Goldberg v. Housing Authority of City of Newark, No. A--143

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtSULLIVAN
Citation70 N.J.Super. 245,175 A.2d 433
PartiesHarry GOLDBERG, Plaintiff-Respondent, v. HOUSING AUTHORITY OF the CITY OF NEWARK, a body politic and corporate of New Jersey, Defendant-Appellant.
Decision Date01 November 1961
Docket NumberNo. A--143

Page 245

70 N.J.Super. 245
175 A.2d 433
Harry GOLDBERG, Plaintiff-Respondent,
v.
HOUSING AUTHORITY OF the CITY OF NEWARK, a body politic and
corporate of New Jersey, Defendant-Appellant.
No. A--143.
Superior Court of New Jersey
Appellate Division.
Argued Sept. 8, 1961.
Decided Nov. 1, 1961.

Page 247

[175 A.2d 434] John J. Gaffey, Newark, for appellant (Gaffey & Webb, Newark, attorneys; H. Curtis Meanor, Jersey City, of counsel).

Seymour B. Jacobs, Newark, for respondent (Balk & Jacobs, Newark, attorneys).

Before Judges PRICE, SULLIVAN and LEONARD.

Page 248

The opinion of the court was delivered by

SULLIVAN, J.A.D.

Plaintiff was assaulted and robbed by unknown and unidentified persons while making deliveries of milk in one of the buildings of the Reverend William P. Hayes homes, a housing project operated by defendant Housing Authority. He sued for damages, charging that defendant had notice of similar occurrences on previous occasions but had failed to take proper measures to keep the premises safe for persons lawfully using the same. At the conclusion of the trial the jury rendered a verdict in favor of plaintiff for $6,000, and judgment was entered accordingly. Defendant appeals, charging numerous grounds therefor.

The project in question is a large development operated by defendant, a local housing authority, created pursuant to the provisions of N.J.S.A. 55:14A--1 et seq. It extends for several city blocks, with only one public street running through a portion thereof. It has ten residential buildings, each of which is 12 stories in height, and a community and boiler-house building. The project is 19.15 acres in size, has accommodations for 1,458 families, and in December 1957 its population was between 5,300 and 6,000 persons. Each building has two entrances which are kept open and unlocked at all times. No attendants or doormen are provided to control access to the buildings. There are numerous walks, play areas and parking areas throughout the project.

Plaintiff, a milkman, had been making deliveries to the project since 1954. His status as an invitee on the premises is unchallenged. On December 24, 1957, the day in question, at about one-thirty in the afternoon he was attending to his customers in the project and had gone to the twelfth floor of one of the buildings. There are two self-service elevators in each building. After making a delivery on the twelfth floor plaintiff entered the elevator and pressed the button for the fourth floor. There was no one else on the elevator at the time. The elevator descended a number of floors, and then stopped, and plaintiff got off thinking he was at the

Page 249

fourth floor. Just then two men got on the elevator. Plaintiff immediately realized that he was on the sixth floor and got back in the elevator which now had the two other men on it. They proceeded to attack plaintiff with a pipe. Plaintiff was severely beaten and robbed. His two assailants ran off and have never been identified.

It was shown that, at the time of the attack on plaintiff, the project employed three private policemen who worked in shifts patrolling the project from four o'clock in the afternoon until eight o'clock in the morning. During the hours between eight o'clock in the morning and four o'clock in the afternoon there was no private policeman on duty in the project. A Newark police officer was assigned to patrol the streets and walks on the project grounds. He came on duty about 11 A.M., worked an eight-hour shift, and was relieved by another officer who was on duty until approximately 3 A.M. These municipal police officers were not allowed to go into the project buildings unless called.

[175 A.2d 435] Plaintiff also showed that prior to December 24, 1957 the defendant Authority had received numerous reports of crimes and acts of violence being committed in and about the Hayes project. The official minutes of meetings of defendant Authority held on June 12, 1957, July 10, 1957, August 14, 1957, September 11, 1957, and October 16, 1957 record that the matters of crime in the Newark housing projects, the alleged lack of adequate policing and the need for more 'Special Police' were discussed at such meetings.

Defendant in its amended answer to the complaint set up by way of separate defenses that defendant was engaged in 'governmental functions' and was guilty of 'no active wrongdoing.'

Prior to trial, the court, on plaintiff's motion, struck said separate defenses, holding that defendant Housing Authority enjoyed no governmental immunity from a suit for negligence, and that plaintiff was not required to prove active wrongdoing on defendant's part. In its opinion the court

Page 250

stated that the function carried on by the Housing Authority was proprietary rather than governmental.

Defendant's first point on appeal is that these separate defenses were improperly stricken prior to trial and that it should have been afforded the opportunity to introduce evidence in support of these defenses. Ancillary thereto, defendant argues that the question whether it was conducting a proprietary operation or was engaged in governmental functions cannot be determined as a matter of law upon the pleadings.

The doctrine of immunity of municipal governments from liability for negligence is a controversial one. Prosser, Torts, (2d ed. 1955) pp. 774--5; 2 Harper and James, Law of Torts, pp. 1622--23. A comprehensive discussion of this area of the law and the inequalities of the doctrine has been set forth in Cloyes v. Delaware Tp., 23 N.J. 324, 129 A.2d 1, 57 A.L.R.2d 1327 (1957). Authorities uniformly criticize the rule. Prosser, Torts (2d ed. 1955), p. 774; 2 Harper and James, The Law of Torts (1956), sec. 29.6.

The immunity is confined to traditional governmental functions and courts have been quick to find municipal activities to be proprietary rather than governmental, thus avoiding the impact of the doctrine. Cloyes v. Delaware Tp. supra; Stringfield v. City of Hackensack, 68 N.J.Super. 38, 171 A.2d 361 (App.Div.1961). In this State the doctrine has been limited also by a judicial readiness to find active wrongdoing on the part of the government, in which case the immunity does not apply. Hartman v. City of Brigantine, 23 N.J. 530, 129 A.2d 876 (1957); Hayden v. Curley, 34 N.J. 420, 169 A.2d...

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3 practice notes
  • Winters v. Jersey City
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 28, 1972
    ...of an intent to avoid immunity and to authorize liability against it. Willis, supra; Goldberg v. Housing Authority of Newark, 70 N.J.Super. 245, 252, 175 A.2d 433 (App.Div.1961), rev'd on other grounds 38 N.J. 578, 186 A.2d 291 (1962); Taylor v. New Jersey Highway Authority, Supra, 22 N.J. ......
  • Goldberg v. Housing Authority of City of Newark, No. A--3
    • United States
    • New Jersey Supreme Court
    • December 3, 1962
    ...were tenants, guests of tenants, or intruders, is not known. The jury found for plaintiff and the Appellate Division affirmed. 70 N.J.Super. 245, 175 A.2d 433 (1961). We granted certification. 36 N.J. 233, 176 A.2d 60 Page 580 Plaintiff prevailed upon the single thesis that defendant had a ......
  • W. Funding, Inc. v. S. Shore Towing, Inc., Civ. Action 19-12853 (FLW)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 11, 2022
    ...the State government operating certain highways for the State.”), cert. denied, 379 U.S. 14 (1964); Goldberg v. Hous. Auth. of Newark, 70 N.J.Super. 245, 251 (App. Div. 1961) (“[O]ur Supreme Court held [in McCabe] that the Turnpike Authority is an agency of the State and is entitled to the ......
3 cases
  • Winters v. Jersey City
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 28, 1972
    ...of an intent to avoid immunity and to authorize liability against it. Willis, supra; Goldberg v. Housing Authority of Newark, 70 N.J.Super. 245, 252, 175 A.2d 433 (App.Div.1961), rev'd on other grounds 38 N.J. 578, 186 A.2d 291 (1962); Taylor v. New Jersey Highway Authority, Supra, 22 N.J. ......
  • Goldberg v. Housing Authority of City of Newark, No. A--3
    • United States
    • New Jersey Supreme Court
    • December 3, 1962
    ...were tenants, guests of tenants, or intruders, is not known. The jury found for plaintiff and the Appellate Division affirmed. 70 N.J.Super. 245, 175 A.2d 433 (1961). We granted certification. 36 N.J. 233, 176 A.2d 60 Page 580 Plaintiff prevailed upon the single thesis that defendant had a ......
  • W. Funding, Inc. v. S. Shore Towing, Inc., Civ. Action 19-12853 (FLW)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • April 11, 2022
    ...the State government operating certain highways for the State.”), cert. denied, 379 U.S. 14 (1964); Goldberg v. Hous. Auth. of Newark, 70 N.J.Super. 245, 251 (App. Div. 1961) (“[O]ur Supreme Court held [in McCabe] that the Turnpike Authority is an agency of the State and is entitled to the ......

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