Cloyes v. Delaware Tp., No. A--57

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtWEINTRAUB; HEHER; WACHENFELD
Citation57 A.L.R.2d 1327,129 A.2d 1,23 N.J. 324
Parties, 57 A.L.R.2d 1327 Philip W. CLOYES, Administrator ad prosequendum of the Estate of Philip Colin Cloyes, Deceased, Plaintiff-Respondent, v. The TOWNSHIP OF DELAWARE, a municipal corporation of the County of Camden, and State of New Jersey, Christian M. Weber, Thomas Walton and Samuel McGill, Defendants-Appellants.
Docket NumberNo. A--57
Decision Date04 February 1957

Page 324

23 N.J. 324
129 A.2d 1, 57 A.L.R.2d 1327
Philip W. CLOYES, Administrator ad prosequendum of the
Estate of Philip Colin Cloyes, Deceased,
Plaintiff-Respondent,
v.
The TOWNSHIP OF DELAWARE, a municipal corporation of the
County of Camden, and State of New Jersey,
Christian M. Weber, Thomas Walton and
Samuel McGill, Defendants-Appellants.
No. A--57.
Supreme Court of New Jersey.
Argued Dec. 17, 1956.
Decided Feb. 4, 1957.

Page 326

[129 A.2d 2] Warren C. Douglas, Camden, for defendants-appellants (Warren C. Douglas, Camden, for defendant-appellant Samuel McGill; John E. Yeomans, Camden, for defendants-appellants, Delaware Tp., Christian M. Weber and Thomas Walton; Warren C. Douglas, Camden, of counsel).

Thomas M. Farr, Camden, for plaintiff-respondent (Norcross and Farr, Camden, attorneys; Thomas M. Farr, Camden, of counsel).

The opinion of the court was delivered by

WEINTRAUB, J.

This is a death action (N.J.S. 2A:31--1 et seq., N.J.S.A.) arising out of the drowning of a three-year-old boy in an open sedimentation tank of the sewage disposal plant of the defendant municipality. The individual defendants are officials of the township who were charged with negligence, apparently in failing to act despite knowledge of the claimed danger.

The jury found for defendants. Upon plaintiff's appeal, the Appellate Division reversed and directed a new trial. The judges of the Appellate Division agreed there was error in the charge to the jury that it could consider the failure of the father to confine the child to his property in dealing with the issue of proximate causation, but divided upon the question whether the trial court properly treated the municipal activity as governmental rather than proprietary. In opinions which ably reflected the divergent points of view, the majority held the activity was proprietary while the concurring judge concluded it was governmental. 41 N.J.Super. 27, 124 A.2d 37 (1956).

Upon defendants' petition, we granted certification. 22 N.J. 226, 125 A.2d 439 (1956). Defendants seek not only a determination

Page 327

that the function is governmental but as well an affirmance of the judgment in the trial court upon the premise that the evidence did not disclose active wrongdoing within the concept controlling liability of a municipality in its governmental role.

I.

The doctrine of municipal immunity originated in judicial decisions since the separation of the Colonies from England. Davis, 'Tort Liability of Governmental Units,' 40 Minn.L.Rev. 751, 773 (1956); Prosser, Law of Torts (2d ed. 1955), § 109, p. 774. The immunity is confined to those activities which the municipality undertakes as the agent of the State as distinguished from those which it pursues in its corporate or proprietary capacity. Prosser, op. cit., supra, § 109, p. 774; 18 McQuillin, Municipal Corporations (3d ed. 1950), § 53.01, p. 132 et seq. This test, so simply stated, has proved of little help in the solution of litigation.

This field has been traversed time and again. Discussions in our State begin with Board of Chosen Freeholders of Sussex County v. Strader, 18 N.J.L. 108 (Sup.Ct.1840), wherein plaintiff sustained damage [129 A.2d 3] when his horses turned off a county bridge which was imperfectly constructed, being without railings or parapets. It was held that plaintiff could not recover. The court feared a different result 'would open a new field for litigation and I think it would produce an abundant Crop.' (at page 121). The principle was laid down that if the corporation neglects to perform a duty owed to the public and members of the public are injured 'some more, and some less,' there is no private remedy, but rather the remedy is by indictment. (at page 121). The 'abundant crop' nonetheless ensued. The variety of results reached as of 1934 are revealed in 'Tort Liability of Municipalities in New Jersey,' 3 Mercer Beasley L.Rev. 142 (1934). Decisions since then have not met the persistent demand for some definitive statement settling principles which will uniformly control in this area.

Page 328

It would be idle to pretend that any thread of reason conjoins all the results heretofore reached, either here or elsewhere. An explanation, however, can be found in the history of the subject and the inevitable evolutionary development of judge-made law.

At a time when municipal activities were few and the capacity of municipalities to respond in damages was uncertain, the doctrine of the Strader case undoubtedly seemed to be the common sense answer to the problem. But when municipalities and other governmental agencies expanded into new areas, either replacing private entrepreneurs or meeting new needs which theretofore had not required public activity, additional factors had to be weighed. The expansion of the area of operations enlarged the area of hurt. The number of private injuries which would go without remedy necessarily increased. The experience of private operators who performed subject to the ordinary principles of tort liability had demonstrated that such operations could absorb the impact of liability for negligence without curtailing or imperiling the service, and hence the fear of a crushing impact upon public funds which played a role in Strader was allayed. Indeed, it has been argued that a municipality can more readily absorb the loss than can private industry. Davis, op. cit. supra (40 Minn.L.Rev., at p. 811). The advent of liability insurance increased confidence in the ability of local government to carry on without special immunity. And, lastly, concepts of fair play and justice changed. The motion that a remedy by indictment could satisfy the public interest became archaic. It could not be adjusted to new thinking, the view that society is better served by absorbing the misfortunes negligently inflicted upon individuals rather than by leaving them to their own inadequate devices for the supposed benefit of the entire community.

It is thus understandable that new evaluations were made as the courts were periodically faced with the question whether the approach of another time should be followed with respect to new municipal activities. The common sense of the situation had changed. Confronted with the difficult task of

Page 329

maintaining stability while still achieving that fluidity without which a system of law would petrify, the courts declined to extend the concept of governmental immunity to new areas of activity while tending to adhere to it in the areas in which it had been established. Thus this court recently declined to extend the doctrine of immunity to a state authority with respect to its ownership of real property while used for housing, notwithstanding it had been condemned for use of the land as part of a turnpike, and reached that result without passing upon the question whether the authority's operation of the turnpike itself will receive governmental immunity within the doctrine here involved. Taylor v. New Jersey Highway Authority, 22 N.J. 454, 126 A.2d 313 (1956).

And within the field of so-called governmental activity, these new considerations impelled the courts to peck away at the concept of immunity. There slowly evolved [129 A.2d 4] a concept of active wrongdoing which, despite some hesitations and regressions (as, for example, Lydecker v. Board of Chosen Freeholders of Passaic County, 91 N.J.L. 622, 103 A. 251, L.R.A.1918D, 351 (E. & A.1918)), now embraces liability where none would have been found a century ago. The more recent decisions were summarized in these words in Kelley v. Curtiss, 29 N.J.Super. 291, 297, 102 A.2d 471, 474 (App.Div.1954), reversed on other grounds, 16 N.J. 265, 108 A.2d 431 (1954):

'To be active, there must be a 'positive, affirmative act.' Allas v. (Borough of) Rumson, 115 N.J.L. 593, 595, 181 A. 175, 176, 102 A.L.R. 648 (E. & A.1935), supra. In other words, in the sequence of events each of which becomes a proximate cause of the injury, there must be a wrongful act (as distinguished from a mere failure to act) on the part of some municipal officer, agent or servant. The last event in...

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68 practice notes
  • Smith v. Lockheed Propulsion Co.
    • United States
    • California Court of Appeals
    • January 17, 1967
    ...454, 470, 126 A.2d 313, 62 A.L.R.2d 1211 (1956); cf. Schwartz v. Stockton, 32 N.J. 141, 147, 160 A.2d 1 (1960); Cloyes v. Delaware Tr., 23 N.J. 324, 327, 129 A.2d 1, 57 A.L.R.2d 1327 (1957). See also Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962); United States ......
  • Phillips v. State, Dept. of Defense
    • United States
    • United States State Supreme Court (New Jersey)
    • January 21, 1985
    ...Co., 39 N.J.L. 49, 50 (Sup.Ct.1876). The courts occasionally whittled away at sovereign immunity. See, e.g., Cloyes v. Delaware Township, 23 N.J. 324, 327, 129 A.2d 1 (1957). From time to time the State waived its immunity by providing that particular State agencies might sue or be sued. Se......
  • Port of New York Authority v. Hackensack Water Co., Nos. A--3
    • United States
    • United States State Supreme Court (New Jersey)
    • November 6, 1963
    ...should not envelop the many activities which government today pursues to meet the needs of the citizens. Cloyes v. Delaware Township, 23 N.J. 324, 129 A.2d 1, 57 A.L.R.2d 1327 (1957). We see no connection between that classification and the problem before us. * * Even where the distinction ......
  • Burke v. Deiner
    • United States
    • United States State Supreme Court (New Jersey)
    • August 2, 1984
    ...arguable whether the parking commissioners were exercising a proprietary or a governmental function. See Cloves v. Township of Delaware, 23 N.J. 324, 129 A.2d 1 (1957). Courts must "realistically interpret both the statutory and common-law immunities in order to effectuate their intended sc......
  • Request a trial to view additional results
68 cases
  • Smith v. Lockheed Propulsion Co.
    • United States
    • California Court of Appeals
    • January 17, 1967
    ...454, 470, 126 A.2d 313, 62 A.L.R.2d 1211 (1956); cf. Schwartz v. Stockton, 32 N.J. 141, 147, 160 A.2d 1 (1960); Cloyes v. Delaware Tr., 23 N.J. 324, 327, 129 A.2d 1, 57 A.L.R.2d 1327 (1957). See also Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962); United States ......
  • Phillips v. State, Dept. of Defense
    • United States
    • United States State Supreme Court (New Jersey)
    • January 21, 1985
    ...Co., 39 N.J.L. 49, 50 (Sup.Ct.1876). The courts occasionally whittled away at sovereign immunity. See, e.g., Cloyes v. Delaware Township, 23 N.J. 324, 327, 129 A.2d 1 (1957). From time to time the State waived its immunity by providing that particular State agencies might sue or be sued. Se......
  • Port of New York Authority v. Hackensack Water Co., Nos. A--3
    • United States
    • United States State Supreme Court (New Jersey)
    • November 6, 1963
    ...should not envelop the many activities which government today pursues to meet the needs of the citizens. Cloyes v. Delaware Township, 23 N.J. 324, 129 A.2d 1, 57 A.L.R.2d 1327 (1957). We see no connection between that classification and the problem before us. * * Even where the distinction ......
  • Burke v. Deiner
    • United States
    • United States State Supreme Court (New Jersey)
    • August 2, 1984
    ...arguable whether the parking commissioners were exercising a proprietary or a governmental function. See Cloves v. Township of Delaware, 23 N.J. 324, 129 A.2d 1 (1957). Courts must "realistically interpret both the statutory and common-law immunities in order to effectuate their intended sc......
  • Request a trial to view additional results

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