Goldberg v. Housing Authority of City of Newark

• Decision Date: 01 November 1961
• Docket Number: No. A--143,A--143
• Citation: 70 N.J.Super. 245,175 A.2d 433
• Parties: Harry GOLDBERG, Plaintiff-Respondent, v. HOUSING AUTHORITY OF the CITY OF NEWARK, a body politic and corporate of New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 245

70 N.J.Super. 245

175 A.2d 433

Harry GOLDBERG, Plaintiff-Respondent, v. HOUSING AUTHORITY OF the CITY OF NEWARK, a body politic and corporate of New Jersey, Defendant-Appellant.

No. A--143.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 8, 1961.

Decided Nov. 1, 1961.

John J. Gaffey, Newark, for appellant (Gaffey & Webb, Newark, attorneys; H. Curtis Meanor, Jersey City, of counsel).

Seymour B. Jacobs, Newark, for respondent (Balk & Jacobs, Newark, attorneys).

Before Judges PRICE, SULLIVAN and LEONARD.

The opinion of the court was delivered by

SULLIVAN, J.A.D.

Plaintiff was assaulted and robbed by unknown and unidentified persons while making deliveries of milk in one of the buildings of the Reverend William P. Hayes homes, a housing project operated by defendant Housing Authority. He sued for damages, charging that defendant had notice of similar occurrences on previous occasions but had failed to take proper measures to keep the premises safe for persons lawfully using the same. At the conclusion of the trial the jury rendered a verdict in favor of plaintiff for $6,000, and judgment was entered accordingly. Defendant appeals, charging numerous grounds therefor.

The project in question is a large development operated by defendant, a local housing authority, created pursuant to the provisions of N.J.S.A. 55:14A--1 et seq. It extends for several city blocks, with only one public street running through a portion thereof. It has ten residential buildings, each of which is 12 stories in height, and a community and boiler-house building. The project is 19.15 acres in size, has accommodations for 1,458 families, and in December 1957 its population was between 5,300 and 6,000 persons. Each building has two entrances which are kept open and unlocked at all times. No attendants or doormen are provided to control access to the buildings. There are numerous walks, play areas and parking areas throughout the project.

Plaintiff, a milkman, had been making deliveries to the project since 1954. His status as an invitee on the premises is unchallenged. On December 24, 1957, the day in question, at about one-thirty in the afternoon he was attending to his customers in the project and had gone to the twelfth floor of one of the buildings. There are two self-service elevators in each building. After making a delivery on the twelfth floor plaintiff entered the elevator and pressed the button for the fourth floor. There was no one else on the elevator at the time. The elevator descended a number of floors, and then stopped, and plaintiff got off thinking he was at the fourth floor. Just then two men got on the elevator. Plaintiff immediately realized that he was on the sixth floor and got back in the elevator which now had the two other men on it. They proceeded to attack plaintiff with a pipe. Plaintiff was severely beaten and robbed. His two assailants ran off and have never been identified.

It was shown that, at the time of the attack on plaintiff, the project employed three private policemen who worked in shifts patrolling the project from four o'clock in the afternoon until eight o'clock in the morning. During the hours between eight o'clock in the morning and four o'clock in the afternoon there was no private policeman on duty in the project. A Newark police officer was assigned to patrol the streets and walks on the project grounds. He came on duty about 11 A.M., worked an eight-hour shift, and was relieved by another officer who was on duty until approximately 3 A.M. These municipal police officers were not allowed to go into the project buildings unless called.

Plaintiff also showed that prior to December 24, 1957 the defendant Authority had received numerous reports of crimes and acts of violence being committed in and about the Hayes project. The official minutes of meetings of defendant Authority held on June 12, 1957, July 10, 1957, August 14, 1957, September 11, 1957, and October 16, 1957 record that the matters of crime in the Newark housing projects, the alleged lack of adequate policing and the need for more 'Special Police' were discussed at such meetings.

Defendant in its amended answer to the complaint set up by way of separate defenses that defendant was engaged in 'governmental functions' and was guilty of 'no active wrongdoing.'

Prior to trial, the court, on plaintiff's motion, struck said separate defenses, holding that defendant Housing Authority enjoyed no governmental immunity from a suit for negligence, and that plaintiff was not required to prove active wrongdoing on defendant's part. In its opinion the court stated that the function carried on by the Housing Authority was proprietary rather than governmental.

Defendant's first point on appeal is that these separate defenses were improperly stricken prior to trial and that it should have been afforded the opportunity to introduce evidence in support of these defenses. Ancillary thereto, defendant argues that the question whether it was conducting a proprietary operation or was engaged in governmental functions cannot be determined as a matter of law upon the pleadings.

The doctrine of immunity of municipal governments from liability for negligence is a controversial one. Prosser, Torts, (2d ed. 1955) pp. 774--5; 2 Harper and James, Law of Torts, pp. 1622--23. A comprehensive discussion of this area of the law and the inequalities of the doctrine has been set forth in Cloyes v. Delaware Tp., 23 N.J. 324, 129 A.2d 1, 57 A.L.R.2d 1327 (1957). Authorities uniformly criticize the rule. Prosser, Torts (2d ed. 1955), p. 774; 2 Harper and James, The Law of Torts (1956), sec. 29.6.

The immunity is confined to traditional governmental functions and courts have been quick to find municipal activities to be proprietary rather than governmental, thus avoiding the impact of the doctrine. Cloyes v. Delaware Tp. supra; Stringfield v. City of Hackensack, 68 N.J.Super. 38, 171 A.2d 361 (App.Div.1961). In this State the doctrine has been limited also by a judicial readiness to find active wrongdoing on the part of the government, in which case the immunity does not apply. Hartman v. City of Brigantine, 23 N.J. 530, 129 A.2d 876 (1957); Hayden v. Curley, 34 N.J. 420, 169 A.2d 809 (1961).

In recent years we have witnessed the enactment of much legislation providing for the creation of independent 'Authorities' to administer the increasing volume of local governmental activities. To mention a few, Incinerator Authorities authorized under N.J.S.A. 40:66A--1 et seq.; Local Housing Authorities (including the present defendant) authorized under N.J.S.A. 55:14A--1 et seq.; Parking Authorities under N.J.S.A. 40:11A--1 et seq.; Sewerage Authorities under N.J.S.A. 40:14A--1 et seq.

The broadened scope of governmental activity through authorities created under these various statutes has generated a large number of suits and claims for damages by persons who have suffered injury allegedly as the result of negligent operation by such authorities. This, in turn, has raised the plaguing question whether the particular Authority activity should be considered a truly governmental function and thereby immune from liability for negligence save for active wrongdoing, or whether it should be classified as proprietary in which case the immunity does not apply. Compare Hudges v. Housing Authority of Atlantic City, 21 N.J.Super. 167, 91 A.2d 88 (App.Div.1952), with Casale v. Housing Authority of City of Newark, 42 N.J.Super. 52, 125 A.2d 895 (App.Div.1956); Nary v. Dover Park Authority, 58 N.J.Super. 222, 156 A.2d 42 (App.Div.1959). See Cloyes v. Delaware Tp., 23 N.J. 324 (1957), supra at p. 335, 129 A.2d 1, 57 A.L.R.2d 1327. Cf. Springfield v. City of Hackensack, 68 N.J.Super. 38, 171 A.2d 361 (App.Div.1961), supra. See also Annotation, 'Suability, and liability, for torts of public housing authority,' 61 A.L.R.2d 1246.

The problem, however, can be approached from another direction. Defendant Authority, although created by municipal ordinance and admittedly an agency and instrumentality of the municipality creating it, is provided for by statute and has such powers and duties, and is subject to such liabilities, as the Legislature may provide.

In a suit against the New Jersey Turnpike Authority for the alleged negligent operation of Authority facilities, our Supreme Court held that the Turnpike Authority is an agency of the State and is entitled to the protection of the rule of sovereign immunity, so that an action for negligence will not lie against such an agency unless there has been a waiver of immunity. However, in considering the provisions of the statute under which the New Jersey Turnpike Authority was created, the court found a legislative intent 'to create an independent body which would be responsible for negligently inflicted wrongs.' McCabe v. N.J. Turnpike Auth., 35 N.J. 26, 34, 170 A.2d 810, 814 (1961). In reaching this result the Supreme Court noted that the Turnpike Authority was an independent corporate entity; that it had the power to sue and be sued in its own name, to issue bonds payable from tolls, to acquire, hold and dispose of real property, to exercise the power of eminent domain and to fix tolls. The court also noted that the Authority's bond resolution required it to carry a public liability insurance policy providing for blanket coverage of claims arising from turnpike operations. All of these factors, in the court's opinion, taken together compelled the conclusion that the Legislature intended to create an independent body which would be responsible for negligently inflicted wrongs.

In McCabe, of course, the rule of sovereign immunity was involved since an agency of the State was being sued, whereas...