Rochinsky v. State of NJ, Dept. of Transp.

The judgment of the Court was delivered by

*402STEIN, J.

In this case we consider whether the absolute immunity for snow-removal activities conferred on public entities by our decision in Miehl v. Darpino, 53 N.J. 49 (1968), was preserved by the enactment of the Tort Claims Act, N.J.S.A. 59:1-1 to 14-4 (the Act). We conclude that the Act did not abrogate that immunity.

The facts are uncomplicated. On February 11 and 12, 1983, a major snowstorm deposited more than sixteen inches of snow in and around Essex County. The New Jersey Department of Transportation (DOT) and its contractors performed snow-removal activities in the area from 9:00 a.m. on February 11,1983 until 11:30 p.m. on February 13, 1983. DOT continued cleanup operations thereafter during normal working hours. On February 14, 1983, plaintiff Alexander Rochinsky was a passenger in a motor vehicle that overturned in the right southbound lane of Route 21 in Nutley, New Jersey. Plaintiff and his wife filed a complaint against defendants seeking damages for his injuries. The complaint alleged that defendants carried out snow removal in a “grossly negligent, hazardous and reckless manner * * * as to cause and create a dangerous condition on the highway.” In answers to interrogatories, plaintiffs amplified their description of the accident, alleging that the lane in which the vehicle was traveling “ended due to a snowbank,” and attributing the accident to defendants’ “inadequate snow removal * * * specifically, the partial plowing of a major roadway creating a snowbank ending the lane of traffic without warning and without regard to traffic circumstances.”

The DOT invoked the Miehl immunity and moved for summary judgment. The trial court was faced with conflicting Appellate Division holdings on the question whether the Tort Claims Act preserved the Miehl immunity. In Manca v. Borough of Hopatcong, 157 N.J.Super. 67 (App.Div.), certif. denied, 77 N.J. 480 (1978), the plaintiff alleged that her accident had been caused by a public entity’s snow-removal activities that had *403narrowed the road width and allowed icy ruts to form. The court rejected plaintiffs argument that the Act superseded judicial decisions predating its adoption. Affirming the summary judgment granted in favor of the public entity, the court found nothing in the Tort Claims Act that reflected a “legislative intent to abolish the immunity established in the area of discretionary municipal activities typified by Miehl.” Id. at 73.

A different panel of the Appellate Division reached the opposite conclusion in Paternoster v. New Jersey Transp. Dep’t, 190 N.J.Super. 11 (App.Div.), certif. denied, 96 N.J. 258 (1983). In that case, a three-vehicle collision occurred when the driver of one vehicle entered an intersection and failed to observe two other approaching vehicles. Plaintiffs alleged that the accident was caused by the presence of. high snowbanks at the corner of the intersection. The State had lowered the height of these snowbanks on two occasions in the days preceding the accident. The court ruled that because Miehl was a pre-Tort Claims Act case, it was no longer controlling. Id. at 17. It relied on N.J.S.A. 59:2-3(d), which exposes a public entity to liability “for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources,” if that determination was “palpably unreasonable.” The court also noted that subsection (d) distinguishes discretionary functions from ministerial functions and provides that N.J.S.A. 59:2-3 does not insulate the performance of ministerial functions from liability. The court concluded that the conduct of the public entities in the case before it could not be accorded immunity as a matter of law and had to be measured against the “palpably unreasonable” standard. Id.

In this case the trial court followed Manca and granted the DOT’s motion for summary judgment, but the Appellate Division reversed. Rochinsky v. State, Dep’t of Transp., 214 N.J.Super. 525 (1986). The court reasoned that the Legislature intended pre-existing common-law immunities to survive only to the extent they were consistent with the Act. Id. at 528. *404Because the court interpreted Miehl as establishing immunity for snow-removal activities involving both discretionary decisions as well as ministerial operations, it concluded that Miehl was inconsistent with N.J.S.A. 59:2-3 and therefore was modified by the Act. Id. at 529. The court also held that Miehl’s immunity was abrogated by N.J.S.A. 59:4-7, which affords public entities immunity from liability only for injuries caused solely by weather conditions in their natural state, but not for injuries caused by a combination of weather conditions and snow-removal activities. We granted certification, 107 N.J. 124 (1987), and now reverse.

I

In 1972, the Legislature enacted the Tort Claims Act in response to mounting judicial disfavor with the doctrine of sovereign immunity. This Court had observed that “[sovereign] immunity from tort liability * * * [had] fallen into considerable disrepute.” B.W. King v. West New York, 49 N.J. 318, 324 (1967). We acknowledged that “the difficulty with the articulation of a substitutionary rule lies in the ascertainment and expression of a perimeter for liability,” and held that “the problem should be approached on * * * a gradual case by case basis.” Id. at 324, 325. We also observed that “[t]he analytical approach ought not to be one of asking why immunity should not apply in a given situation but rather one of asking whether there is any reason why it should apply.” Id. at 325. Three years later we speculated that a comprehensive legislative solution to the question of when public entities should be held liable in tort had “been delayed by the difficulty inherent in expressing a doctrine * * Willis v. Department of Conservation & Economic Dev., 55 N.J. 534, 539 (1970). We concluded that until the Legislature acted, it was “time for the judiciary to accept * * * responsibility and adjudicate the tort liability of the State itself.” Id. at 540; see also P.T. & L. Constr. Co. v. Commissioner of Transp., 55 N.J. 341 (1970) (abolishing the State’s immunity in contract actions).

*405In the midst of this gradual erosion of judicial tolerance for the doctrine of sovereign immunity, public entities were held to be immune from liability for negligent snow removal. Miehl v. Darpino, supra, 53 N.J. 49. In Miehl, the City of Hammonton had received a heavy snowfall. Snowplowing operations at the intersection of two streets had left snowbanks on the corners of the intersection. Only a narrow passage in the snow bank allowed pedestrians to enter the intersection. Plaintiff, who was attempting to cross one of the streets, traversed the passageway, took several steps to his left, and waited for a lull in traffic. An approaching car veered toward him. Plaintiff tried to avoid the vehicle, but was struck because he was unable to find an opening in the snow through which he could regain access to the sidewalk. He alleged that his injuries were caused by negligent snowplowing.1 This Court, through Justice Haneman, acknowledged that “the law of municipal tort liability [was] going through a metamorphosis,” and analyzed the snow-removal function to “determine whether the present situation [snow removal] is one in which, as a matter of policy, the municipality should not enjoy immunity, but rather should be subject to * * * liability.” Id. at 53.

Focusing on the unique challenge snow removal poses for public entities, Justice Haneman concluded that this was an activity for which public-entity immunity was particularly essential. He reasoned:

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 *406becomes 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 well-nigh 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 removal which does not attain the acme of perfection of “broom swept” streets. Relief from fallen snow which does not eliminate all danger of accident is better than none.
The unusual traveling conditions following a snowfall are obvious to the public. Individuals can and should proceed to ambulate on a restricted basis, and if travel is necessary, accept the risks inherent at such a time. To require the individual members of the public to assume the relatively mild additional danger presented by accumulated piles of snow resulting from street snow removal is a minor sacrifice to exact when the alternative could be municipal failure to eliminate the far greater danger caused by permitting snow to remain as deposited by natural forces. The public benefit arising from snow removal far outweighs any slight, private detriment which could accompany such a municipal act. [Id. at 53-54.] 2

In response to this evolving body of case law dealing with tort liability of public entities, the Attorney General prepared a comprehensive report on sovereign immunity which led to the enactment of the Tort Claims Act.3 The law became effective *407on July 1, 1972, and contained the following legislative declaration:

The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carrying out the above legislative declaration. [N.J.S.A. 59:1-2.]

The first substantive section of the Act establishes the analytical framework to be used in resolving questions of governmental immunity: “Except as otherwise provided by this act, a public entity is not liable for an injury * * N.J.S.A. 59:2-1(a). Further, “[a]ny liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person.” N.J.S.A. 59:2-l(b).

The Comment4 to this section reveals the Legislature’s overriding objective. It states that N.J.S.A. 59:2-l(a) “provides that the basic statutory approach of the [Act] shall be that immunity of all governmental bodies in New Jersey is re-established.” In drafting section 2-l(a) the Legislature expressly adopted the reasoning of the California Law Revision Commission which is embodied in the California Tort Claims Act, Cal. Gov’t Code § 810 et seq. The paramount concern was that a statute *408imposing general liability, limited only by specified statutory immunities, would provide public entities with little basis on which to budget for the payment of claims and judgments for damages. The Comment rejected the concept of a statute that imposed liability with specific exceptions, expressing concern that such a statute would greatly increase the amount of litigation and the attendant expense that public entities would face. Instead, the Attorney General’s Report recommended legislation providing “that public entities are immune from liability unless they are declared to be liable by an enactment.” N.J.S.A. 59:2-1 Task Force Comment.

The Legislature specifically rejected the rationale favoring governmental liability expressed in B.W. King, supra, 49 N.J. 318 observing that

this approach is no longer necessary in light of this comprehensive Tort Claims Act. Rather the approach should be whetker an immunity applies and if not, should liability attach. It is hoped that in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities. [N.J.S.A. 59:2-1 Task Force Comment (emphasis supplied).]

Subsection 2-l(b) reflects the Legislature’s intent to preserve common-law immunities:

Subsection (b) is intended to insure that any immunity provisions provided in the act or by common law will prevail over the liability provisions. It is anticipated that the Courts will realistically interpret both the statutory and common law immunities in order to effectuate their intended scope. [N.J.S.A. 59:2-1 Task Force Comment (emphasis supplied).]

We have held that the plain meaning of N.J.S.A. 59:2-1 firmly establishes that “immunity is the dominant consideration of the Act.” Kolitch v. Lindedahl, 100 N.J. 485, 498 (1985) (O’Hern, J., concurring); accord Birchwood Lakes Country Club v. Medford Lakes, 90 N.J. 582, 596 (1982). Even when one of the Act’s provisions establishes liability, that liability is ordinarily negated if the public entity possesses a corresponding immunity. See Malloy v. State, 76 N.J. 515, 521 (1978) (giving priority to licensing function immunity provided by N.J.S.A. 59:2-5 over liability established by N.J.S.A. 59:2-2); see also Costa v. Josey, 83 N.J. 49, 61 (1980) (Clifford, J., dissenting) (finding Comment to section 2-l(b) to be “as explicit as possible”).

*409Section 2-l(b) establishes the principle that even common-law and statutory immunities not contained in the Act can prevail over the Act’s liability provisions. See In re Martin, 90 N.J. 295, 335 (1982) (provision of Casino Control Act, N.J.S.A. 5:12-80(b), granting immunity for any disclosures of confidential information on employment applications given full effect in light of N.J.S.A. 59:2—1(b)); Timber Properties, Inc. v. Chester Township, 205 N.J.Super. 273 (App.Div.1984) (holding that common-law rule that municipal legislators enjoyed absolute immunity from individual monetary liability “was preserved under the Tort Claims Act”); Trimblett v. State, 156 N.J.Super. 291 (App.Div.1978) (imputing to public entities the pre-existing statutory immunity afforded private landowners against liability to one who uses the landowner’s premises for sport or recreation activities); see also Birchwood Lakes Colony Club v. Medford Lakes, supra, 90 N.J. 582 (employing pre-Act common-law theories in assessing public entity liability for nuisance actions); Burke v. Deiner, 97 N.J. 465 (1984) (interpreting common-law and statutory immunities in the context of defamation claim by director of parking authority against commissioners who had participated in resolution discharging him).

There are three principal liability sections in the Act. N.J.S. A. 59:2-2, incorporating the doctrine of respondeat superior, provides that “[a] public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.”

N.J.S.A. 59:2-3 includes both immunity and liability provisions:

Discretionary activities.
a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity;
b. A public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;
c. A public entity is not liable for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase *410of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adeqate governmental services;
d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions. [Emphasis supplied.]

Finally, N.J.S.A. 59:4-2 deals with the liability a public entity may incur for dangerous conditions of its property either created by an employee of the public entity or of which the public entity had actual or constructive notice. If Miehl has been abrogated by the Act, this would be the primary section that establishes liability for snow-removal activities. It reads as follows:

Liability generally.
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.5

Along with the general immunity provisions discussed above, the Act contains several specific immunity provisions. Among them is N.J.S.A. 59:4-7, which states:

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.

This subsection does not apply in cases where injuries are allegedly caused by a combination of the weather and other *411factors. See Meta v. Township of Cherry Hill, 152 N.J.Super. 228, 232 (App.Div.), certif. denied, 75 N.J. 587 (1977).

II

Despite the Legislature’s awareness of the Miehl immunity when it drafted the Act,6 nowhere in the statute is the immunity either expressly abrogated or codified. Plaintiffs argue that two provisions of the Act indicate the Legislature’s intent to modify Miehl and thereby expose snow-removal activities to the standard set forth in section 4-2. First, plaintiffs contend that because N.J.S.A. 59:2-3d distinguishes between discretionary decision-making and ministerial functions, absolute immunity was preserved only for discretionary actions. Therefore, according to plaintiff, the Legislature intended to abrogate Miehl, at least to the extent that Miehl shielded the ministerial aspects of snow-removal activity. We find this argument to be unpersuasive.

The drafters of this provision expressly acknowledged that the ministerial-discretionary distinction is too simplistic to be applied literally. Task Force Report, supra, at 44. Virtually every governmental act includes the exercise of some degree of discretion. Snow-removal activities involve discretionary decisions at every phase of the process: when to begin snow-removal activities; the order in which streets are to be plowed; whether to use salt or sand; whether to plow one or two lanes of a highway; whether to plow certain streets more than once *412during a prolonged snowfall. It cannot precisely be determined when such actions cease to be discretionary and become ministerial.

Moreover, even if a particular governmental activity is labelled “ministerial,” it does not automatically lose its immune status. Several immunities have been found to cover ministerial as well as discretionary acts. See Malloy v. State, 76 N.J. 515 (1978) (construing N.J.S.A. 59:2-5, which covers the issuance, denial, suspension, or revocation of a permit or license); Wuethrich v. Delia, 155 N.J.Super. 324 (App.Div.), certif. denied, 77 N.J. 486 (1978) (construing N.J.S.A. 59:5-4 and 5-5, which deal with failure to provide police protection and failure to make an arrest, respectively); Bosch v. Hain, 184 N.J.Super. 204 (Law Div.1982) (construing N.J.S.A. 59:2-6, which provides immunity for failure to inspect public property).

Plaintiffs also assert that the Legislature abrogated Miehl because N.J.S.A. 59:4-7 establishes immunity only for injuries caused by weather conditions as they exist in their natural state, before snow-removal operations begin. This argument is also unconvincing. The Legislature’s decision specifically to shield public entities from liability for injuries caused solely by weather relates to situations not contemplated by Miehl; it provides no conclusive evidence of legislative intent about liability for snow-removal activity, one way or the other.

Accordingly, we find no clear evidence of the Legislature's intent to abrogate the immunity established by Miehl. To the contrary, we believe the practical effect of Miehl’s continued applicability is consistent with the underlying goals and purposes of the Act.

The conditions that influenced our holding in Miehl twenty years ago are equally prevalent today, if not more so. An expanded network of state and municipal roadways, along with increased traffic volume, renders the task of snow removal a formidable public responsibility. The economy of the State and the safety of its residents depend on an effective and swift *413response to snowfalls. That response requires cooperation and coordination of each level of government. Unified governmental action obviously would be inhibited if each public entity factored the threat of tort liability into its individual determination of how to conduct snow-removal activities.

The most recent statistics compiled by the New Jersey Department of Transportation reveal that an average of 18,000 motor vehicle accidents occur annually on snowy or icy roads in New Jersey. NEW JERSEY DEPARTMENT OF TRANSPORTATION-BUREAU OF ACCIDENT RECORDS, SUMMARY OF MOTOR VEHICLE TRAFFIC ACCIDENTS FOR 1984 AND 1985—REPORT 21 (photo, reprints). If the Miehl immunity were abrogated, it is probable that a substantial number of these accidents would generate claims of negligent snow removal. Indeed, conditions resulting from virtually any snow-removal activity would provide a tailor-made factual basis for a complaint' under N.J.S.A. 59:4-2.

To allege a triable cause of action, a plaintiff must show that as a result of a public entity’s palpably unreasonable conduct, the entity’s property was in a dangerous condition at the time of the accident, that the condition proximately caused the injury, that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred, and that the public entity had notice in sufficient time to protect against the condition or that an act or omission of a public employee acting within tlfe scope of his employment created the condition. Brown v. Brown, supra, 86 N.J. at 575. By their very nature, however, snow-removal activities leave behind “dangerous conditions.” No matter how effective an entity’s snow-removal activities may be, a multitude of claims could be filed after every snowstorm. We can conceive of no other governmental function that would expose public entities to more litigation if this immunity were to be abrogated.

Moreover, irrespective of the outcome of such litigation, the cost of defending claims would be substantial. Damage awards *414and settlement costs would inevitably drive up public entity insurance costs. It was precisely such a situation that the Legislature sought to avoid by enacting the Tort Claims Act:

[T]he cost of insurance under [a statute imposing liability with specified exceptions] would no doubt be greater than under a statute which provided for immunity except to the extent provided by enactment, since an insurance company would demand a premium designed to protect against the indefinite area of liability that exists under a statute imposing liability with specified exceptions. [N.J.S.A. 59:2-1 Task Force Comment.]

Absent a clear and specific indication that the Legislature intended to impose a liability that could have such a radical impact on the fiscal affairs of public entities, we conclude that the Legislature desired the Miehl immunity to remain intact. As the Legislature itself stated when it passed the Act, “[s]hould further study in future years demonstrate that additional liability of public entities is justified, such liability may then be imposed by the Legislature within carefully drafted limits.” Id.

In reaching this conclusion, we view the common-law immunity for the snow-removal activities of public entities to be among the most significant immunities recognized by judicial decision prior to the adoption of the Act. By preserving common-law immunities not inconsistent with the Act, the Legislature reflected its intention to preserve certain common-law immunities while abrogating others. We acknowledge that it is possible to construe the Act to determine that the Miehl immunity is not consistent with the provisions of the Act that impose liability on public entities. In our view, that interpretation is a strained one. We find it difficult to conceive that the Legislature would have dealt so imprecisely with an immunity that has such significance for New Jersey’s state, county, and municipal governments. We conclude that the overwhelming likelihood is that if the Legislature had intended to abrogate Miehl, it would have done so expressly. If we have misconstrued the legislative intent in this respect, it will be a simple matter for the Legislature to make its intention plain. We are persuaded, *415however, that the Legislature was cognizant of the Miehl immunity and had no intention to abrogate it.7

Ill

An indulgent reading of the pleadings and affidavits submitted to the Law Division in connection with the State’s summary judgment motion could have suggested the existence of a cause of action under N.J.S.A. 59:4-4 that is different from a claim based on negligent snow-removal activity. That section of the Act imposes liability on a public entity for its failure to provide “emergency signals * * * or other devices if * * * necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.” The Comment to this section states that “liability may exist for the failure on the part of a public entity to provide an emergency warning signal or device when a condition exists constituting a ‘trap’ to a person using a street or highway with due care.”

This theory of liability was neither alleged specifically in the complaint nor advanced in the briefs or arguments of *416counsel, although defendants’ failure to provide warning devices was referred to in plaintiffs’ answers to interrogatories.8 We observe further that since virtually every snowfall creates hazardous road conditions, the duty to warn addressed by N.J.S.A. 59:4-4, applied in the context of a snowstorm, concerns only extraordinary conditions that are qualitatively different from those conditions that would be “reasonably apparent to” or “anticipated by” a careful motorist driving in a snowstorm. See Meta v. Township of Cherry Hill, 152 N.J.Super. 228, 234 (App.Div.1977).

It is self-evident that unanticipated events in the course of a public entity’s snow-removal activities might result in hazardous conditions different in character from the dangers ordinarily expected from a snowstorm. An illustration would be the abandonment of a stalled vehicle, used for snowplowing, in the path of highway traffic. A public entity that was informed about the stalled vehicle but failed to warn motorists of the hazard it presented should not be immunized from liability by virtue of our holding in Miehl. Similarly, if snowplowing activity results in the artificial creation of a snowbank that makes a highway impassable, under certain extreme circumstances a duty to warn could arise the breach of which would not be protected by the Miehl immunity. Such failure to warn would necessarily involve palpably unreasonable conduct by a public entity, see Comment to N.J.S.A. 59:4-4, that was separate and distinct from its snow-removal function. Other*417wise, actions pleaded under N.J.S.A. 59:4-4 could be used to circumvent the general immunity for snow-removal activities that was established in Miehl v. Darpino and preserved by the Act.

On the scant record before us we cannot discern whether such a cause of action exists. The stark allegation in the answer to interrogatories is that the lane “ended due to a snowbank” causing the truck in which plaintiff was a passenger to turn over. In view of the permissive standard that governs a trial court’s disposition of motions for summary judgment, Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, 327 (1985), we will not preclude the plaintiffs from amending their complaint to plead specifically a claim for relief based on N.J.S.A. 59:4-4.

Accordingly, the judgment of the Appellate Division is reversed. Plaintiffs are granted leave to file an amended complaint within thirty days to allege a claim for relief based on N.J.S.A. 59:4-4.

Justice Handler, concurring in part and dissenting in part, suggests that the hazard created in Miehl was much less severe than the hazard created by the public employees in this case "who created and left a mound of snow in the middle of a travelled highway.” Post at 419. The validity of that observation would obviously depend on the quality of plaintiffs’ proofs. The allegations in the complaint and the answers to interrogatories are singularly uninformative concerning the magnitude of the hazard posed by the "snowbank” on Route 21.

Justice Handler asserts that “Miehl intended to immunize conduct that * ** * is intrinsically discretionary." Post at 420. We read Miehl, however, as rejecting the discretionary-ministerial distinction and adopting a broad-based immunity for snow-removal activities. As the Court stated, "there are certain kinds of acts or omissions of government, no matter how they are categorized, -defined, or labelled or how governmental immunity from suit is to be regarded, which should not give rise to tort liability.” Miehl, supra, 53 N.J. at 54 (quoting Hoy v. Capelli, 48 N.J. 81, 87 (1968)).

The Attorney General actually began this study in 1966 pursuant to statutory command. See N.J.S.A. 52:17B-4.1. Specifically reacting to Willis and P.T. & *407£., however, Attorney General Kugler stated that "a more intensive examination of the subject was required." Report of the Attorney General's Task Force on Sovereign Immunity (1972) (Task Force Report), at 1.

The Comments following certain sections of the statute were taken from the Report of the Attorney General’s Task Force on Sovereign Immunity—1972, and accompanied the Act during its consideration by the Legislature. They have the precedential weight and value of legislative history. See Costa v. Josey, 83 N.J. 49, 61 n. 1 (1980) (Clifford, J., dissenting).

We have held that the determination of palpable unreasonableness is a jury function. Brown v. Brown, 86 N.J. 565, 580 (1981).

Miehl is cited twice in the Comments attending the Act. In the Comment to N.J.S.A. 59:2-3, Miehl is listed in a string citation that follows an assertion that subsection 2-3b specifies an absolute immunity for certain high-level decisions calling for the exercise of official judgment. Somewhat more significantly, the Comment to section 4-2, under which plaintiff seeks to hold public entities liable here, cites Miehl following the statement that "[t]his provision comports generally with the principles of liability established by the New Jersey courts for public entities in their capacity as landowners.” From the context and placement of these citations, we cannot discern precisely what the Legislature meant, but the references at least reveal the drafters’ knowledge of the Miehl holding.

Justice Handler acknowledges that "the Miehl immunity survived the enactment of the Tort Claims Act in some form," post at 422, but contends that the immunity is mutable and “subject to judicial modification.” Post at 423. We do not disagree in principle that under unique circumstances the immunity for snow removal activities could be construed to permit a cause of action against a public entity for conduct so egregious that its insulation from liability would be inconsistent with the public policy that the Miehl immunity was intended to foster. We are not confronted with allegations of that nature in this case. Rather, the pleadings and interrogatories read most indulgently disclose the allegation that a “snowbank” of indeterminate size and height obstructed Route 21 due to negligent snow-removal activity. In our view, these allegations do not warrant consideration of the outer limits of the Miehl immunity. To the extent they may suggest culpable conduct, unrelated to snow removal activity, consisting of a palpably unreasonable failure to warn of a dangerous condition, that cause of action could be maintained notwithstanding the Miehl immunity. See infra at 415 to 417.

Plaintiffs’ answer to interrogatory 66 stated the following:

Plaintiff contends that the careless, negligence [sic] and palpably unreasonable actions of the defendants which resulted in the dangerous and hazardous condition aforedescribed being created, permitted and allowed to exist by the defendants herein and/or their agents, servants or employees was furthered by the fact that the defendants failed to provide any emergency signals, signs, markings or other warnings to alert traffic that the right lane on Route 21 would end suddenly without warning due to a snowbank caused by the improper, dangerous and inadequate snow removal procedures taken by defendants herein.