Bengivenga v. City of Plainfield

• Decision Date: 14 May 1942
• Docket Number: No. 5.,5.
• Citation: 26 A.2d 288,128 N.J.L. 418
• Parties: BENGIVENGA v. CITY OF PLAINFIELD.
• Court: New Jersey Supreme Court

26 A.2d 288

128 N.J.L. 418

BENGIVENGA

v. CITY OF PLAINFIELD.

No. 5.

Court of Errors and Appeals of New Jersey.

May 14, 1942.

[Copyrighted material omitted.]

Appeal from Circuit Court, Union County.

Action by Carmella Bengivenga, administratrix ad prosequendum of Angelina Bengivenga, deceased, against the City of Plainfield, to recover for the death of Angelina Bengivenga, deceased. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

William V. Azzoli, of Newark, for plaintiff-appellant.

Salvador Diana, of Plainfield, for defendant-respondent.

WELLS, Judge.

This is an appeal from an order made and judgment entered in the Union County Circuit Court striking out the complaint and dismissing the cause of action at law on the ground that neither of the two counts of said complaint was sufficient in law to maintain an action against the defendant.

The first five paragraphs of both counts are identical and allege in substance that on July 23, 1938, the plaintiff's intestate, Angelina Bengivenga, was a pedestrian lawfully walking on the sidewalk on the westerly side of Berkman Street in the vicinity of South Avenue, Plainfield, New Jersey; that on said date and for a long time prior thereto the defendant was in control of Berkman Street and South Avenue and all sewers, streams, sidewalks, conduits and drains within the lines of said public streets and the inlets and outlets thereof; that on said date the said Angelina Bengivenga was precipitated through said sidewalk, which paralleled Berkman Street, by reason of the opening up and collapse of said sidewalk which was caused by the prior acts (not specifying them) of defendant, and this precipitation through the sidewalk was the cause of Angelina Bengivenga's death.

Before discussing the sufficiency of the complaint, it might be well to state briefly a few of the rules of law pertaining to the subject matter of the suit.

First: It is well settled that any one injured by the negligence of a municipality acting in a proprietary function may maintain an action against a municipality. Fay v. City of Trenton, 126 N.J.L. 52, 18 A.2d 66; Martin v. City of Asbury Park, 111 N.J.L. 364, 168 A. 612.

Second: When a municipality is acting in a governmental function it must first be determined if the acts complained of constitute a private or public nuisance. If a private nuisance is properly charged and alleged in the complaint, a municipality can be held for negligence if it had prior notice of the condition. Jersey City v. Kiernan, 50 N.J.L. 246, 13 A. 170. If, however, the acts complained of result in a private nuisance and active wrongdoing is also present, then prior notice of the condition is not required. Garrison v. Borough of Fort Lee, 92 N.J.L. 566, 106 A. 381.

Third: "The courts of this state have said in conclusive form that the neglect of a municipal corporation to perform, or its negligence in the performance of; a public duty imposed on it by law, is a public wrong, to be remedied by indictment, and cannot constitute the basis of a civil action by an individual who has suffered particular damage by reason of such neglect." Waters v. City of Newark, 56 N.J.L. 361, 28 A. 717, 718, affirmed 57 N.J.L. 456, 35 A. 1131.

"But it is also a rule of law of equal importance that the exemption of a municipal corporation from actions by individuals suffering special damage from its neglect to perform or its negligence in performing public duties, whereby a public wrong is done for which an indictment will lie, does not extend to actions where the injury is the result of active wrongdoing chargeable to the corporation." Doran v. City of Asbury Park, 91 N.J.L. 651, 104 A. 130, 131; Kehoe v. Borough of Rutherford, 74 N.J.L. 659, 65 A. 1046, 122 Am.St.Rep. 411.

The building of streets, sidewalks, sewers and drains is a proper governmental function and it is conceded that the municipal function in the course of which the alleged injury in the instant case arose was governmental and not proprietary. There can be no doubt that the acts complained of constitute a public nuisance (i. e. one which might cause damage to any member of the public) and not a private nuisance (i. e. one which might cause special damage to a limited number of persons only.) If we are right in the premises, then in order to maintain an action against the municipality, active wrongdoing must necessarily be charged and proved. Buckalew v. Board of Freeholders of Middlesex County, 91 N.J.L. 517, 104 A. 308, 2 A.L.R. 718. See also Alias v. Borough of Rumson, 115 N.J.L. 593, 181 A. 175, 102 A.L.R. 648.

Inasmuch as the question involved in this appeal is the propriety of the order of the trial court in striking out the complaint on the ground of its insufficiency, we deem it advisable, even at the risk of being prolix, to set forth substantially verbatim the sixth and seventh paragraphs of the two counts of the complaint.

The sixth paragraph of the first count alleges that "The opening up and collapse of said westerly sidewalk * * * was caused by the wrongful acts of the defendant in maintaining a nuisance on said date and prior thereto in and under said sidewalk in said public street, * * * in that the foundation under said sidewalk was, and was known by the defendant to be, and was caused by defendant to be on said date and prior thereto, inadequate soft, mushy and of insufficient strength to hold up said sidewalk. The said sidewalk * * * was improperly and inadequately constructed" (not stating when, how or by whom) "and maintained and was a nuisance in that it was a trap and danger to pedestrians and would not, during rain storms, sustain the weight of pedestrians thereon and was likely to collapse with the weight of normal adult persons. The construction underneath said sidewalk connected with a natural flowing brook which during rain storms and high water undermined the foundation of said sidewalk. This condition was produced by defendant" (not stating how) "and was known to defendant for a long time prior to the injury and death of said Angelina Bengivenga. The defendant not only maintained said nuisance underneath said sidewalk, but actively added to and increased the conditions existing therein by causing water, drains, gutters, and...