McCabe v. New Jersey Turnpike Authority

• Decision Date: 08 May 1961
• Docket Number: No. A--74,A--74
• Parties: Margaret E. McCABE and Francis McCabe, Plaintiffs-Respondents, v. NEW JERSEY TURNPIKE AUTHORITY, Defendant-Appellant. Joseph KAPCAR, Plaintiff-Respondent, v. NEW JERSEY TURNPIKE AUTHORITY, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 26

35 N.J. 26

170 A.2d 810

Margaret E. McCABE and Francis McCabe, Plaintiffs-Respondents, v. NEW JERSEY TURNPIKE AUTHORITY, Defendant-Appellant.

Joseph KAPCAR, Plaintiff-Respondent, v. NEW JERSEY TURNPIKE AUTHORITY, Defendant-Appellant.

No. A--74.

Supreme Court of New Jersey.

Argued Feb. 6, 1961.

Decided May 8, 1961.

James P. Beggans, Jersey City, for defendant-appellant (Beggans & Keale, Jersey City, attorneys; James P. Beggans, Jersey City, of counsel; Robert E. Tarleton, Jersey City, on the brief).

William M. Feinberg, Bayonne, for plaintiffs-respondents (Feinberg, Dee & Feinberg, Bayonne, attorneys for plaintiffs-respondents Margaret E. McCabe and Francis McCabe; Leo H. Bergman, Bayonne, attorney for plaintiff-respondent Joseph Kapcar).

The opinion of the court was delivered by

SCHETTINO, J.

These are negligence actions for personal injuries and property damage sustained by plaintiffs as a result of an accident that occurred on the Newark Bay extension of the New Jersey Turnpike. Originally two actions were instituted and thereafter consolidated for trial. This appeal is from certain judgments entered on jury verdicts in favor of plaintiffs. We certified on our own motion while the cause was pending in the Appellate Division.

On March 20, 1958 at about 5:30 a.m., a snow alert was declared on the Turnpike. At approximately 8:15 a.m., plaintiff, Margaret McCabe and Catherine Smith were passengers in an automobile owned and operated by plaintiff Kapcar, traveling westerly on the New Jersey Turnpike bridge between Bayonne and Newark. It had snowed the night before. At this time the weather was 'very bad,' there was 'mixed snow and rain' and the surface of the turnpike was 'slushy.' As the car proceeded over the bridge there was a 'tremendous crash' and a 'terrific jolt in the car.' A 'great mass of ice and snow' had fallen from the overhead superstructure broken the windshield, dented the car roof, filled the car with ice and snow and injured Mrs. Smith, Mrs. McCabe and Mr. Kapcar.

Kapcar testified that as soon as he went under the superstructure he saw ice and snow falling 'all around.' After the accident he saw additional pieces of snow and ice falling and 'heard them popping all over the road.' He also testified that when he got on the turnpike at the interchange, there was no sign relative to weather conditions, nor was there a sign at the superstructure warning against falling ice and snow. This fact was substantiated by the Assistant to the Executive Director of the Turnpike Authority. Nor was there any way in which he could have turned around and gone off the turnpike.

A witness, who arrived at the scene soon after the accident, testified that he saw patches of snow and ice falling from the superstructure and estimated that their measurements 'varied from snowball size to sizes of maybe one or two cubic feet.' The state trooper who investigated the accident testified that he too saw ice and snow falling from the overhead structure, some of which cracked the windshield of his police car. The Traffic Engineer of the Turnpike Authority testified that from time to time reports were received of incidents involving the falling of ice and snow from Turnpike bridges resulting in property damage to vehicles and personal injury to persons in the vehicles.

Plaintiffs introduced testimony of a similar accident which had taken place six days before. A Mr. Feinman testified that on March 14, 1958 at about 8:15 a.m., he was traveling easterly over the same Turnpike bridge between Newark and Bayonne. It was snowing and the weather was 'nasty' and while he was under the superstructure 'a chunk of ice came flying down' from a sign and 'hit my windshield and cracked it.' He added that he saw 'plenty of ice falling that day.' After the incident he explained to a toll collector what had happened and later gave the same explanation to a state trooper, indicating the sign from which the ice fell. A copy of the state trooper's report of that incident was filed in the Turnpike Building at New Brunswick. Plaintiffs introduced weather reports of the United States Department of Commerce for the month of March 1958 in an effort to establish the similarity of the weather conditions on March 14 and March 20.

An expert witness for plaintiffs testified as to certain devices which might be used to prevent the formation and accumulation of ice and snow on the superstructure. In his opinion 'it would be feasible to protect the bridge from the build-up of ice and snow by means of radiant heat cables' and also, 'one other possibility * * * would be by the use of a chemical liquid which would have to be sprayed on at the time that any build-up would be anticipated.' On cross-examination, he admitted that he was unaware of any bridge of the size and type of the Turnpike structure on which were used radiant heating and chemical spraying. Although defendant objected to certain parts of the expert's testimony, it did not object to testimony concerning these two suggested plans.

In its answer defendant reserved the right to rely on the defense of sovereign immunity from suit, but before trial it agreed to eliminate that issue from the action. Defendant now attempts to distinguish between consent to suit and a concession that it is liable under ordinary principles of negligence. It argues that the question whether a state Turnpike authority can be sued for its negligent acts is distinct from the question whether, if amenable to suit due to legislative consent, it can be held liable where the contention is made that the act which is complained of was done in carrying out a governmental as distinguished from a proprietary function. Defendant, in effect, maintains that its responsibility should be confined within the limited concepts of municipal liability. We disagree.

Few states have broken away completely from the rule which renders them immune from tort liability. New York by statute has rendered itself and all its agencies and political subdivisions generally liable for torts. The statute provides: 'the state * * * waives its immunity from liability and action and * * * assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions * * * against individuals or corporations. * * *' N.Y.Ct.Cl.Act, § 8. See Muskopf v. Corning Hosp. Dist., 11 Cal.Rptr. 89, 359 P.2d 457 (Sup.Ct.1961). For a summary of the tort liability of the various states, see 29 N.Y.U.L.Rev. 1363 (1954).

The general rule in the United States is that state highway or turnpike authorities are agencies of the state and are therefore entitled to the protection of the rule of sovereign immunity. Thus, an action for negligence will not lie against such an agency except where there has been a waiver of the immunity which the state enjoys. Taylor v. New Jersey Highway Auth., 22 N.J. 454, 467, 126 A.2d 313 (1956). For a collection of cases, see Annotation 62 A.L.R.2d 1222, 1224 (1958) and see also 'The Applicability of Sovereign Immunity To Independent Public Authorities' 74 Harv.L.Rev. 714 (1961). But see Gerr v. Emrick, 283 F.2d 293 (3 Cir. 1960), certiorari denied Pennsylvania Turnpike Comm. v. Gerr, 365 U.S. 817, 81 S.Ct. 698, 5 L.Ed.2d 695 (1961), wherein it was held that the Turnpike Commission was not the Alter ego of the Commonwealth of Pennsylvania and the latter's immunity was not imputable to it.

In keeping with the general legislative unwillingness to break with the immunity doctrine, the majority of courts have been reluctant to construe consent provisions as authorizing liability for ordinary negligence unless the statute clearly so states. Thus, provisions which grant state highway authorities the power 'to sue or be sued' usually have been held to authorize only such actions as are necessary to carry out the business of the agency and not to authorize negligence actions. See 74 Harv.L.Rev., supra, at pp. 718 et seq. and 62 A.L.R.2d, supra, at p. 1232 (1958). Illustrative of this principle is the case of Kilberg v. Louisiana Highway Comm., 8 La.App. 441 (Ct.App.1928), where the statutory provision empowering the state highway commission to sue and be sued was held not to authorize an action for negligence. The court noted that the statute was silent as to which causes of action were authorized and stated that the legislature had not intended to create a right of action by which the commission would be deprived of funds appropriated for the execution of governmental functions.

The statute creating the New Jersey Turnpike Authority contains such a provision. N.J.S.A. 27:23--5(d). We have interpreted a like provision as authorizing negligence actions with reference to a similar authority, Taylor v. New Jersey Highway Auth., 22 N.J. 454, 126 A.2d 313 (1956), and not merely suits on consensual and property claims. Karp v. High Point Park Comm., 131 N.J.Eq. 249, 24 A.2d 860 (Ch.1942), affirmed 132 N.J.Eq. 351, 28 A.2d 118 (E. & A.1942). In Taylor plaintiff sustained injuries as a result of the alleged negligence in the maintenance of a building which had been condemned by the New Jersey Highway Authority. Mr. Justice Jacobs noted (22 N.J. at p. 467, 126 A.2d 313) that the statutory provision that the Authority can sue and be sued in its own name indicated a legislative intent that the Authority shall be liable at least to some extent. He stated (22 N.J. at p. 470, 126 A.2d 313) that the federal decisions persuasively point out that the doctrine of governmental immunity from suit is currently in disfavor and that express or implied authority to sue and be sued should be considered as sufficient to enable suits in tort as well as contract. He further stated (22 N.J. at p. 470, 126 A.2d at p. 322):

'The hostility towards the doctrine of governmental immunity is also evidenced in the states and its seems to us that pertinent statutory waivers should fairly receive as liberal contruction in...