Stringfield v. City of Hackensack

Citation171 A.2d 361,68 N.J.Super. 38
Decision Date26 May 1961
Docket NumberNo. A--78,A--78
PartiesDoris Carlsen STRINGFIELD, Plaintiff-Respondent, v. CITY OF HACKENSACK, a municipal corporation, Defendant-Appellant.
CourtNew Jersey Superior Court – Appellate Division

William R. Morrison, Hackensack, for defendant-appellant (Morrison, Lloyd & Griggs, Hackensack, attorneys).

Harry Chashin, Paterson, for plaintiff-respondent (Marcus & Levy, Paterson, attorneys; Harry Chashin, Paterson, of counsel).

Before Judges CONFORD, FREUND and KILKENNY.

The opinion of the court was delivered by

FREUND, J.A.D.

This appeal by the City of Hackensack projects the issue of whether a municipally-owned, metered parking lot is a 'governmental' or 'proprietary' function for purposes of tort liability.

Plaintiff suffered a fractured hip and other painful injuries when she slipped and fell on the ice-covered lot. The accident occurred on January 18, 1958; five inches of snow had recently fallen in the area, followed by rain, sleet and sub-freezing temperatures. Plaintiff had driven to Hackensack with her mother in order to do some shopping. She had turned off State Street into the city-owned and operated lot adjoining the rear of several retail stores, whose front entrances were located on Main Street, the principal shopping area of the city. She parked in front of a meter, emerged from the car, and as she proceeded to walk behind the vehicle she slipped and fell.

Suit was instituted in the Bergen County Court, charging the city with negligence in maintaining the lot in a dangerous and unsafe condition. The municipality countered with assertions of contributory negligence and assumption of risk; in addition, the city claimed that, as a municipal corporation, it was 'immune from liability under the facts of this case.' At trial, defendant moved for dismissal at the close of plaintiff's proofs on the ground (among others) of municipal immunity; the court denied the motion, concluding that the ownership and operation of the parking lot was a proprietary activity. An identical motion at the close of all the evidence was likewise rejected by the trial judge, who proceeded to charge the jury in terms of ordinary negligence. The jurors returned a verdict in plaintiff's favor in the amount of $10,000, upon which the judgment here under review was entered. The city does not contest on this appeal the sufficiency of the evidence to support the jury's conclusions with respect to negligence, contributory negligence, and assumption of risk.

Hackensack's sole position on this appeal is that the question of whether municipal parking facilities constitute a 'governmental' function has already been resolved in the affirmative by the Supreme Court in Camden Plaza Parking v. City of Camden, 16 N.J. 150, 107 A.2d 1 (1954). The issue in Camden Plaza was whether a city could lease municipally-owned lands to a private corporation for the construction and operation of an off-street public parking structure. The court held that there was no statutory authority to so lease in the absence of a parking authority under N.J.S.A. 40:11A--1 et seq., and, since Camden had not created such an authority, the attempted arrangement was illegal and void. Prior to reaching the crux of the litigation, Justice Brennan discussed (16 N.J. at p. 154, 107 A.2d at p. 3), in general terms, the power of a municipality to establish public parking facilities:

'Action by a municipality to relieve traffic congestion through the establishment of off-street public parking facilities is the exercise of a public and essential governmental function, and publicly-owned lands used for such purposes are devoted to a public use. The parking crisis in the modern day threatens the very welfare of the community, and statutes and court decisions recognize that public lands employed by public bodies for public off-street parking are devoted to a public purpose. R.S. 40:60--25.1, N.J.S.A., R.S. 40:56--1.1, N.J.S.A., R.S. 40:11A--1; * * *.'

We do not consider Camden Plaza dispositive of the issue here confronting us. The language relied upon is essentially repetitive of the court's prior exposition in De Lorenzo v. City of Hackensack, 9 N.J. 379, 384--85, 88 A.2d 511 (1952), declaring the municipal maintenance of off-street parking facilities, designed to meet the problem of traffic congestion, to be a proper public purpose within statutory and constitutional limitations. This is of course a sound proposition which is no longer open to serious doubt. Cf. City of Trenton v. Lenzner, 16 N.J. 465, 471, 109 A.2d 409 (1954). See cases collected in Annotation, 8 A.L.R.2d 373, 375--78 (1949), and supplement thereto.

But to hold that a particular function undertaken by a governmental authority is properly in furtherance of a public--as opposed to a private-objective, for the purpose of expenditure of public funds, is not the equivalent of stamping the activity as 'governmental' for purposes of tort liability. The legislative powers of our municipalities must, unless otherwise authorized by the Legislature (subject to constitutional restrictions), be limited to those activities which contribute in some discernible fashion to the preservation and promotion of the public health, safety or welfare. N.J. Good Humor, Inc. v. Bradley Beach, 124 N.J.L. 162, 11 A.2d 113 (E. & A.1940); Hart v. Teaneck Township, 135 N.J.L. 174, 176, 50 A.2d 856, 169 A.L.R. 973. (E. & A. 1947); 2 McQuillin, Municipal Corporations, § 10.31, p. 647. See R.S. 40:48--1, 48--2, N.J.S.A. Thus, to construe an activity as 'governmental' in the sense that its purpose is consonant with the aims and objectives of governmental activity in a democracy, is not to resolve the question of the municipality's immunity in tort while engaging in that operation. This was succinctly pointed out in Weeks v. Newark, 62 N.J.Super. 166, 177, 162 A.2d 314, 320 (App.Div.1960), affirmed o.b., 34 N.J. 250, 168 A.2d 11 (1961):

'That the * * * (undertaking in question) is in the interest of public health or welfare is * * * not a valid test (for purposes of determining tort liability). Nearly all municipal activities will serve the health, comforts, safety or convenience of the inhabitants, and thus could lay claim to classification as governmental.'

As an example of the necessary divisibility of the two concepts, it is settled that a constitutional assault on the 'public' objective of a statute providing for the development of parking facilities will not succeed merely because the municipality is engaged in what heretofore may have been regarded as a private enterprise. McSorley v. Fitzgerald, 359 Pa. 264, 59 A.2d 142, 145 (Sup.Ct.1948); Barnes v. City of New Haven, 140 Conn. 8, 98 A.2d 523, 529 (Sup.Ct.Err.1953). Yet, as developed, infra, a significant factor in determining the 'governmental' or 'proprietary' character of an activity for purposes of tort liability is its historical development as an essentially public or private operation.

It must also be recognized that the policy goals underlying the two doctrines are substantially divergent, tending to encourage a difference in constructional approach. On the one hand, every intendment is in favor of the validity of municipal legislation, thereby drawing in the direction of a finding of the 'public' or 'governmental' nature of the undertaking. 2 McQuillin, supra, at p. 648. On the other hand, the understandable judicial reluctance to deprive, under modern-day conditions, an injured party of recovery for personal injuries on the sole basis of sovereign immunity has led to a whittling down of the immunity, in part by means of 'a more lenient attitude toward the proprietary classification.' Schwartz v. Stockton, 32 N.J. 141, 147, 160 A.2d 1 (1960).

The Court in Weeks v. Newark, supra, (62 N.J.Super. at p. 174, 162 A.2d at p. 319), construed the immunity provision of R.S. 40:9--2, N.J.S.A., as not insulating the municipality from liability for injury resulting from the use of those public buildings, structures or grounds which are devoted to a Proprietary function. Since the Weeks case also held that injuries upon municipal buildings, structures or grounds devoted to a Governmental function will not, under the statute, visit liability either upon the basis of simple negligence Or active wrong-doing, we need not consider the character of the city's neglect herein. Compare Kuchler v. New Jersey & N.Y.R.R. Co., 104 N.J.L. 333, 140 A. 329 (E. & A. 1928) with Kelly v. Curtiss, 29 N.J.Super. 291, 102 A.2d 471 (App.Div.1954), reversed on other grounds 16 N.J. 265 (1954); see Hayden v. Curley, 34 N.J. 420, 169 A.2d 809 (1961). Our inquiry is therefore narrowed to defining the nature of Hackensack's operation of the parking lot.

The governmental-proprietary distinction has been...

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