Selph v. Town of Morristown

• Citation: 195 A. 862
• Parties: SELPH et al. v. TOWN OF MORRISTOWN.
• Decision Date: 03 January 1938
• Court: United States State Supreme Court (New Jersey)

195 A. 862

SELPH et al.

v. TOWN OF MORRISTOWN.

Supreme Court of New Jersey, Morris County.

Jan. 3, 1938.

Action at law by Edith L. Selph and William E. Selph against the Town of Morristown, a municipal corporation of the State of New Jersey, in which defendant moved to strike complaint as sham.

Motion denied.

C. Franklin Wilson, of Morristown, for the motion. King & Vogt and Harold A. Price, both of Morristown, opposed.

LAWRENCE, Supreme Court Commissioner.

Defendant moves to strike the complaint filed in this suit on the ground that it is sham. On the argument, however, it developed that the real question is whether defendant, a municipal corporation, can in any circumstance, in view of the enactment of chapter 460 of the Laws of 1933, P.L. 1550, N.J.St.Annual 1934, § *136— 1829B, be held liable for the negligence of its officers, agents, or employees, even though a cause of action stated by the person injured charges active wrongdoing on their part in that respect as the producing cause of the injury, for which compensation is sought. In other words, invoking the statute, it is urged in behalf of defendant that the complaint here considered should be stricken, because it attempts to set up a cause of action barred by it.

The statute provides that no county, municipality, or 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. The purpose of the act, it is said, was to clarify the existing law as to the nonliability of counties, municipalities, and school districts when public grounds or buildings are used and individuals are injured in such use. Cohen v. Morristown, 190 A. 851, 15 N.J.Misc. 288.

The complaint, in condensed narrative, recites that on February 12, 1937, and for many years prior, the town of Morristown had sole control and maintenance of the public park, commonly called and known as "The Green"; that while in the exercise of such control, by its duly authorized agents, it constructed and laid certain concrete walks connecting with others in the park, to facilitate the passing of pedestrians through it; that one of them, intended to be used by the public as a way of entrance and exit from and to the sidewalk of the adjacent street, and to connect with it, was so laid as to terminate at the edge of this sidewalk (also of concrete and in control of the town), but instead of being brought to the grade or level of the latter was, at its end, left at a height of three inches above it, thus creating a hazardous condition and endangering those lawfully using the walks. Mrs. Selph, it appears, on the day in question, had walked through the park and was about to step to the walk on the street, when, not observing the difference in the level of the two, fell and was injured. The present suit was brought to recover on the theory of negligence resulting from active...