Fahey v. Jersey City

Decision Date28 June 1968
Docket NumberA--44,Nos. A--43,s. A--43
Citation52 N.J. 103,244 A.2d 97
PartiesJohn FAHEY, an infant, by his guardian ad litem, Thomas Fahey, and Thomas Fahey and Virginia Fahey, his wife, individually, Plaintiffs-Appellants, v. JERSEY CITY, a municipal corporation of the State of New Jersey, Defendant-Respondent. Gerald Mark WILLIAMS, by his guardian ad litem, Jerry Williams, and Jerry Williams, individually, Plaintiffs-Appellants, v. BOROUGH OF RED BANK, a municipal corporation of the State of New Jersey, Defendant-Respondent.
CourtNew Jersey Supreme Court

Sigmund Auerbach, Jersey City, for plaintiffs-appellants Fahey (James G. Lepis, Jersey City, on the brief).

T. James Tumulty and Irving I. Vogelman, Jersey City, for defendant-respondent Jersey City (James H. Dowden, Jersey City, on the brief).

Frank A. Pelliccia, Asbury Park, for plaintiffs-Appellants Williams (Charles B. Klitzman, Asbury Park, attorney; Frank A. Pelliccia, Asbury Park, of counsel).

Stephen J. Foley, Asbury Park, for defendant-respondent Borough of Red Bank (Campbell, Mangini, Foley & Lee, Asbury Park, attorneys; Michael J. Cernigliaro, Asbury Park, on the brief).

The opinion of the Court was delivered by


These two cases have been consolidated as each involves the question of municipal immunity from tort actions arising out of the construction and maintenance of public playgrounds and recreational facilities. They present similar factual patterns and legal issues.

On August 28, 1964, infant plaintiff in A--43, John Fahey, then 11 years of age, was playing in the playground area of a public park owned and maintained by defendant Jersey City. While walking across the balancing bar of a seesaw, the youth fell, sustaining injuries for which suit was filed against defendant in the Law Division.

Defendant's subsequent motion to dismiss was granted on the basis that R.S. 40:9--2, N.J.S.A. conferred immunity upon the municipality for suits arising out of the maintenance of a public playground. In an unreported opinion the Appellate Division affirmed and we granted certification. 48 N.J. 448, 226 A.2d 435 (1967).

On September 9, 1964, infant plaintiff in A-44, Gerald Mark Williams, then age three, went with other children to a portion of the municipal park in the Borough of Red Bank known as 'Candy Cane City.' Among the swings, slides, and other recreational equipment contained in the park was a 'firemen's slide.' This consisted of a platform, approximately 12 feet high, with a circular hole in the middle and a pole running from the ground up through the center of the hole in the platform. Children were apparently accustomed to climbing the ladder leading to the platform and sliding down the pole to the ground. On this occasion, however, the Williams child fell from the platform to the ground, injuring himself.

In the subsequent damage suit against the municipality, the trial court granted defendant's motion for summary judgment, once again on the basis that R.S. 40:9--2, N.J.S.A. constituted an absolute bar to the action. In an unreported opinion the Appellate Division affirmed and we granted certification. 48 N.J. 574, 227 A.2d 133 (1967).


The statute in question, R.S. 40:9--2, N.J.S.A., reads 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.'

The first question is whether public recreational areas of the type herein involved fall within the statutory category of 'public grounds, buildings or structures.' This inquiry is necessary only because R.S. 40:9--2, N.J.S.A. has, in the past, been read not to include certain municipal properties--principally streets and other thoroughfares--which might literally be viewed as 'grounds' within the legislative grant of immunity. Schwartau v. Miesmer, 50 N.J.Super. 399, 142 A.2d 675 (App.Div.1958) (public street); Selph v. Morristown, 16 N.J.Misc. 19, 195 A. 862 (Sup.Ct.1938) (pedestrian walk); Cohen v. Town of Morristown, 15 N.J.Misc. 288, 190 A. 851 (Sup.Ct.1937) (foot bridge); Hammond v. County of Monmouth 117 N.J.L. 11, 186 A. 452 (Sup.Ct.1936) (culvert); Satink v. Holland Township, 28 F.Supp. 67 (D.N.J.1939) (highway).

Parks, playgrounds, and other open recreational areas are certainly 'grounds' within the ordinary and general meaning of that term. The very composition of the word Playground makes that fact self-evident. And, 'in the absence of an explicit indication of a special meaning, the words of a statute are to be given their ordinary and well understood meaning.' Safeway Trails, Inc. v. Furman, 41 N.J. 467, 478, 197 A.2d 366, 371 (1964), certiorari denied 379 U.S. 14, 85 S.Ct. 144, 13 L.Ed.2d 84 (1964); Lane v. Holderman, 23 N.J. 304, 313, 129 A.2d 8 (1957).

The term 'public grounds' in R.S. 40:9--2, N.J.S.A. is not employed in any special or technical sense. 1 We therefore conclude that municipal parks and playgrounds of the sort involved here are public grounds within the meaning of R.S. 40:9--2, N.J.S.A. We also consider the recreational equipment involved to be a part of the municipal parks' grounds or structures. These conclusions are reinforced by the constitutional direction that laws concerning municipal corporations be liberally construed in their favor. N.J.Const., Art. IV, § VII, par. 11.


Our cases have held that R.S. 40:9--2, N.J.S.A. embodies the common law distinction between governmental and proprietary municipal functions, so that it only insulates municipalities from liability for injuries from the use of buildings and grounds devoted to governmental functions. Weeks v. City of Newark, 62 N.J.Super. 166, 174, 162 A.2d 314 (App.Div.1960), affirmed per curiam 34 N.J. 250, 168 A.2d 11 (1961); Wall v. Hudson County Park Com., 80 N.J.Super. 372, 376, 193 A.2d 857 (App.Div.), certification denied 41 N.J. 198, 195 A.2d 467 (1963); Falcone v. Bd Education, Newark, 17 N.J.Misc. 75, 4 A.2d 687 (C.P.1939); Leeds v. Atlantic City, 13 N.J.Misc. 868, 181 A. 892 (Cir.Ct.1935). Thus, despite the dissatisfaction with the artificial governmental-proprietary distinction which this and other courts have expressed on so many occasions, the test must be retained for purposes of R.S. 40:9--2, N.J.S.A.

The parties have devoted considerable attention to the question of whether the maintenance of public parks and playgrounds should be classified as a governmental or proprietary function for purposes of municipal tort immunity. On this issue, there is a sharp division of authority in other jurisdictions. See Rhyne, Municipal Law 777 (1957); Annot., 142 A.L.R. 1340 (1943); 18 McQuillin, Municipal Corporations (3d ed. 1966), § 53.112, pp. 433--43. 2 N 2. Compare De Simone v. City of Philadelphia, 380 Pa. 137, 110 A.2d 431 (1955); Caldwell v. Village of Island Park, 304 N.Y. 268, 107 N.E.2d 441 (1952), viewing a park as a proprietary enterprise, with Carlisi v. City of Marysville, 373 Mich. 198, 128 N.W.2d 477 (1964); Wohlleben v. City of Park Falls, 23 Wis.2d 362, 127 N.W.2d 35 (1964); Crisafi v. City of Cleveland, 169 Ohio St. 137, 158 N.E.2d 379 (1959); Macy v. Town of Chelan, 59 Wash.2d 610, 369 P.2d 508 (1962), all viewing maintenance of parks as a governmental function.

The criteria for determining whether a particular function is governmental or proprietary have been articulated on many occasions. See Cloyes v. Delaware Township, 23 N.J. 324, 332--34, 129 A.2d 1, 57 A.L.R.2d 1327 (1957); Stringfield v. City of Hackensack, 68 N.J.Super. 38, 41--44, 171 A.2d 361 (App.Div. 1961; Weeks v. City of Newark, supra; Caporossi v. Atlantic City, 220 F.Supp. 508 (D.N.J.1963), affirmed 328 F.2d 620 (3d Cir.1964) certiorari denied 379 U.S. 825, 85 S.Ct. 51, 13 L.Ed.2d 35 (1964). Among the factors denoting a governmental function are the fact that an activity was historically engaged in by local government; that it is uniformly so furnished today; that it could not be performed as well by a private corporation; that it is not undertaken for profit or for revenue; and, most significantly, that it is within the imperative public duties imposed on a municipality as agent of the State. Cloyes v. Delaware Tp., 23 N.J. 324, 333, 129 A.2d 1, 57 A.L.R.2d 1327 (1957). Stringfield v. City of Hackensack, supra, 68 N.J.Super. at p. 44, 171 A.2d at 364.

Applying these criteria set forth in Stringfield and other modern cases, we cannot view the operation of municipal parks and playgrounds as other than a governmental function. 'Public parks, open spaces, playgrounds and places for public resort, rest and recreation are facilities anciently provided by local government.' Coleman v. Edison Tp., 95 N.J.Super. 600, 604, 232 A.2d 187, 189 (App.Div.1967). And whether such municipal facilities are of ancient or modern origin, they are today so intimately related to the general welfare that scarcely a city...

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