Hayden v. Curley

• Citation: 169 A.2d 809,34 N.J. 420
• Decision Date: 11 April 1961
• Docket Number: No. A--66,A--66
• Parties: Richard HAYDEN, Plaintiff-Appellant, v. Joseph CURLEY and City of Jersey City, a municipal corporation of the State of New Jersey, Defendants-Respondents.
• Court: United States State Supreme Court (New Jersey)

Page 420

34 N.J. 420

169 A.2d 809

Richard HAYDEN, Plaintiff-Appellant, v. Joseph CURLEY and City of Jersey City, a municipal corporation of the State of New Jersey Defendants-Respondents.

No. A--66.

Supreme Court of New Jersey.

Argued Feb. 7, 1961.

Decided April 11, 1961.

Bernard Chazen, Hoboken, for plaintiff-appellant (Jacob R. Friedman, Jersey City, attorney; Baker, Garber & Chazen, Hoboken, of counsel; Bernard Chazen, Hoboken, on the brief).

Samuel H. Nelson, Newark, for defendant-respondent Joseph Curley (Edmond J. Dwyer, Newark, attorney).

Cyril J. Galvin, Jersey City, for defendant-respondent Jersey City (Ezra L. Nolan, Jersey City, attorney).

The opinion of the court was delivered by

PROCTOR, J.

This is a sidewalk accident case. Plaintiff sought damages for injuries sustained when he tripped and fell over a portion of a public sidewalk, allegedly broken and raised by the roots of a tree which was plainted in the sidewalk by the City of Jersey City at the abutting property-owner's request. Joined as defendants were the property owner, Joseph Curley, the City of Jersey City, and the City Forester, David Post. The trial court granted a dismissal as to Curley and Post at the conclusion of all the evidence, and as to the city on a reserved motion after the jury returned a verdict in favor of the plaintiff. The plaintiff appealed only from the judgments of dismissal in favor of the defendants Curley and Jersey City. The Appellate Division affirmed and we granted plaintiff's petition for certification. 33 N.J. 332, 164 A.2d 382 (1960).

When considering the propriety of granting a motion for dismissal, the court must regard the evidence and inferences arising therefrom in the light most favorable to the plaintiff. Applying that standard to the present case, we find that the evidence discloses the following:

Since 1893, this State has had an enabling act which permits municipalities to create commissions with the power to exercise exclusive control over the regulation, planting and care of shade trees in and along their highways. P.L.1893, c. 285 (now N.J.S.A. 40:64--1 to 14). Pursuant to that statute, Jersey City, in 1912, adopted an ordinance concerning the planting, care and control of shade trees along its streets. Under the provisions of that ordinance, in force today, no one without the written permission of the city may 'cut, remove, break, climb, or in any manner injure, or cause, authorize or procure the removal, cutting, breaking, climbing or injuring' of any shade tree on any municipal public highway, or obstruct the 'free access of air and water to the roots' or 'plant or set out or cause, authorize or procure the planting or setting out of any (such) * * * tree.' Violators of the ordinance are subject to fine. The city Shade Tree Bureau exercises the shade tree control provided for by the ordinance. If a property owner requests the planting of a tree in the sidewalk adjacent to his premises, the Bureau provides the tree, and is in sole control of its planting and subsequent care. It has, however, no regular or systematic program of inspection and maintenance. Employees of the Bureau do not make inspection tours; and they are not instructed to look for or report observable dangerous conditions relating to municipally-controlled trees. Instead, the Bureau relies upon complaints from interested citizens for information about conditions which require its attention.

In May 1939, the Bureau, pursuant to defendant Curley's request and for a charge of $3, planted a shade tree in the sidewalk in front of his house. Over the years the tree grew, so that at the time of plaintiff's mishap it was sixteen inches in diameter at the base of the trunk, and the roots had raised and broken three contiguous slabs of concrete. One slab had been raised four inches above the adjoining slab. This condition existed for about five years before the plaintiff's accident, and was readily observable. Plaintiff's expert testified that all 'the adjoining slabs of this tree, as they radiate to the tree itself, they're heaved, and as they go away they become depressed.' This testimony and photographs admitted in evidence clearly show that the causal relationship between the defective sidewalk and the growth of the tree roots was also ascertainable by visual inspection. The records of the city indicate the Shade Tree Bureau inspected the tree once--at the defendant Curley's request--about four months prior to the accident, to remove a limb broken by a storm. The Bureau employees who removed the limb did not report the condition of the abutting sidewalk to their superiors.

On November 8, 1957, at about 5:30 P.M., the plaintiff, while walking in front of defendant Curley's home, tripped and fell over the raised sidewalk. At the time of his fall the weather was clear; the streets were dry; it was becoming dark; and a street light twenty-four feet from the location of the accident was lit. Plaintiff lived in the neighborhood but had not walked on that part of the street for ten years prior to the accident.

Defendant Curley had made minor repairs to the sidewalk but not in the location where the fall occurred.

We first consider the propriety of the dismissal in favor of the defendant Jersey City. The trial court granted the city's motion on the ground there was no evidence that the city knew of the condition of the sidewalk or that the condition was traceable to the growth of the tree, and that therefore, there was no evidence of negligence. The Appellate Division affirmed on a different ground. Plaintiff made no assertion below that the city in planting and maintaining trees was engaged in a proprietary function. Under our decisional law, a municipality is liable for the injury-inflicting conduct of its servants engaged in governmental functions only if the plaintiff proves 'active wrongdoing.' McAndrew v. Mularchuk, 33 N.J. 172, 181, 162 A.2d 820 (1960). The Appellate Division held that the plaintiff did not sustain this burden.

To constitute 'active wrongdoing' a municipality's injury-inflicting conduct must consist of something more than a negligent failure or omission to act. Buckalew v. Board of Chosen Freeholders of Middlesex, 91 N.J.L. 517, 104 A. 308, 2 A.L.R. 718 (E. & A. 1917) (county held not liable for failure to repair road defects caused by natural elements). The city argues that since there is no evidence it improperly planted the tree, its culpatory conduct, if any, consisted solely of a failure to prevent or correct the subsequently-arising sidewalk defect, i.e., the alleged misconduct was an omission to act rather than active wrongdoing. The evidence, however, would sustain a finding that but for the city's affirmative act of planting the tree in the sidewalk, the dangerous condition causing plaintiff's injury would not have materialized. The question for decision is whether the affirmative act of planting the tree coupled with the subsequent failure adequately to inspect and maintain the site constituted active wrongdoing.

The expression 'active wrongdoing' was first used in this State in Hart v. Board of Chosen Freeholders of Union, 57 N.J.L. 90, 29 A. 490 (Sup.Ct.1894). There, the court, holding the county liable for injuries resulting from its creation of an unguarded excavation in a public highway, said:

'We have not been pointed to any precedent extending exemption from liability to cases of Active wrongdoing, nor are such precedents to be discovered. There is no reason arising out of public policy why municipal corporations should be shielded from liability when a private injury is inflicted by their wrongful acts, as distinghished from mere negligence. The grounds on which the exemption has been rested in the one class of cases are inapplicable to the other class.' (Italics added.) Id., 57 N.J.L. at p. 93, 29 A. at p. 491.

Following the lead of Hart, our courts have often found active wrongdoing (or 'positive misfeasance' as they sometimes call it) where the plaintiff was injured by a municipally-created public nuisance--or-dinarily, an obstruction in the public way entailing unreasonable risk of harm to travelers. E.g., Milstrey v. City of Hackensack, 6 N.J. 400, 79 A.2d 37 (1950); Fredericks v. Town of Dover, 125 N.J.L. 288, 15 A.2d 784 (E. & A. 1940); Taverna v. City of Hoboken, 43 N.J.Super. 160, 128 A.2d 11 (App.Div.1956), certiorari denied 23 N.J. 474, 129 A.2d 604 (1957). The negligent creation of such a public nuisance is usually the result of an affirmative act accompanied or followed by an omission. It is the omission which transmutes the condition created by the prior affirmative act from a lawful obstruction into a nuisance. The affirmative act of creation and the accompanying or subsequent omission form a sequence of events leading up to and causing injury to the traveler. Our courts have held that an affirmative act in the causative sequence resulting in injury is sufficient to sustain municipal liability. The last event in the sequence may be non-action, but the total sequence constitutes active wrongdoing. Hartman v. City of Brigantine, 42 N.J.Super. 247, 259, 126 A.2d 224 (App.Div.1956), affirmed 23 N.J. 530, 129 A.2d 876 (1957). Hence, municipalities have regularly been held liable to injured travelers for creating an obstruction in the public way and either contemporaneously or subsequently omitting to provide adequate safeguards. e.g., Fisher v. Town of Nutley, 120 N.J.L. 290, 199 A. 40 (E. & A.1938); Messier v. City of Clifton, 24 N.J.Super. 133, 93 A.2d 600 (App.Div.1952); Reardon v. Borough of Wanaque, 132 N.J.L....