WEATHER IMMUNITY DEEMED NOT ABSOLUTE. APPELLATE DIVISION ALLOWS LAWSUIT AGAINST NJ TRANSIT.

The Appellate Division was called upon to decide if the weather immunity provision of the Tort Claims Act affords public entities absolute protection from lawsuits arising out of motor vehicle accidents which occur during a snowstorm. In this case, plaintiff was stopped at a traffic light in Atlantic City when she was struck from behind by a NJ Transit bus. At the time of the accident, it was snowing heavily, and the road conditions were slushy. The driver of the bus claimed that she attempted to stop, but was unable to do so due to snow on the road. The bus driver claimed that at the time of the accident she was traveling less than 5 mph. Video from the bus showed that it was traveling 19 mph before the driver applied the brakes, and struck plaintiff’s vehicle at 8 mph.

Plaintiff filed a lawsuit against NJ Transit and the bus driver alleging injuries as a result of the accident. At the conclusion of discovery, NJ Transit moved for Summary Judgment arguing that the weather immunity barred the action. Under the weather immunity, “neither a public entity nor a public employee is liable for an injury caused solely by the effect on the use of streets and highways of weather conditions.” NJ Transit argued that as snowy road conditions caused the accident, the Complaint should be dismissed. Plaintiff argued that the immunity was not applicable as the driver was traveling too fast for the road conditions. In granting the motion for Summary Judgment, the trial Judge found that it did not matter what speed the bus was traveling at the time of impact because there was nothing in the evidence to permit him to conclude anything other than the weather conditions caused the accident. Plaintiff appealed that dismissal.

In reviewing the trial Court’s decision, the Appellate Division noted that absent an immunity enumerated under the Tort Claims Act, a public entity is liable for an injury proximately caused by an act or omission of a public employee in the scope of his employment in the same manner and to the same extent as a private individual under like circumstances. The Court noted that the weather immunity is only applicable if weather is the sole cause of the accident. In this case, the Court found that there was a genuine issue of material fact with regard to whether or not the weather conditions were the sole cause of the accident, or the accident was caused by the driver operating the bus in an unreasonable manner for the weather conditions. Specifically, was the driver traveling too fast for the slushy road conditions. Ultimately, the Court found that this was a question of fact which must be assessed by a jury. Accordingly, the Court reversed the Order of Dismissal and remanded the case for trial.

This ruling will serve as a basis for claimants to argue that the weather immunity is not an absolute bar to claims involving motor vehicle accidents against public entities occurring in bad weather. Instead, if an argument can be made that the accident was not caused solely by the weather conditions, claimants have a good opportunity to have their cause of action against public entities get to trial.

Mercado v. Kimmel et al., NJ App. Div., A-4742-18.

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