Wall v. Hudson County Park Commission

• Decision Date: 17 September 1963
• Docket Number: No. A--309,A--309
• Citation: 193 A.2d 857,80 N.J.Super. 372
• Parties: Eugene M. WALL, Guardian ad Litem of Daniel Wall, an infant, and Eugene M. Wall, individually, Plaintiffs-Respondents, v. The HUDSON COUNTY PARK COMMISSION, a body politic, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 372

80 N.J.Super. 372

193 A.2d 857

Eugene M. WALL, Guardian ad Litem of Daniel Wall, an infant and Eugene M. Wall, individually, Plaintiffs-Respondents, v. The HUDSON COUNTY PARK COMMISSION, a body politic Defendant-Appellant.

No. A--309.

Superior Court of New Jersey Appellate Division.

Argued June 17, 1963.

Decided Sept. 17, 1963.

Robert E. Tarleton, Jersey City, for appellant (Beggans & Keale, Jersey City, attorneys, James P. Beggans, Jersey City, of counsel, Robert E. Tarleton, Jersey City, on the brief).

John J. Bracken, Newark, for respondents (Bracken & Walsh, Newark, attorneys, John J. Bracken, Newark, of counsel).

Before Judges SULLIVAN, LEWIS and LABRECQUE.

LABRECQUE, J.S.C. (temporarily assigned).

This court granted leave to appeal from an order of the Law Division denying the motion of defendant Hudson County Park Commission for summary judgment. The question involved is whether R.S. 40:9--2, N.J.S.A. affords immunity to defendant commission for injuries sustained by the infant plaintiff from a fire which had been ignited on defendant's property by one of its employees for the purpose of burning refuse thereon.

The provisions of R.S. 40:9--2, N.J.S.A. are as follows:

'No municipality or county shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding.'

For the purpose of the motion for summary judgment the trial court was required to consider all well pleaded facts as true. DeMarco v. Estlow, 18 N.J.Super. 30, 86 A.2d 446 (Ch.Div.1952), affirmed 21 N.J.Super. 356, 91 A.2d 272 (App.Div.1952). From the complaint and pretrial order we glean that on April 29, 1960 the infant plaintiff, Daniel Wall, aged five, was playing in Mercer Park, a public park 6.4 acres in area operated and controlled by defendant Hudson County Park Commission. He resided with his parents in the adjacent Currie Woods Housing Project. On the day in question one of defendant's employees had started a fire for the purpose of disposing of some burnable waste and had thereafter departed, leaving the same unguarded. Daniel came upon the location of the fire and while playing suffered burns which resulted in the amputation of one of his legs. The present suit seeks damages for his injuries. His father joins for expenses and loss of services.

The single issue presented is whether, as defendant asserts, R.S. 40:9--2, N.J.S.A. exempts a county park commission from liability for injury to the person arising from the use of public grounds under its jurisdiction. If it does, it is contended that the Law Division had no alternative but to grant defendant's motion to dismiss the action, regardless of whether the injury resulted from mere negligence or from active wrongdoing. On behalf of plaintiffs it is urged that the statute does not cover operations of a park commission established under the County Park Act, originally L.1895, c. 91, now R.S. 40:37--96 et seq., N.J.S.A. It is also contended that the statute is inapplicable since the action arose out of the performance of a proprietary rather than a governmental function. Additionally, the injuries are said not to have resulted from the Use of any public grounds, a requirement of the statute in question. See Estelle v. Board of Education of Red Bank, 26 N.J.Super. 9, 19, 97 A.2d 1 (App.Div.1953); Schwartz v. Stockton, 32 N.J. 141, 153, 160 A.2d 1 (1960).

As originally enacted, the statute in question had also included school districts. In 1937 the present form was adopted and the liability of school districts was made the subject of a separate enactment. R.S. 18:5--30, N.J.S.A. The effect of the statute upon our case law has been comprehensively dealt with by our Supreme Court in Schwartz v. Stockton, supra, and by this court in Weeks v. Newark, 62 N.J.Super. 166, 163 A.2d 314 (App.Div.1960) affirmed per curiam 34 N.J. 250, 168 A.2d 11 (1961). Substantially, it has been held that the statute bars liability if the grounds, buildings or structures from the use of which the injury resulted are devoted to a governmental as distinguished from a proprietary function or activity, and this regardless of the presence or absence of active wrongdoing. No reported case appears to have passed upon the question of the applicability of the statute to park commissions established under the County Park Act.

In the absence of the statutory exemption provided by R.S. 40:9--2, N.J.S.A., a county or municipality may be held liable in damages for negligence in the performance of a proprietary function and for active wrongdoing or positive misfeasance in the performance of a governmental function. Martin v. Asbury Park, 111 N.J.L. 364, 168 A. 612 (E. & A. 1933); Olesiewicz v. Camden, 100 N.J.L. 336, 126 A. 317 (E. & A. 1924); Allas v. Rumson, 115 N.J.L. 593, 181 A. 175, 102 A.L.R. 648 (E. & A. 1935); Milstrey v. Hackensack, 6 N.J. 400, 79 A.2d 37 (1951); Hartman v. Brigantine, 23 N.J. 530, 129 A.2d 876 (1957); Becker v. Newark, 72 N.J.Super. 355, 178 A.2d 364 (App.Div.1962); Hammond v. County of Monmouth, 117 N.J.L. 11, 186 A. 452 (Sup.Ct.1936); Selph v. Morristown, 195 A. 862, 16 N.J.Misc. 19 (Sup.Ct.1938); 2 Harper & James, The Law of Torts, §§ 29.6 and 29.7 (1956).

The statute in question involves an explicit declaration of public policy. It follows that in determining whether defendant's liability was encompassed within the exemption which it affords, our duty is to give effect to the statutory command to the full extent of the intent of the law-makers as we ascertain it. Schwartz v. Stockton, supra, 32 N.J. at p. 148, 160 A.2d at p. 4.

We are satisfied that the exemption afforded by the statute in question was not intended to extend and did not extend, to the activities of defendant.

Defendant was admittedly functioning under the provisions of the County Park Act, R.S. 40:37--96 et seq., N.J.S.A. By the terms of that statute, the park commission of any county whose voters had elected to be governed by its provisions was constituted a body politic, with power to sue and be sued, to use a common seal and to enact bylaws. R.S. 40:37--99, N.J.S.A. It was authorized to acquire real estate in its corporate name, in fee or otherwise, by purchase, gift, devise or eminent domain. R.S. 40:37--101, N.J.S.A. It was authorized to lay out and improve suitable roadways and boulevards, R.S. 40:37--104 to 107 incl. N.J.S.A.; to condemn lands therefor, N.J.S.A. 40:37--109; to levy assessments for special benefits which were to remain a lien upon the properties affected, R.S. 40:37--119, N.J.S.A.; to sell lands for unpaid assessments, R.S. 40:37--120; to deliver certificates of sale for such lands, R.S. 40:37--123, N.J.S.A.; and to permit redemption thereof, R.S. 40:37--124, N.J.S.A. It was also vested with the power to make rules and regulations for the use of the parks under its control and to fix penalties for violations thereof, R.S. 40:37--152, N.J.S.A.; and was authorized to establish and maintain a park police system to preserve order in the parks under its control and to secure enforcement of its rules and regulations, R.S. 40:37--154 et seq., N.J.S.A. Thus, while funds for its operation were derived from the county, R.S. 40:37--14, N.J.S.A., N.J.S.A. 40:37--15.1 (now repealed), N.J.S.A. 40:37--101.1, such a commission was constituted an autonomous body which could 'sue and be sued,' with complete power to govern and control the establishment, operation, maintenance and use of public parks within its jurisdiction, R.S. 40:37--99, N.J.S.A., R.S. 40:37--101, N.J.S.A., R.S. 40:37--152, N.J.S.A.; see Hill v. Borough of Collingswood, 9 N.J. 369, 375, 88 A.2d 506 (1952), cf. Broadway National Bank of Bayonne v. Parking Authority of Bayonne, 40 N.J. 227, 233, 191 A.2d 119 (1963). The members of the commission at the time of the accident were serving by appointment of the assignment judge of the county. N.J.S.A. 40:37--97.

It is to be assumed that at the time of the original enactment of R.S. 40:9--2, N.J.S.A. the Legislature had knowledge of the powers thus conferred upon commissions established under the County Park Act. Lanning v. Hudson Cty. Ct. of Common Pleas, 127 N.J.L. 10, 21 A.2d 295 (Sup.Ct.1941). It could readily have included the activities of such commissions within the statutory exemption. See N.J.S.A. 40:37--10.2 providing for exemption from liability for death, personal injuries or property damage of county shade tree commissions and members thereof. Its use of the word 'county' is not without significance. By chapter 185 of the Laws of 1918, now R.S. 40:18--1 et seq., N.J.S.A., the Legislature had occasion to give corporate form to counties of the State. Under R.S. 40:18--1, N.J.S.A. the inhabitants of each...