Thompson v. Board of Ed., City of Millville, A--304

• Decision Date: 27 June 1952
• Docket Number: No. A--304,A--304
• Citation: 20 N.J.Super. 419,90 A.2d 63
• Parties: THOMPSON et ux. v. BOARD OF EDUCATION, CITY OF MILLVILLE.
• Court: New Jersey Superior Court — Appellate Division

Page 419

20 N.J.Super. 419

90 A.2d 63

THOMPSON et ux. v. BOARD OF EDUCATION, CITY OF MILLVILLE.

No. A--304.

Superior Court of New Jersey, Appellate Division.

Argued June 16, 1952.

Decided June 27, 1952.

Nathaniel Rogovoy, Millville, argued the cause for the plaintiffs-appellants.

Lawrence N. Park, Camden, argued the cause for the defendant-respondent (M. Joseph Greenblatt, Vineland, Attorney).

Before Judges EASTWOOD, BIGELOW and FRANCIS.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

The question for determination is whether, under the allegations of the plaintiff's amended complaint, her action is barred by the provisions of N.J.S.A. 18:5--30. Under a different theory of law, the same factual situation is presented in Thompson v. Board of Education, City of Millville, 12 N.J.Super. 92, 79 A.2d 100 (Cty.Ct.1951), wherein the court dismissed the plaintiff's action on the pleadings. Thereafter, the plaintiff was permitted to file an amended complaint. Subsequent to the filing of defendant's answer, it again successfully moved for judgment of dismissal on the pleadings, setting up N.J.S.A. 18:5--30 as a bar to plaintiff's action and plaintiff appeals therefrom.

In her complaint, plaintiff asserts that on September 8, 1950, she was invited to enter the Millville Memorial High School by a duly authorized agent of defendant; that:

'3. At said time and place the defendant, by its agents, servants and employees, maintained a nuisance in said Millville Memorial High School and by its acts of positive wrongdoing and misfeasance caused the floors in the corridors of said Millville Memorial High School and of the gymnasium to be highly and improperly waxed and polished and to place upon the floors of the corridors and the gymnasium excessive wax, polish, oil, and other substances, creating a dangerous and hazardous condition for invitees.

'4. As a direct and proximate consequence, of said active wrongdoing and positive acts of misfeasance, said plaintiff, Ruth M. Thompson, slipped and fell in said Millville Memorial High School and suffered a fracture of the surgical neck of the left femur, and was injured in many other ways and respects.'

N.J.S.A. 18:5--30, relied upon as a bar to plaintiff's action, provides:

'No 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.'

In the United States, public education, including that of elementary, high school, or college grade, is universally recognized as a public or governmental function of the state. With respect to school districts, school boards, or other agencies or authorities created exclusively for school purposes, a large number of courts have observed that they are mere agencies or instrumentalities of the state, established for the sole purpose of administering without profit the state system of public education. Several courts have pointed out that, as to tort liability, such agencies or authorities occupy a status different from that of municipal corporations generally, which ordinarily have a dual character and which may exercise proprietary as well as governmental functions. Although the authorities are far from uniform in this matter, various exceptions or limitations have been recognized or adopted by some courts in connection with the rule of tort nonliability as applied to certain agencies or authorities in charge of public schools or public institutions of higher learning, providing, of course, that the particular agency or authority is amenable to suit and that it is the proper party defendant. These exceptions may be summarized as permitting recovery: (1) for a tort arising out of, or committed in the performance of a proprietary as distinguished from a governmental function or activity; (2) for damage or injury to private real property or property rights in respect thereto or consequential injuries thereon, resulting from a trespass or the creation or maintenance of a nuisance; (3) for the taking or damaging of private property for public use without compensation; (4) for personal injury or death caused by the creation or maintenance of a nuisance; (5) for injury or death caused by an active or positive wrong, or a wilful or intentional act; (7) where recovery may be predicated upon breach of contract rather than tort; and (8) the view has been adopted by some courts, notably those of New York, that a school district or a school board may be liable for its own acts or omissions as distinguished from those of its officers, agents, or employees. Statutes have been enacted in some jurisdictions which waive the state's immunity from liability in tort, and such a statute has been construed as applicable in connection with state normal schools and other institutions of higher learning over which the state exercised direct control. On the other hand, the legislature, in the absence of a constitutional prohibition, ordinarily has the power by statute to render an agency or authority in charge of public schools or public institutions of higher learning totally or partially immune from tort liability. Nevertheless, even assuming that the general rule of immunity is arbitrary, harsh, and unjust in requiring the individual alone to bear an injury, and that society, in keeping with the modern trend, should afford relief, the courts generally have taken the view that it is for the legislature and not the courts to abrogate or change the rule.

'* * * it is the general rule in practically every jurisdiction in this country, outside the State of New York, that, in the absence of statutory liability, school districts, school boards, or similar school agencies or authorities, are not liable in tort for injuries or damage caused by negligence in the performance of governmental functions.' 160 A.L.R. 38, Annotation, Schools-Tort Liability.'

Johnson v. Board of Education, 102 N.J.L. 606, 133 A. 301 (E. & A.1926); McKnight v. Cassady, 113 N.J.L. 565, 174 A. 865 (E. & A.1934); Barnett v. Pulda, 116 N.J.L. 141, 182 A. 879 (E. & A.1936) '* * * since governmental agencies or organizations in charge of public schools or public institutions of higher learning, * * * ordinarily are mere agents or instrumentalities of the state and subject to legislative control, it may be broadly stated that, unless prohibited by constitution, the common-law rule of tort immunity of such agencies or organizations may be abrogated or modified by statute.' 160 A.L.R., supra, at p. 85.

See also 47 Am.Jur., Schools, sec. 58, p. 337; 18 McQuillin, Municipal Corporations, 3d Ed., sec. 53.01.

In New Jersey, the pertinent rule is aptly stated by Mr. Justice Ackerson, speaking for the present Supreme Court, in the case of Kress v. City of Newark, 8 N.J. 562, 86 A.2d 185, 190 (1952), wherein he states:

'It is a rule of long standing in this State that a municipality in the performance of a governmental function is carrying out a public duty and, in absence of a statute to the contrary, is not liable for negligence in the performance of such duty except upon proof of active wrongdoing or positive misfeasance chargeable to the municipality itself as distinguished from mere nonfeasance or neglect. Allas v. Borough of Rumson, (115 N.J.L. 593, 181 A. 175, 102 A.L.R. 648) supra; Truhlar v. Borough of East Paterson, 4 N.J. 490, 494, 73 A.2d 163 (1950). The most recent expression of the applicable principle is to be found in Milstrey v. City of Hackensack, 6 N.J. 400, 408, 79 A.2d 37, 41, (1951) where we said: 'A municipality is accountable in tort for its own positive misfeasance, generally classified as 'active wrongdoing' in the cases, but not for mere nonfeasance. The corporate body is not chargeable with the negligence of its officers or agents in the performance of a public duty laid upon it by law, unless the wrongdoing is its own by direction or participation. 'Active wrongdoing' and 'positive misfeasance' have the same essential connotation. Misfeasance is the wrongful and injurious exercise of lawful authority or the doing of a lawful act in an unlawful manner.''

See also the opinion of Mr. Justice Burling in Truhlar v. Borough of East Paterson 4 N.J. 490, 73 A.2d 163 (1950), wherein he thoroughly and comprehensively digests many cases with reference to 'active wrongdoing'; and the opinion of Mr. Justice Heher, in Allas v. Rumson, 115 N.J.L. 593, 181 A. 175, 102 A.L.R. 648 (E. & A.1935), wherein he discusses the distinction between governmental and proprietary operations.

The question posed by this appeal clearly raises the issue as to whether N.J.S.A. 18:5--30 bars recovery in an action charging active wrongdoing on the part of the school district. Clearly, the wrong charged to have been committed by the defendant was allegedly caused by the work performed by its employees in the care and maintenance of the high school building. It is also clear that the accident causing the plaintiff's injuries occurred in a public building, to wit: the high school building, devoted exclusively to governmental purposes. In the case of Allas v. Rumson, supra, 115 N.J.L. at pages 595, 596, 181 A. at page 176, Mr. Justice Heher, speaking for the Court of Errors and Appeals, states:

'* * * It remains to consider whether it falls into the category of active wrongdoing imputable to the defendant municipality. There is some confusion in the adjudicated cases as to what constitutes active wrongdoing by a municipality, and the line of demarcation is not always clearly maintained. The difficulty usually lies in the application of the principle to the facts of the particular case. The true distinction seems to be whether the private injury has resulted from a wrongful act or positive misfeasance, as distinguished from mere negligence. A private action must rest upon some positive, affirmative act, 'wrongful in itself, and detrimental to the plaintiff.' Durkes v. Town of Union (38 N.J.L. 21), ...