Maule v. Conduit & Foundation Corp.

• Decision Date: 02 July 1973
• Citation: 124 N.J.Super. 488,307 A.2d 651
• Parties: Ann B. MAULE, as general administrator and as administrator ad prosequendum of the estate of Hamilton B. Maule, Jr., and Ann B. Maule, Plaintiffs, v. CONDUIT AND FOUNDATION CORP., a foreign corporation authorized to do business in the State of New Jersey, and the State of New Jersey, Department of Transportation, Defendants.
• Court: New Jersey Superior Court

Page 488

124 N.J.Super. 488

307 A.2d 651

Ann B. MAULE, as general administrator and as administrator

ad prosequendum of the estate of Hamilton B.

Maule, Jr., and Ann B. Maule, Plaintiffs, v. CONDUIT AND FOUNDATION CORP., a foreign corporation

authorized to do business in the State of New

Jersey, and the State of New Jersey,

Department of Transportation,

Defendants.

Superior Court of New Jersey,

Law Division.

July 2, 1973.

Peter A. Benz, Mendham, for plaintiffs.

Carol A. Ferentz, East Orange, for defendant Conduit and Foundation Corp. (John W. Taylor, East Orange, attorney).

Nickolas F. Monteforte, Newark, for defendant State of New Jersey, Dept. of Transportation (George F. Kugler, Jr., Atty. Gen., attorney).

GASCOYNE, J.C.C., Temporarily Assigned.

Plaintiff instituted a wrongful death action alleging that on August 31, 1971, at about 11:17 P.M. Hamilton B. Maule, Jr. (Maule), age 23, was operating his vehicle in a westerly direction on Route 46 in the vicinity of Edwards Road, Parsippany-Troy Hills, New Jersey. She further alleged that Conduit and Foundation Corporation (Conduit) was repairing Route 46 at this point and maintained the construction in such negligent manner as to cause the death of Maule.

By leave of court an amended complaint was filed joining the State of New Jersey and the Department of Transportation of the State of New Jersey, both of whom will hereinafter be referred to as the State. The State moved for summary judgment, contending that since the cause of action arose prior to July 1, 1972, the effective date of the New Jersey Tort Claims Act (N.J.S.A. 59:1--1 et seq.), the doctrine of sovereign immunity is applicable. Both plaintiff and Conduit contended that since the cause of action antedated Willis v. Dept. of Conservation and Economic Development, 55 N.J. 534, 264 A.2d 34 (1970), the State is liable to respond in tort. The court must then resolve whether the tort immunity is or is not applicable in the hiatus between Willis and July 1, 1972. Since there are no reported cases determining this problem, and since it is a recurring problem, it may be advisable to examine the situation in depth.

Over the years our courts have whittled away the doctrine of sovereign immunity as applied to political subdivisions, Milstrey v. Hackensack, 6 N.J. 400, 79 A.2d 37 (1951); Kress v. Newark, 8 N.J. 562, 86 A.2d 185 (1952); Hartman v. Brigantine, 42 N.J.Super. 247, 126 A.2d 224 (App.Div.1956), aff'd 23 N.J. 530, 129 A.2d 876 (1957); Schwartz v. Stockton, 32 N.J. 141, 160 A.2d 1 (1960); McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820 (1960); Peer v. Newark, 71 N.J.Super. 12, 176 A.2d 249 (App.Div.1961), certif. den. 36 N.J. 300, 177 A.2d 342 (1962); Hayden v. Curley, 34 N.J. 420, 169 A.2d 809 (1961); Goldberg v. Housing Authority, Newark, 38 N.J. 578, 186 A.2d 291 (1962); Amelchenko v. Freehold, 42 N.J. 541, 201 A.2d 726 (1964); Titus v. Lindberg, 49 N.J. 66, 228 A.2d 65 (1967); B. W. King, Inc. v. West New York, 49 N.J. 318, 230 A.2d 133 (1967); Jackson v. Hankinson, 51 N.J. 230, 238 A.2d 685 (1968); Bergen v. Koppenal, 52 N.J. 478, 246 A.2d 442 (1968); Kent v. Hudson County, 102 N.J.Super. 208, 245 A.2d 747 (App.Div.1968), aff'd 53 N.J. 546, 251 A.2d 760 (1969), and to certain autonomous arms of the State, Taylor v. New Jersey Highway Authority, 22 N.J. 454, 126 A.2d 313 (1956). The judiciary steadfastly refused to accept tort litigation directly against the State. Fitzgerald v. Palmer, 47 N.J. 106, 219 A.2d 512 (1966). The shield against civil liability continued unabated until a chink was put in the armor by P.T. & L. Constr. Co. v. Comm'r of Transportation, 55 N.J. 341, 262 A.2d 195 (1970), wherein our Supreme Court held that immunity in contract liability should be abrogated. The State was held liable for contracts made by it even though the court recognized that an appropriation effecting such judgments would be the sole jurisdiction of the Legislature.

Chronologically, Willis, supra, followed. There an infant was injured by a bear which had been caged in a New Jersey State Park. The court said:

Unlike the situation in Fitzgerald v. Palmer, the claim now before us does invite consideration of the basic question of judicial abstention in tort matters, for here, according to the complaint, the State itself generated the risk of injury by caging a ferocious animal without suitable safeguards despite the manifest danger to persons the exhibit was intended to attract.

It is plainly unjust to refuse relief to persons injured by the wrongful conduct of the State. No one seems to defend that refusal as fair. There has been a steady movement away from immunity * * *. (at 537, 538 of 55 N.J., at 36 of 264 A.2d.)

In response to this judicial pronouncement the Legislature enacted L. 1970, c. 98 (N.J.S.A. 52--4A--1), which precluded civil liability not based on constitutional grounds until July 1, 1971. Subsequent litigation in the P.T. & L. case occurred and the trial court dismissed the case prior to decision on the merits, on the ground of the aforementioned legislation. The Supreme Court certified the matter before argument in the Appellate Division. In a letter to the court the Attorney General conceded that this interim legislation 'was designed * * * to give both the executive and legislative branches the opportunity to study the problems resulting from the P.T. & L. and Willis decisions without any prejudice to parties who might, during the intervening period, continue to bring their claims before the Subcommittee on Claims.' P.T. & L. Constr. Co. v. Comm'r of Transportation, 57 N.J. 439, 441, 273 A.2d 353, 354 (1971). The court affirmed 'without prejudice, however, to such further judicial proceedings by plaintiff as may become appropriate as a result of legislative action or in action before July 1, 1971' (at 441, 273 A.2d at 354).

N.J.S.A. 52:4A--1 (L.1970, c. 98, § 1), effective June 15, 1970, was amended by L.1971, c. 187, § 1, effective June 2, 1971, precluding any action in tort or contract for recovery or money damages where the cause of action occurred prior to April 1, 1972. An additional amendment followed which prohibited suits where the cause of action occurred prior to July 1, 1972. The legislative course of action culminated in the passage of the New Jersey Tort Claims Act (N.J.S.A. 59:1--1 to 59:12--3) and the New Jersey Contractual Liability Act (N.J.S.A. 59:13--1 to 59:13--10).

It is with this legislative and judicial background that a determination of the problem at hand is undertaken, I.e., will a cause of action arising subsequent to Willis, supra and prior to July 1, 1972 be covered by the Tort Claims Act? If it was not so intended, is the act unconstitutional because there is a breach of the equal protection of the law clause of the U.S. Constitution or the New Jersey Constitution.

The New Jersey Tort Claims Act represents the legislative response to Willis. The legislative intent is set forth in N.J.S.A. 59:1--2 as follows:

The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while A private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carrying out the above legislative declaration. (Emphasis supplied)

Interestingly, the emphasized portion is almost verbatim the language used by the court in the Fitzgerald case, Supra; portions also set forth the philosophy of the Supreme Court in reaching its decision in Willis. Thus, the Legislature has adopted as public policy the enunciations of our highest court.

Another portion of the act, N.J.S.A. 59:12--3, provides that the act shall not apply to the Willis case. When this section is read in combination with N.J.S.A. 59:14--4(a), which provides that the act shall become effective on July 1, 1972, there is only one conclusion--that the Legislature did not intend to give recognition to causes of action arising prior to July 1, 1972.

That there is a vast difference between tort and contractual liability was recognized by the Supreme Court in the third P.T. & L. case, 60 N.J. 308, 288 A.2d 574 (1972), when it came on for a review as a result of the legislative enactment of c. 187 extending the 1970 statute to April 1, 1972. Plaintiff moved to restore the cause to the calendar and the court granted the motion. The court held that whether a state is suable within its own courts without legislative consent is a matter of state constitutional law, with due protection of constitutional guarantees of both the Federal and State Constitutions. The court went on to state:

Unlike claims in tort as to which the Legislature may understandably be troubled in deciding upon a substantive basis for State liability, there is no comparable difficulty when the claim rests upon an express contract. (at 315, 288 A.2d at 578)

When the foregoing language is read with the following language in Willis:

But there are strong reasons why we should not accept other claims already in being. There are no appropriations to pay the obligations the court might declare, nor even, perhaps, to handle the caseload which may ensue. The executive branch will need time to prepare for the additional burden. Then, too, the Legislature may wish to require timely notice of claims to permit an opportunity to investigate. Or the Legislature may choose to...