Harrison v. Middlesex Water Co.

• Decision Date: 31 March 1978
• Citation: 386 A.2d 405,158 N.J.Super. 368
• Parties: Louise T. HARRISON, Administratrix ad Prosequendum of the Estate of William B. Harrison, Deceased, Plaintiff-Appellant, v. MIDDLESEX WATER COMPANY and Township of Clark, New Jersey, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 368

158 N.J.Super. 368

386 A.2d 405

Louise T. HARRISON, Administratrix ad Prosequendum of the Estate of William B. Harrison, Deceased, Plaintiff-Appellant, v. MIDDLESEX WATER COMPANY and Township of Clark, New Jersey Defendants-Respondents.

Superior Court of New Jersey,Appellate Division.

Argued Jan. 3, 1978.

Supplemental Memoranda Submitted Feb. 21, 1978 and March 9, 1978.

Decided March 31, 1978.

William J. Gearty, Spring Lake, for plaintiff-appellant.

Robert T. Hueston, Elizabeth, for respondent Middlesex Water Co. (Hueston, Hueston & Sheehan, Elizabeth, attorneys).

Michael John Stone, New Brunswick, for respondent Tp. of Clark (Hoagland, Longo, Oropollo & Moran, New Brunswick, attorneys).

Before Judges FRITZ, BOTTER and ARD.

The opinion of the court was delivered by

ARD, J. A. D.

The deceased, plaintiff's husband, died in a heroic attempt to rescue two 15-year-old boys who had fallen through the ice while skating on a reservoir owned by Middlesex Water Company (water company) and located in the Township of Clark (township). At the close of plaintiff's case the trial judge granted the water company's motion for an involuntary dismissal (R. 4:37-2(b)) and the township's motion for judgment (R. 4:40-1). Plaintiff appeals both rulings.

The standard for determining a motion for judgment under R. 4:40-1 is the same as that governing the resolution of a motion for involuntary dismissal under R. 4:37-2(b). In reviewing both motions the judge must accept as true all the evidence which supports the position of the party defending against the motion and must accord him the benefit of all legitimate inferences which can be deduced therefrom, and if reasonable minds could differ, the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969).

With this test in mind, plaintiff's proofs establish the following: In 1907 the water company created a lake or reservoir by damming a small stream. Over the passage of years the surrounding area became built-up to such an extent that the 94 acres of water surface now sits in the midst of a largely residential area. The entire property owned by the water company is 136 acres, of which 94 acres consist of surface waters. It is bounded by a regional high school a ball field, a tennis court 60 to 80 feet from the water, an athletic field about the same distance from the water and another athletic field approximately 100 feet away. There are also private homes in the area, and some of the homes' rear lot lines are very near the water. There is no fence around the water's edge near the site of the tragic event. The area residents, including children, have made continual use of the reservoir over the years for ice skating. At times as many as 500 people were skating on the ice at the same time. On the day of the drowning a witness testified that there were "probably less than 100 people" on the ice. From this testimony it can be reasonably inferred that there were a sizable number of skaters on the ice at the time of the tragedy.

During the period 1959 to 1969 the water company hired special employees to patrol the reservoir, but that had been discontinued. At the time of the accident there were no regular patrols, although its employees would warn off trespassers as an incident to their other duties. The reservoir also had "no trespassing" signs placed around it. It can be inferred that the water company was aware of the use of the reservoir for ice skating.

The water company and its predecessor constructed the dam and built the reservoir for commercial purposes. A treatment plant and pumping station are located adjacent to the reservoir. Since 1969 the reservoir has been maintained by the water company as a standby system. The reservoir and facilities were used "in the event of failure of some of the other sources of supply or excessive demand that cannot be met from our other source at which time this plant would be operated." In prior years the police officers of the township were ordered by their superiors to check the reservoir and warn off anyone if the ice was dangerous for skating.

On February 6, 1972 plaintiff's decedent drowned while attempting to rescue two 15-year-old boys who had entered upon the reservoir, ice-skated and fell through the ice. One of the boys drowned with decedent. On the date of the accident it was the first occasion of the winter season that portions of the reservoir's waters had frozen solid enough to permit ice skating. Snow which had begun to fall earlier on the day in question covered the icy surface of the reservoir so that the thickness of the ice was not easily ascertained.

Before considering the claim with respect to each defendant, we note a general principle of law which applies to rescuers such as decedent in claims of this nature. A tortfeasor may be liable to a rescuer because of the negligence of the tortfeasor which caused the peril to the one rescued. Odar v. Chase Manhattan Bank, 138 N.J.Super. 464, 351 A.2d 389 (App.Div.1976); Demetro v. Pennsylvania R.R. Co., 90 N.J.Super. 308, 217 A.2d 329 (App.Div. 1966); Cafone v. Spiniello Constr. Co., 42 N.J.Super. 590, 127 A.2d 441 (App.Div.1956), certif. den. 23 N.J. 258, 128 A.2d 753 (1957). We therefore direct our inquiry to the duty owed the rescued boys by the defendants.

We first address ourselves to the question of the liability of the township. Plaintiff argues that there was evidence before the court from which a jury could reasonably infer that the police were negligent in patrolling the reservoir area after being ordered by their chief "to chase the children off the ice if in their opinion it looks unsafe." We disagree.

No evidence was adduced at trial suggesting what was done or not done by the local police on the day in question. Furthermore, it was never shown that the township had actual or constructive notice of the presence of skaters or the condition of the ice on the day in question. The record is barren of any activity or lack of activity by the township police. There was evidence that in prior years uniformed police would check the area from time to time and order children off the ice. There was also testimony that on February 6, 1972 there was ice thick enough for skating. The trial judge, in granting the motion for judgment in favor of the township, ruled * * * (T)here is absolutely no evidence that on the day in question, the municipality that it patrols were there, that they saw any condition at all, whether or not it was dangerous or not and the Court has found previously that this is not a dangerous condition in terms of an artificial condition that applies to Middlesex. But having not seen it nor has there been any, there hasn't even been a scintilla of evidence that on the day in question, the police were there and that the only evidence was that at least a year ago, the defendant, Township of Clark, chased off Brian Sublisky on one day that this should give rise to tort liability upon the municipality for its failure on that day and the first day of skating to send someone over there to patrol the area, make observations and in finding a condition that was dangerous, to chase people off the ice. So, therefore, I grant a judgment in favor of the defendant, the Township of Clark. * * *

Essentially, plaintiff's claim against the township is that it failed to properly police and supervise private property, or if not having a duty to do so, had volunteered to do so. Plaintiff further claims that one of the boys who fell through the ice relied on the fact that there was no warning from the police on the day in question. However, plaintiff offered no evidence to indicate that the township's police were negligent in their patrol and observations of the condition of the ice. As plaintiff states in her brief:

At the posture in the case where the evidence ended, we do not know whether or not the police totally failed to obey these direct orders or whether they patrolled and failed to see if anyone was on the ice and were so careless in this patrol that they missed the 100 of them.

The basis of plaintiff's claim against the township is found in the testimony of Chief Anthony T. Smars of the Clark Township Police Department, given in pretrial depositions and admitted in evidence.

QUESTION: Do you have any standing police order concerning skating on the reservoir?

ANSWER: Our officers are advised that if they feel the ice is too thin and they are anywhere on the roadway, crossing over where the ice is on Raritan Road or Featherbed Lane, to use their loudspeakers to chase the children off the ice if in their opinion it look unsafe.

Plaintiff simply has failed to prove, expressly or inferentially, a failure to comply with the aforementioned order. Furthermore, plaintiff has failed to prove that the boys' evaluation of the condition of the ice and their reliance thereon was based on the fact that the police did not chase them away.

In addition, plaintiff's cause of action occurred prior to July 1, 1972, the effective date of the New Jersey Tort Claims Act. N.J.S.A. 59:14-4. Accordingly, we are governed by prior decisional case law and not the aforementioned act. Maule v. Conduit & Foundation Corp., 124 N.J.Super. 488, 307 A.2d 651 (Law Div.1973). Prior to the New Jersey Tort Claims Act, the liability of a municipality for negligence depended to a great extent upon whether the governmental function was proprietary or governmental. The municipality was only liable for injurious acts performed in its governmental capacity when they constituted active wrongdoing. Hartman v. Brigantine, 23 N.J. 530, 533, 129 A.2d 876 (1957). In McAndrew v. Mularchuk, 33 N.J. 172, 181, 162 A.2d 820, 825 (1960), the court defined active wrongdoing as "when a person suffers an injury through a negligent act of commission, as distinguished from a negligent failure to act, an obligation to respond in damages is recognized." Unquestionably, the general...