Falcone v. Bd. of Educ. of Newark in Essex County

• Decision Date: 02 March 1939
• Parties: FALCONE v. BOARD OF EDUCATION OF NEWARK IN ESSEX COUNTY.
• Court: New Jersey Court of Common Pleas

4 A.2d 687

FALCONE

v. BOARD OF EDUCATION OF NEWARK IN ESSEX COUNTY.

Court of Common Pleas of New Jersey, Essex County.

March 2, 1939.

Action by Angelo Falcone, as administrator ad prosequendum of Margaret Falcone, deceased, against the Board of Education of Newark in Essex County, for death allegedly caused by improper erection and maintenance of slab in school building. On defendant's motion to strike the complaint.

Complaint stricken.

Milton M. Unger and Sydney L. Seiler, both of Newark, for plaintiff.

Charles M. Myers, of Newark, for defendant.

HARTSHORNE, Judge.

The question here is, how far the public school system of the state is, as such, liable for injuries to the person.

The complaint herein, in two counts, alleges, in substance, that on January 16, 1936, while plaintiff's intestate, a girl, was using a wash room and lavatory in a public school building on a school playground, in Newark, a slate slab, which acted as a screen, fell upon the girl, as the result of which she died. The complaint further alleges that this slab was both erected and maintained improperly, so as to constitute a place of danger, same constituting acts of positive misfeasance. Defendant now moves to strike the complaint. Defendant annexes affidavits to its motion, showing that the girl was climbing on this slab when it fell. But even assuming these affidavits can be now considered, the age of the girl, in the absence of further facts, renders her contributory negligence a jury question.

The real question is as to the effect of the statute providing, "No county, municipality or school district shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding." P.L.1933, c. 460, p. 1550. This statute is carried over into the Revised Statutes (R.S. 18:5-30; 40:9-2). The reason for the enactment of this short, and apparently quite explicit, statute is not far to seek.

At the common law, the liability of municipal corporations, for the acts of their officers and agents, has given rise not only to a large amount of litigation, but to some fine distinctions. Furthermore, the application of these principles to the facts of the various cases has given rise to "hardships and difficulties." Hammond v. County of Monmouth, 117 N.J.L. 11, 186 A. 452; Alias v. Rumson, 115 N.J.L. 593, 181 A. 175, 176, 102 A.L.R. 648. In the latter case, the Court says, "There is some confusion in the adjudicated cases * * *, and the line of demarcation is not always clearly maintained. The difficulty usually lies in the application of the principle to the facts of the particular case." Reduced to lowest terms, the principle apparently is, that a municipal corporation is not liable for the negligent acts of its agents, resulting in a common, indictable, nuisance, except where (a) there has been active wrongdoing, as distinguished from mere negligence, or (b) the municipal function, in the course of which the injury has arisen, has been proprietary, rather than governmental, in its nature. It would be a work of supererogation to go further, or to attempt to show the difficulty which the courts themselves have had in applying these very rules. The Alias case, supra, which arose prior to the 1933 act, in the course of a lengthy opinion, makes this sufficiently clear.

From the above, it is evident that the legislature, in enacting the above statute, intended to clarify and simplify this complicated legal situation, at least as far as injuries to the person were concerned. It was, apparently, the legislative belief that public policy would be better served by imposing responsibility for wrongful injuries to the person, solely upon the individuals who committed these wrongful acts, and not also upon the public body itself. The legislature, doubtless, felt that the liability of this public body to indictment was a sufficient curb upon such public officials, and that the public as a whole should not be penalized. Indeed, from a practical standpoint, the effect of the act upon the persons injured, in so far as our public school system is concerned, has been but small. For while at the present time, if the statute means what it apparently says, the action must be brought only against the individual who is directly to blame, plaintiff's recovery is not limited by the pecuniary responsibility of that individual. For plaintiff has been assured of an additional responsibility equivalent to that of the municipal corporation itself. P.L.1938, c. 311, N.J.St. Annual 1938, 18:5-50.4. See, also, R.S. 18:5-50.2, 50.3.

But be that as it...