Buffington v. Atl. County

• Decision Date: 19 June 1933
• Citation: 167 A. 527
• Parties: BUFFINGTON et al. v. ATLANTIC COUNTY.
• Court: New Jersey Supreme Court

167 A. 527

BUFFINGTON et al.

v. ATLANTIC COUNTY.

Supreme Court of New Jersey.

June 19, 1933.

Action by Ethel Buffington and another against Atlantic County. On motion to strike out complaint.

Motion denied.

Edmund C. Gaskill, Jr., Co. Counsel, of Atlantic City, for the motion.

Samuel T. French, of Camden, opposed.

JAYNE, Commissioner.

A motion is made in behalf of the defendant, county of Atlantic, to strike out the complaint filed in the above-entitled action, in that it fails to allege a cause of action against the defendant. Succinctly stated, the complaint alleges that on December 12, 1931, the plaintiff Ethel Buffington was a passenger in an automobile traveling on Weymouth road, a public highway under the control and maintenance of the county of Atlantic, and that it was the duty of the defendant to maintain this road in a reasonably safe condition for public travel, and to prevent the presence of obstructions in and upon the highway with proper warning signs or other safeguards for the protection of travelers thereon against injury from any existing dangerous condition in the highway. It is alleged in the complaint that a large tree was situate within the boundaries of that portion of the road open for travel, and that on the night of the date mentioned the automobile in which the plaintiff Ethel Buffington was riding collided with this tree, in which collision this plaintiff sustained bodily injuries, for which she seeks damages. It is further alleged that the tree had remained at this location in the highway for more than twenty months prior to the occurrence of the collision. It is contended in behalf of the defendant that no liability on the part of the defendant arises out of the facts alleged in the complaint. It is conceded that the construction, improvement, and repair of county roads are public duties of the county, and not of a private or quasi private nature. The rule with its exceptions relative to the liability of municipal corporations for negligence in the performance of public governmental duties is well established in this state. The following reported cases are illuminative: Freeholders of Sussex County v. Strader, 18 N. J. Law, 108, 35 Am. Dec. 530; Cooley v. Freeholders of Essex, 27 N. J. Law, 415; Livermore v. Freeholders of Camden County, 31 N. J. Law, 508; Pray v. Jersey City, 32 N. J. Law, 394; Durkes v. Town of Union, 38 N. J. Law, 21; Condict v. Jersey City, 46 N. J. Law, 157; Wild v. Patterson, 47 N. J. Law, 406, 1 A. 490; Jersey City v. Kiernan, 50 N. J. Law, 246, 13 A. 170; Waters v. Newark, 56 N. J. Law, 361, 28 A. 717; Hart v. Freeholders of Union County, 57 N. J. Law, 90, 29 A. 490; Kehoe v. Rutherford, 74 N. J. Law, 659, 65 A. 1046, 122 Am. St. Rep. 411; Bisbing v. Asbury Park, 80 N. J. Law, 416, 78 A. 196, 33 L. R. A. (N. S.) 523; Karpenski v. South River, 83 N. J. Law, 149, 83 A. 639; Jerolaman v. Belleville, 90 N. J. Law, 206, 101 A. 244; Buckalew v. Freeholders of Middlesex County, 91 N. J. Law, 517, 104 A. 308, 2 A. L. R. 718; Doran v. Asbury Park, 91 N. J. Law, 651, 104 A. 130; Garrison v. Fort Lee, 92 N. J. Law, 566, 106 A. 381; Olesiewicz v. City of Camden, 100 N. J. Law, 336, 126 A. 317; Ansbro v. Wallace, 100 N. J. Law, 391, 126 A. 426; Johnson v. Board of Education of Wildwood, 102 N. J. Law, 606, 133 A. 301; Murray Rubber Co. v. Trenton, 103 N. J. Law, 43, 135 A. 475; Zboyan v. Newark, 104 N. J. Law, 258, 140 A. 225; Callan v. Passaic, 104 N. J. Law, 643, 141 A. 778.

It has been uniformly held that, in the absence of statute, a municipal corporation, to which has been delegated by law the performance of public duties, cannot be held liable in the suit of an individual for mere negligence in the performance of those public duties, which negligence is a public wrong for which an indictment will lie. On the other hand, municipal corporations have not been exempt from liability for injury to individuals in the performance of public duties proximately caused by the active wrongdoing of the municipal corporation. Undoubtedly, the existence of a large standing tree within the boundaries of the paved portion of a public highway is such an obstruction that, in the...