Kane v. Bd. of Educ. of Town of Montclair, Essex County

• Decision Date: 07 November 1941
• Citation: 20 N.J.Misc. 7,23 A.2d 277
• Parties: KANE v. BOARD OF EDUCATION OF TOWN OF MONTCLAIR, ESSEX COUNTY.
• Court: New Jersey Supreme Court

23 A.2d 277

20 N.J.Misc. 7

KANE

v. BOARD OF EDUCATION OF TOWN OF MONTCLAIR, ESSEX COUNTY.

Supreme Court of New Jersey, Passaic County.

Nov. 7, 1941.

Action by John F. Kane against the Board of Education of the Town of Montclair in the County of Essex for injuries sustained as the result of a fall down a flight of steps located adjacent to a school building. On motion to strike complaint on ground that it is insufficient in law.

Motion granted and both counts of complaint stricken.

Sullivan & Sullivan, of Passaic, for plaintiff.

George S. Harris, of Montclair, for defendant.

JOSEPH G. WOLBER, Circuit Judge.

This matter comes before me on a motion to strike the complaint on the ground that it is insufficient in law. Supreme Court Rule 40, N.J.S.A. tit. 2.

The complaint is set forth in two counts. They allege that the plaintiff sustained personal injuries as a result of a fall on the evening of November 14, 1939, down a flight of steps located adjacent to the George Inness School in Montclair. Plaintiff alleges he attended a theatrical performance of The Studio Players in that school building and that the building and premises were under the control of the defendant. He further contended that the defendant's conduct was tortious in that it failed to keep lights burning to illuminate the stairway by which the plaintiff sought to leave the building. Admitting for the purposes of this motion all the facts well pleaded in the complaint, the defendant asserts that neither count of the complaint discloses a cause of action.

R. S. 18:5-30, N.J.S.A. 18:5-30, provides: "No 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." Source L. 1933, c. 460, Sec. 1, p. 1550.

Common Pleas Judge Hartshorne, in Falcone v. Board of Education of Newark, Essex County Court of Common Pleas 1939, 17 N.J.Misc. 75, 4 A.2d 687, considered the question of how far the public school system of this state is, as such, liable for injury to the person. In that case, while plaintiff's intestate, a girl, was using a washroom 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. In determining the real question, he had to appraise the effect of the aforesaid statute. He found that no language could be clearer than the simple words of the 1933 act and deduced an intent thereof to modify the common law, not only from the generality of its language, but from the fact that the law was to apply "any law to the contrary notwithstanding."

In Alias v. Borough of Rumson, 1935, 115 N.J.L. 593, 181 A. 175, 102 A.L.R. 648, Mr. Justice Heher said:

"The general rule is that one who sustains special damage from a common nuisance has an action therefor against the creator of the nuisance, although the latter may also be subject to indictment. But there is a firmly established exception to this rule, grounded in 'ancient precedent and public policy,' that, in the absence of statutory provision to the contrary, a municipality is not liable to an individual for its failure to exercise an imperative governmental function, or for the negligence of its officers or agents in the performance of a public duty imposed on it by law, whereby a public wrong has been done for which an indictment will lie. The injurious consequences of such a default may not be repaired by private action; the wrong is remediable only by indictment or presentment. * * *

"There is, of course, a well-recognized distinction, in respect of liability for negligence, between the exercise of a governmental function or duty imposed upon the municipality by law for the benefit of the public, and from the performance of which no profit or advantage is derived, and powers conferred for the accomplishment of corporate purposes essentially special or private in character, in respect of which the municipality stands upon the same footing as a private corporation. * * *

"Generally, the test of liability to a private action for special damage is whether such damage is or is not a part of a public wrong for which an indictment would lie. * * * But this exemption from liability does not extend to private injury resulting from active wrongdoing chargeable to the municipal corporation. * * *

"There is some confusion in the adjudicated cases as to what constitutes active wrongdoing by a municipality, 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. The true distinction seems to be whether the...