Cloyes v. Delaware Tp.Cloyes v. Delaware Tp.
FREUND, J.A.D.
The plaintiff, Philip W. Cloyes, is the father of the decedent, Philip Colin Cloyes, and sues under
On June 23, 1954 at about 6 P.M the decedent, a boy about three years of age, was observed by his mother playing with two other children in the back yard of the adjoining house. Within eight minutes of the last time she observed him the boy had disappeared. Apparently he crossed over onto the township land, entered the immediate area of the sewage plant and fell into the open sedimentation tank. When found in the tank a short time after his absence was discovered, he was dead from drowning. There was no eye witness of how the boy gained access to the plant grounds which admittedly were enclosed by a fence erected in 1952 in accordance with accepted standards. However, there was an opening of between 16 and 18 inches under a gate in the fence, and it is reasonably inferable that the boy crawled through the opening under the gate.
There is testimony by the decedent‘s father, supported by that of neighbors, that the children of the area frequently played in and around the plant grounds. The father testified that about a month before his son‘s death he had complained to the defendant Thomas Walton, the Township Director of Public Affairs, that the odors emanating from the sewage plant were obnoxious, and that for children to play in such close proximity to the open sedimentation tank was dangerous, particularly since small children could crawl through the opening under the fence. He also testified that to safeguard his son he had constructed a fence around his own property, which fence was about 150 feet distant from the plant fence. However, he admitted that the gate was not kept locked.
Since 1949 the disposal plant in question had not been supported by general taxation of all the members of the community, but had been operated as a self-liquidating
At the conclusion of the evidence the trial court charged the jury that, as a matter of law, the defendants’ operation of the sewage disposal plant was a governmental function and, hence, to be held accountable for the death of the plaintiff‘s decedent it must have been guilty of “active wrongdoing” which proximately caused the infant‘s death. It also charged in effect that the jury might properly take into consideration the failure of the decedent‘s father to take adequate precautions to protect the decedent from harm as an intervening responsible cause which would absolve the defendant from liability on the theory that there was no proximate causal connection between the defendant‘s negligent act and the death of the child.
The jury returned a verdict of no cause of action. The plaintiff appeals, alleging as error the above-stated portions of the trial court‘s charge.
It is now unquestioned that a municipal corporation in the performance of a governmental function carries out a public duty and, in the absence of statutory authority directing otherwise, is immune from responsibility for negligence in the performance of such public duty except upon proof of active wrongdoing or positive misfeasance chargeable to it. Kress v. City of Newark, 8 N.J. 562, 573 (1952). See Board of Chosen Freeholders of Sussex County v. Strader, 18 N.J.L. 108 (Sup. Ct. 1840) and Hart v. Board of Chosen Freeholders of Union County, 57 N.J.L. 90 (Sup. Ct. 1894). As to what constitutes active wrongdoing, see Allas v. Borough of Rumson, 115 N.J.L. 593 (E. & A. 1935) or positive misfeasance, see Milstrey v. Hackensack, 6 N.J. 400, 408 (1951).
The factors which have been considered in determining whether a particular function is proprietary have been: whether the function could be performed as well by a private corporation, Karpenski v. Incorporated Borough of South River, 83 N.J.L. 149 (Sup. Ct. 1912), reversed on other grounds 85 N.J.L. 208 (E. & A. 1913); whether the municipality derives a profit or merely some benefit or advantage from operation of the enterprise, Olesiewicz v. City of Camden, supra; whether the function concerns the sale of a commodity or service, establishing the relationship of seller and purchaser as between the municipality and the consumer, Lehigh Valley R. Co. v. Jersey City, 103 N.J.L. 574 (Sup. Ct. 1927), affirmed 104 N.J.L. 437 (E. & A. 1928); Martin v. City of Asbury Park, supra. In the absence of these factors, the function is considered governmental, Callan v. City of Passaic, 104 N.J.L. 643 (E. & A. 1928); Vickers v. City of Camden, 122 N.J.L. 14 (E. & A. 1938); Bengivenga v. City of Plainfield, 128 N.J.L. 418 (E. & A. 1942); Kress v. City of Newark, supra.
Thus, it has been held to be a proprietary function where the municipality operated a bathing pavilion, Martin v. City of Asbury Park, supra; supplied water to its inhabitants, Lehigh Valley R. Co. v. Jersey City, supra; Harper v. City
Ordinarily, governmental functions of a municipality are available to all taxpayers, and whether or not the specific function is utilized is not a determinant. Schools are conceded to be a municipal function devolving from a public duty, supported by all taxpayers of the municipality, whether or not they have children to avail themselves of the educational facilities provided. That is the idea of public duty, duty to all, whether or not utilized, and the situation is similar as to police and fire protection, whether or not an individual property owner ever calls the police or the fire department. However, here only those who actually use the service pay for it; it is not general and available to the municipal public at large — a consideration to be weighed in determining whether the function is proprietary rather than governmental, particularly when coupled with the fact that a service of this nature could just as well be performed by a private corporation and that it results in a seller-consumer relationship between the municipality and those using the service.
McQuillin indicates that other jurisdictions are in conflict as to whether the operation of a sewage disposal plant is a governmental or proprietary function. He states that “the prevailing view seems to be that a municipality may be held liable for death or injury resulting from neglect or other tort in the operation of such a plant.” 18 McQuillin, Municipal Corporations (3d ed.), § 53.131, p. 512. This precise question has been adjudicated in New Jersey in Morgenweck v. Egg Harbor City, 106 N.J.L. 141 (E. & A. 1929). There, the defendant municipality was alleged to be liable to the plaintiffs for injuries resulting from one of the defendant‘s trucks used in the operation of its sewage
“* * * it is quite clear that the defendant * * * was engaged in conducting the business of operating a sewerage plant for profit, and it is unimportant whether or not the business yielded a profit to the defendant * * * the potent factor which must control is the uncontroverted fact that the municipality was engaged in business, and hence answerable for the negligent act or acts of its servants in the conduct of such business, as an individual would be.”
We deem it significant that in the Morgenweck case, although the sewage plant might have been intended to be operated for profit, that factor was held not to be determinative of whether the function was proprietary or governmental, relying in great measure upon the decision in the Olesiewicz v. City of Camden case, supra, that “some special benefit or advantage” inuring to the municipality is an essential ingredient in the decision.
In Ennever v. Borough of Bergenfield, 105 N.J.L. 419 (E. & A. 1928), there is dictum to the effect that the operation of a sewage disposal plant is a governmental function, but that case is not controlling here. Its essential facts differ from both the Morgenweck case and the instant one. There the case turned on the question of the amount of depreciation in value of adjacent lands resulting from the construction of the plant. There was no proof that any charge for service was made or that any special benefit accrued to the municipality, nor of any of the other factors usually considered essential to a proprietary function.
It is true that many municipalities furnish sewage disposal service. Where it is available to all and its cost of operation paid out of general taxes, it may well be a governmental or public function. However, here the service of the sewage disposal units is available only to those who pay the rental fee. The municipality operates its sewage disposal facilities as a self-liquidating utility, the income of which is used to pay current operating expenses and charges on its outstanding indebtedness. It is inconceivable that any private corporation would take on the operation of such a
The distinction between governmental and proprietary functions has persisted and been preserved in our highest courts, as exemplified by Tomlin v. Hildreth, 65 N.J.L. 438 (Sup. Ct. 1900), and the Allas, Milstrey, Kress and Kelley cases cited above; and see Weintraub and Conford, “Tort Liability of Municipalities in New Jersey,” 3 Mercer Beasley L. Rev. 142 (1934). We are bound by this higher judicial authority, Osback v. Lyndhurst Township, 7 N.J. 371, 376 (1951).
We cannot, however, pass by the matter without voicing our own doubt as to the necessity or advisability of pursuing such a distinction under the social and economic conditions that obtain today. The validity of the distinction has been questioned by legal authority. See Prosser, Law of Torts (2d ed.), § 109 et seq., p. 770 et seq., and particularly at p. 775, n. 42. The modern trend is to broaden the base of tort liability of municipal government for negligence instead of narrowly cribbing and confining it within the bounds of artificial distinctions, and this on the theory that injury to the person or property of the individual citizen because of the tortious conduct of municipal agents or employees should be compensated for by the municipality, and not borne by the injured party, municipal government being better able to bear the loss and to spread its cost through taxation. However, since the distinction between governmental and proprietary functions is embedded in our law, we must perforce proceed to our decision on that basis.
The charge is subject to further objection to that portion whereby the jury was permitted to take into consideration on the question of the defendants’ liability the alleged failure of the plaintiff, the decedent‘s father, to take adequate precautions to guard against a mishap to his child. It is settled that contributory negligence on the part of the surviving next-of-kin of a decedent is not imputable to the decedent and will not defeat an action under the Death Act. Bastedo v. Frailey, 109 N.J.L. 390 (E. & A. 1932). The effect of the trial court‘s instruction was to impute to the father as representative of the decedent‘s next-of-kin any contributory negligence which might be attributable to him as an individual. This was error.
For the reasons herein stated the judgment is reversed and the cause remanded for a new trial on all issues.
CONFORD, J.A.D. (concurring).
I am in agreement with the conclusion of the majority that the judgment entered in favor of the defendants should be reversed and the cause remanded for a new trial. My concurrence rests,
I share the doubts expressed by my brethren concerning the wisdom of existing concepts of municipal tort liability. There is considerable basis for misgiving as to the suitability in present-day society of the traditional distinction between public or governmental functions of municipalities, on the one hand, and so-called proprietary, private or corporate functions, on the other, as a criterion for differentiating the degree of municipal liability. The impact of carelessness, negligence or misfeasance by municipal agents and employees upon others continuously expands as local governments become charged with a constantly broadening area of governmental responsibility. Authoritative students of the subject are coming increasingly to believe that the losses to individuals due to tortious conduct of any kind by municipal functionaries should fall upon the municipality, rather than remain with the injured individual, as a legitimate cost of the administration of government. See Prosser, Law of Torts (2d ed. 1955), § 109, pp. 774, 775, and the numerous treatments of the subject cited in footnote 42, at p. 775. See also 18 McQuillin, Municipal Corporations (3d ed. 1950), § 53.24, p. 205. There would appear to be no rational social justification for a differentiation in degree of liability, for example, stemming from the circumstance that the municipality was supplying water or electricity, held to be proprietary functions, Fay v. City of Trenton, 126 N.J.L. 52 (E. & A. 1941); Karpenski v. Incorporated Borough of South River, 83 N.J.L. 149 (Sup. Ct. 1912), rather than police and fire
As stated in one of the earliest New Jersey cases to make the distinction, Tomlin v. Hildreth, 65 N.J.L. 438, 441, 442 (Sup. Ct. 1900):
“It will thus appear that the liability of a municipal, corporation for the willful or negligent act of its agents or servants will depend upon the question of whether they are its agents or servants for the performance of a public duty imposed by law, or merely for the carrying out of its private duties, which are for its special benefit or advantage. If the relation is of the former class the municipality is not liable, but if of the latter class it is.”
Iteration of variants of this formula will be found in our subsequent cases down to the present time. Allas v. Borough of Rumson, 115 N.J.L. 593, 594 (E. & A. 1935); Kress v. City of Newark, 8 N.J. 562, 572 (1952). The difficulty of applying these tests of liability is exemplified by the close divisions of the Supreme Court in the Milstrey and Kress cases, supra, and is attested by the perplexities of generations of lawyers and judges in attempting to apply them with some degree of consistency in theory and result.
Yet so long as these rules continue to be applied by our court of highest jurisdiction and are left undisturbed by the Legislature, it is our duty to follow them. In determining whether a particular activity is to be classified as governmental or private, however, no consideration based upon the reaction of the court to the wisdom of the degree of liability implicated by the determination ought to influence the judicial conclusion. Cf. Prosser, op. cit. supra, at p. 775. The criteria heretofore approved by our courts of highest appellate jurisdiction should be applied in the light of the rationale of the rule. McQuillin formulates it, in terms of its application to quasi-public corporations, as follows:
“The immunity from liability of quasi-public corporations is generally placed upon the ground of their involuntary and public character. They are usually treated as public or state agencies, and their duties are ordinarily wholly governmental. They exercise the greater part of their functions as agencies of the state merely, and are created for purposes of public policy, and hence the general rule that they are not responsible for the neglect of duties enjoined on them, unless the action is given by statute. * * *” Op. cit., supra, § 53.05, p. 151.
Other explanations are that the municipality derives no profit from the exercise of governmental functions which are solely for the public benefit; that cities cannot carry on their governments if money raised by taxation for public use is diverted to making good the torts of employees and
“* * * that the corporation is engaged in the performance of a public service in which it has no particular interest and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed in pursuance of a duty imposed by law for the general welfare of the inhabitants and the community, * * *” Condict v. Mayor, etc., of Jersey City, 46 N.J.L. 157, 160 (E. & A. 1884).
This philosophy persists in the references in our cases to immunity for negligence in the performance “of a public duty laid upon it [the corporate municipal body] by law,” Milstrey v. City of Hackensack, supra (6 N.J., at page 408), otherwise stated, “for the negligence of its officers or agents in the performance of a public duty imposed on it by law,” Allas v. Borough of Rumson, supra (115 N.J.L., at page 594). It is obvious, however, that this language cannot be taken literally, since not all municipal functions which commonly give rise to tortious injuries are founded in statutory mandates to municipalities, many being undertaken pursuant to permissive legislation. For example, in Kress v. City of Newark, supra, the question involved was negligence in the operation of a municipal hospital. The hospital of the defendant city was established and maintained by it pursuant to a permissive statute, yet “the maintenance of a hospital by a municipality for the purpose of conserving public health, treating indigent patients and applying money receipts to expenses” was held to be the exercise of a governmental rather than a proprietary function (8 N.J., at pages 572, 573). It is thus clear that the case at hand cannot be decided by the test as to whether the municipality was required, rather than merely permitted, to supply the sewage service.
In the cause sub judice the status of a proprietary rather than governmental function is applied by the majority to
“It is hereby declared to be in the public interest and to be the policy of the State to foster and promote by all reasonable means the relief of waters in and bordering the State from pollution and thus to reduce and ultimately abate the menace to the public health resulting from such pollution. It is the purpose and object of this act to further and implement such policy by
(1) Authorizing counties, or municipalities either separately or in combination with other municipalities, by means and through the agency of a sewerage authority, to acquire, construct, maintain, operate or improve works for the collection, treatment, purification or disposal of sewage or other wastes; * * *”
Section 7 of the 1946 act provides that “every sewerage authority shall be a public body politic and corporate constituting a political subdivision of the State established as an instrumentality exercising public and essential governmental functions to provide for the public health and welfare * * *.” (Emphasis added.) It is patent that the defendant municipality is doing, and in the same way, exactly what such a sewerage authority could be authorized to do for it under that act.
The characterization by the statute of this kind of function as “public and essential governmental” appears to me aptly descriptive of defendant‘s operations, as described in the record. The proofs in the present case indicate that when the Colwick plant was enlarged and improved in 1953 and 1954 the schedule of rentals to users of the service was fixed upon a basis which would yield no more revenue than sufficient to pay the cost of current operation and the charges for
The construction, operation and maintenance of sewer systems, generally, without distinguishing sanitary sewers from storm sewers, has traditionally and uniformly been regarded in this State as a public governmental function whenever the question of tort liability of a municipality has arisen. Jersey City v. Kiernan, 50 N.J.L. 246 (Sup. Ct. 1888); Waters v. City of Newark, 56 N.J.L. 361 (Sup. Ct. 1894), affirmed 57 N.J.L. 456 (E. & A. 1894); Harrington v. Woodbridge, 70 N.J.L. 28 (Sup. Ct. 1903); Murphy v. Borough of Atlantic Highlands, 77 N.J.L. 452 (Sup. Ct. 1909); Garrison v. Borough of Fort Lee, 92 N.J.L. 566 (E. & A. 1919); Ennever v. Borough of Bergenfield, 105 N.J.L. 419 (E. & A. 1929); Bengivenga v. Plainfield, 128 N.J.L. 418, 420 (E. & A. 1942). It can hardly be disputed that the collection and disposal of sewage at large in a sanitary manner is a function vital to the general public health, well-being and welfare, peculiarly adapted to administration by a local public agency, and seldom, if ever, conducted as a business by private firms. It should follow by ordinary criteria that the performance thereof by a public body constitutes the execution of a function inherently public or governmental in character. In the Ennever case, supra, the Court of Errors and Appeals specifically stated that the defendant municipality was “performing a public duty in constructing and operating” a sewer and disposal plant but sustained a holding of liability on the basis of the commission of an active wrong (105 N.J.L., at page 420). In other jurisdictions there is a tendency to find municipalities liable for torts in the operation of sewage disposal plants, but the majority of the cases recognize the public nature of the service. 18 McQuillin, op. cit., supra, § 53.131, pp. 512, 513.
The majority finds the decision in Morganweck v. Egg Harbor City, 106 N.J.L. 141 (E. & A. 1949), to control the present case. In that case the plaintiffs brought an action for injuries resulting from the negligent operation of a municipal truck used in connection with a municipal sewage disposal plant. The opinion of the court stated that the action was founded upon the allegation in the complaint that the defendant municipality “was carrying on a business of operating a sewer system as and for a means of revenue” (106 N.J.L., at page 142) and indicated that the testimony showed that the defendant “was engaged in conducting the business of operating a sewerage plant for profit.” The court held that it was “unimportant” whether or not the business yielded a profit to the defendant; that the controlling factor was “that the municipality was engaged in
While I concede that acceptance of my view would place the municipal operation in question in a category of more restricted tort liability than that attendant upon the conclusion of the majority, I do not believe the long-range development of the law in this field along salutary lines will be served by a strained interpretation of the concept of proprietary and business enterprises of municipal corporations. Cf. Prosser, op. cit., supra, at p. 775. On the contrary, it would seem to me but a crutch to sustain a weak doctrine and to delay the day of complete reappraisal.