1. SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4913-14T4
VICTORIA STUART,
Plaintiff-Appellant,
v.
MAHWAH BOARD OF EDUCATION,
and DUTRA EXCAVATING AND SEWER,
INC.,
Defendants-Respondents,
_____________________________
Submitted October 31, 2016 – Decided
Before Judges Sabatino and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-9484-13.
Gill & Chamas, LLC, attorneys for appellant
(William A. Bock, of counsel and on the
briefs).
Zirulnik, Sherlock & Demille, attorneys for
respondent Mahwah Board of Education (Brian
J. Convery, of counsel and on the brief).
Michael C. Urciuoli, attorney for respondent
Dutra Excavating and Sewer, Inc.
PER CURIAM
NOT FOR PUBLICATION WITHOUT THE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.
November 30, 2016

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Plaintiff Victoria Stuart was injured when she slipped and
fell in an icy parking lot. The lot was owned and maintained by
defendant Mahwah Board of Education (Board). The Board contracted
with defendant Dutra Excavating and Sewer, Inc. (Dutra) to assist
with snow removal services. Plaintiff appeals from the May 29,
2015 order granting summary judgment to defendants.
In January 2013, a few days after a snowstorm, plaintiff
parked her car in a parking lot owned and maintained by the Board
and walked through the lot to the adjacent school to pick up her
daughter. Plaintiff stated that as she returned through the lot
back to the car, she slipped and fell on black ice.
The Board is a municipal body that manages five public schools
in Mahwah Township. It used its own employees for snow and ice
removal and it also employed Dutra as an outside contractor. Dutra
only provided services if contacted by the Board, which would
instruct the contractor on what work to do and when to do such
work. Dutra did not perform any de-icing services; the Board
through its own personnel provided and spread salt on the parking
lots and sidewalks.
Plaintiff fell in a parking lot referred to as the "Center
for Food Action" lot because it is on property leased to a private
organization of the same name. The lot, however, is owned and

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maintained by the Board and is used as a parking lot by school
employees as well as high school students.
Both defendants moved for summary judgment; the Board argued
it was entitled to common law immunities for snow removal
activities, and Dutra contended it had no liability to plaintiff
as it had performed the snow removal duties as instructed by the
Board and it had no de-icing responsibilities. The trial court
agreed and granted defendants' motions in a thorough, written
decision on May 29, 2015.
We review the grant of summary judgment, as we must, using
the same standard as the trial court and viewing the evidence "in
the light most favorable to the non-moving party." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "[T]he
legal conclusions undergirding the summary judgment motion itself
[are reviewed] on a plenary de novo basis." Estate of Hanges v.
Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
On appeal, plaintiff mainly relies on Bligen v. Jersey City
Housing Authority, 131 N.J. 124, 128 (1993), to support her
argument that the Board was acting as a municipal landlord in
respect to the parking lot, and, therefore it was not entitled to
common law weather immunities. Plaintiff also contends that the
Board assumed a duty to warn of the hazardous ice condition when
it placed a staff member in the area of the condition to direct

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traffic during the school dismissal hour. As to Dutra, plaintiff
asserts that the contractor had a duty to identify and remediate
the icy condition. Finally, plaintiff argues the grant of summary
judgment was premature as discovery was ongoing and there were
outstanding depositions.
We begin with the arguments presented against the Board. In
Miehl v. Darpino, 53 N.J. 49 (1968) the Supreme Court established
common law immunity for snow removal activities performed by a
public entity. The Court reasoned that "[t]he 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 the danger of accident is better than
none." Id. at 54.
The defendant in Bligen, supra, 131 N.J. at 131, sought to
invoke that immunity against the claims of the plaintiff who had
fallen in the icy driveway outside her apartment building which
was owned by defendant. The Court distinguished a public housing
authority from a municipality, reasoning that the policy concern
that municipalities could face unlimited liability for negligent
snow removal in the absence of common law immunity is not present
in the case of a public housing authority. Id. at 131.
Municipalities are responsible for miles of streets and highways,
and are often forced to decide which areas of the city warrant

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immediate attention. Id. at 131-32. By contrast, a housing
authority is responsible for snow removal in a comparatively small
and finite area, and as such, may be held liable for negligent
snow removal. Id. at 131. Additionally, the Court explained that
the common law immunity for snow removal activities traditionally
did not apply to public housing authorities because they were
considered municipal landlords and deemed to owe the same standard
of care to their tenants as did other commercial landlords. Id.
at 137-138. Therefore, the Court found the defendant housing
authority was not protected by the common law immunity for snow
removal.
Since the Bligen decision, subsequent courts have refused to extend
its narrow holding to public entities other than housing
authorities. See O'Connell v. New Jersey Sports and Exposition
Auth., 337 N.J. Super. 122, 132-34 (App. Div. 2001) (permitting
defendant to invoke the common law immunity for its clearing of
seats and steps in a football stadium); Sykes v. Rutgers, State
University of New Jersey, 308 N.J. Super. 265, 269 (App. Div.
1998) (declining to classify Rutgers as a municipal landlord and
allowing the university to invoke the common law snow removal
immunity in a dormitory parking lot); Lathers v. Twp. of W.
Windsor, 308 N.J. Super. 301, 305-06 (App. Div. 1998) (refusing

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to apply Bligen to override common law immunity where there is no
landlord-tenant relationship).
Because the Board leased a portion of the parking lot to the
Center for Food Action, plaintiff urges us to label the Board a
municipal landlord, thus allowing her claims to fit within the
narrow Bligen exception. We decline to do so. It is undisputed
that the lot was owned and maintained by the Board. Employees of
the schools and students used the lot and plaintiff had parked
there in order to retrieve her daughter at school. Defendant was
not a housing authority; there was no established landlord-tenant
relationship between the parties. See Rossi v. Borough of
Haddonfield, 297 N.J. Super. 494, 501 (App. Div. 1997).
Furthermore, the Board was responsible for more than 179 acres of
property; we do not consider this to be a "finite bounded area"
comparable to the housing authority complex in Bligen so as to
deprive the Board of the protection of the common law snow removal
immunities. Sykes, supra, 308 N.J. Super. at 268-69.
Notwithstanding the common law immunity afforded to the
Board, plaintiff argues that it nevertheless had a duty to warn
her of the icy condition as there was a staff member stationed in
the area of the fall to assist with dismissal and direct traffic;
therefore, plaintiff contends the Board had actual or constructive

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notice of the condition, triggering a duty. We find this argument
unpersuasive.
In Rochinsky v. N.J. Dep't of Transp., 110 N.J. 399 (1988)
the Court found that a public entity's duty to warn of a dangerous
condition circumvented the common law immunity only under
"extraordinary circumstances" that are "different in character
from the dangers ordinarily expected from a snowstorm." Id. at
416. The formation of black ice that can occur after a snowstorm
is an ordinary, expected occurrence; one that does not amount to
an extraordinary circumstance.
Turning to plaintiff's arguments respecting Dutra's
liability, we are satisfied that the trial judge's ruling that
Dutra owed no duty to plaintiff was supported by the credible
evidence. By contractual agreement, snow removal was only
performed by Dutra upon the request and instruction of the Board.
As the judge noted:
Plaintiff's action rests on the theory that
the parking lot was not properly de-iced;
however, the uncontradicted evidence in the
summary judgment record establishes Dutra had
no duty to lay sand or salt to de-ice the
parking lot, nor did Dutra ever undertake to
do the same. That responsibility fell
squarely with [the Board].
We briefly address plaintiff's contention that the summary
judgment motions were premature as "the time for taking depositions

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had not expired"; specifically, she desired to depose a custodian,
teacher and nurse from the school. Depositions were presented
from the Board's supervisor of building and grounds as well as the
owner of Dutra, each outlining their respective responsibilities
regarding the clearing of snow from the parking lot. The issues
before us are legal issues; whether the Board is protected under
common law immunities for snow removal, and whether Dutra owes
plaintiff a duty of care. We are satisfied that the deposition
testimony sought by plaintiff from additional witnesses would not
have changed the legal conclusions reached by the trial judge and
upheld here. See Apfel v. Budd Larner Gross, 324 N.J. Super. 133,
144 (App. Div. 1999). We affirm the order granting summary
judgment to defendants.
Affirmed.