 (App. Div. 2009) (citation omitted) (Our review "does not consist of

weighing evidence anew and making independent factual findings; rather, our


                                                                              A-3725-16T1
                                         10
function is to determine whether there is adequate evidence to support the

judgment rendered by the trial court."). We do not retain jurisdiction.

      Reversed and remanded.




                                                                          A-3725-16T1
                                      11
