Milstrey v. City of Hackensack

• Decision Date: 08 June 1950
• Docket Number: No. A--253,A--253
• Citation: 73 A.2d 747,8 N.J.Super. 221
• Parties: MILSTREY et al. v. CITY OF HACKENSACK et al.
• Court: New Jersey Superior Court — Appellate Division

Page 221

8 N.J.Super. 221

73 A.2d 747

MILSTREY et al. v. CITY OF HACKENSACK et al.

No. A--253.

Superior Court of New Jersey

Appellate Division.

Argued May 22, 1950.

Decided June 8, 1950.

George F. Losche, Hackensack, argued the cause for respondents.

Ralph W. Chandless, Hackensack, argued the cause for appellants (Chandless, Weller, Kramer & Frank, Hackensack, attorneys) (John Frank, Jr., Hackensack, of counsel, and Dominick Fondo, Hackensack, on the brief).

Before Judges JACOBS, DONGES and BIGELOW.

The opinion of the court was delivered by

BIGELOW, J.A.D.

The City of Hackensack and Lester K. Fishbough appeal from a judgment rendered against them and in favor of Clarisse Milstrey and her husband, for injuries received by Mrs. Milstrey in a sidewalk accident in October 1948. The City, in January 1947, had cut a trench through the sidewalk in order to repair a traffic light which was located at the curb, and when the apparatus had been fixed, filled in the hole, putting bituminous concrete on top and so made a smooth surface, level with the rest of the sidewalk. The work was done under the immediate direction of Mr. Fishbough, who was Superintendent of Public Works of the City. There was evidence from which it might be inferred that bituminous concrete was not a suitable material for more than a temporary patch. At any rate, in the course of time of patch became broken in spots, and at one place there was a depression of about an inch and a half or two inches. Mrs. Milstrey tripped in the hollow and was thrown to the ground.

A municipality is under the same liability as a private corporation, for torts committed in the exercise of its non-governmental or proprietary functions. Olesiewicz v. City of Camden, 100 N.J.L. 336, 126 A. 317 (E. & A.1924); Heintz v. Borough of Essex Felds, 107 N.J.L. 166, 151 A. 593 (E. & A.1930); Martin v. City of Asbury Park, 111 N.J.L. 364, 168 A. 612 (E. & A.1933). But the liability of the City of Hackensack cannot be sustained on this basis, for maintenance of traffic lights and of sidewalks is a governmental function.

A municipality is exempt in certain cases from liability for torts incidental to its political or governmental side. Until recent years, it was considered that a county or municipal corporation was not liable to an individual for special damage suffered by him from a public wrong caused either by a failure to perform a public duty, or by negligence in its performance. For example: Failure to provide a guard rail on the approach to a bridge; Board of Chosen Freeholders of Sussex County v. Strader, 18 N.J.L. 108, 35 Am.Dec. 530 (Sup.Ct.1840). Construction of manhole in street and failure to fill in the street so as to be level with it; Pray v. Mayor of Jersey City, 32 N.J.L. 394 (Sup.Ct.1868). Negligently laying out sewers so that they overflowed; Waters v. City of Newark, 56 N.J.L. 361, 28 A. 717; affirmed 57 N.J.L. 456, 35 A. 1131 (1894). Using an unsuitable material, sand, to repair a highway, in consequence of which it washed out, leaving a dangerous hole; Buckalew v. Board of Chosen Freeholders of Middlesex County, New Jersey, 91 N.J.L. 517, 104 A. 308, 2 A.L.R. 718 (E. & A.1918). In all these cases the municipality won. But more recent decisions narrow considerably the municipality's exemption. In Allas v. Borough of Rumson, 115 N.J.L. 593, 181 A. 175, 176, 102 A.L.R. 648 (E. & A.1935), reversing 114 N.J.L. 227, 176 A. 352, the plaintiff, leaving police headquarters at night and while still on the city property, fell into a 'depressed ramp' and was injured. The City had neither lighted the way nor placed a guard rail around the ramp. Our court of last resort held the municipality liable saying that 'exemption from liability does not extend to private injury resulting from active wrongdoing. * * * The true distinction seems to be whether the private injury has resulted from a wrongful act or...