On appeal from a judgment of the Supreme Court, whose opinion is reported in 114 N.J.L. 227.
For the appellant, Theodore D. Parsons (John J. Quinn, on the brief).
For the respondent, Harold McDermott.
The opinion of the court was delivered by
HEHER, J. The nonsuit was erroneous. The general rule is that one who sustains special damage from a common nuisance has an action therefor against the creator of the nuisance, although the latter may also be subject to indictment. But there is a firmly established exception to this rule, grounded in "ancient precedent and public policy," that, in the absence of statutory provision to the contrary, a municipality is not liable to an individual for its failure to exercise an imperative governmental function, or for the negligence of its officers or agents in the performance of a public duty imposed on it by law, whereby a public wrong has been done for which an indictment will lie. The injurious consequences of such a default may not be repaired by private action; the wrong is remediable only by indictment or presentment. Ansbro v. Wallace, 100 N.J.L. 391; Buckalew v. Freeholders of Middlesex, 91 Id. 517; Kehoe v. Rutherford, 74 Id. 659; Hart v. Freeholders of Union, 57 Id. 90; Waters v. Newark, 56 Id. 361; Jersey City v. Kiernan, 50 Id. 246; Town of Union ads. Durkes, 38 Id. 21; Pray v. Mayor, &c., of Jersey City, 32 Id. 394; Livermore v. Board of Freeholders of Camden, 31 Id. 507; Freeholders of Sussex v. Strader, 18 Id. 108. This was the rule at common law. Russell v. The Men of Devon, 2 T.R. 667; Gibson v. Mayor, &c., of Preston, L.R. 5 Q.B. 218; Mersey Docks and Harbour Board Trustees v. Gibbs, 11 H.L. Cas. 686; Lane v. Cotton, 1 Salk. 17; 1 Ld. Raym. 646; Whitfield v. LeDespencer, Cowp. 754; Sutton v. Clarke, 6 Taunt. 29.
There is, of course, a well recognized distinction, in respect of liability for negligence, between the exercise of a governmental function or duty imposed upon the municipality by law for the benefit of the public, and from the performance of which no profit or advantage is derived, and powers conferred for the accomplishment of corporate purposes essentially special or private in character, in respect of which the municipality stands upon the same footing as a private corporation. Meredith, 36 N.H. 284; Kelly v. City of Boston, 186 Mass. 165; 71 N.E. Rep. 299; Bigelow v. Inhabitants of
Randolph, 80 Mass. 541; Mersey Docks and Harbour Board Trustees v. Gibbs, supra.
Generally, the test of liability to a private action for special damage is whether such damage is or is not a part of a public wrong for which an indictment would lie. Olesiewicz v. Camden, 100 N.J.L. 336; Jersey City v. Kiernan, supra; Waters v. Newark, supra; Hart v. Freeholders of Union, supra. But this exemption from liability does not extend to private injury resulting from active wrongdoing chargeable to the municipal corporation. Kehoe v. Rutherford, supra; Callan v. Passaic, 104 Id. 643; Florio v. Jersey City, 101 Id. 535; Ansbro v. Wallace, supra; Hart v. Freeholders of Union, supra; Cochran v. Public Service Electric Co., 97 Id. 480; Lydecker v. Freeholders of Passaic, 91 Id. 622; Martin v. Asbury Park, supra; Olesiewicz v. Camden, supra; Doran v. Asbury Park, 91 Id. 651.
The evidence adduced here exhibits an indictable public wrong. Compare Watkins v. Freeholders of Atlantic, 73 N.J.L. 213; Wild v. Paterson, 47 Id. 406; Johnson v. Board of Education of Wildwood, 102 Id. 606. 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 postive, affirmative act, "wrongful in itself, and detrimental to the plaintiff." Town of Union ads. Durkes, supra; Hart v. Freeholders of Union, supra. So tested, the evidence here presents a case of active wrongdoing attributable to the municipal corporation. The misfeasance consisted in the building of a ramp so fashioned as to constitute a place of danger. In constructing this sloping passageway, without guard rails or barriers upon the adjoining ground levels, or other device adequate to protect against injury persons exercising reasonable care in the
use of the premises, the municipality was the active agent or instrument in the creation of a condition perilous to human safety on lands devoted by it to a public footway extending to its municipal building; it was directly responsible for the dangerous construction that, in the darkness of night particularly, constituted an ever present menace to the personal safety of the users of the premises. This is not a case of mere neglect by the municipality, or negligence in the performance of a public duty imposed upon it by law; nor is it classable as the negligent performance of a public duty directly imposed by law on its officers. The doctrine of respondeat superior is not, in such circumstances, applicable. Ansbro v. Wallace, supra; Paterson v. Erie Railroad Co., 78 N.J.L. 592; Florio v. Jersey City, supra.
The wrongdoing here charged is no less than positive misfeasance within the contemplation of our cases. Misfeasance differs from malfeasance or nonfeasance. It has been defined as the wrongful and injurious exercise of lawful authority, or the doing of a lawful act in an unlawful manner, while malfeasance is doing an act which is positively unlawful or wrong. Bouvier's Unabridged Law Dictionary (Rawle's 3 d Revision) 2224. In Cochran v. Public Service Electric Co., supra, where a motor truck driven by the injured plaintiff collided in the night time with an unlighted safety isle in a public highway, Mr. Justice Swayze, speaking for this court, applied the ruling principle in this jurisdiction: "The safety isle constituted such an obstruction that if it was not properly lighted it might become a nuisance and although this nuisance would be due to the negligence of the city in failing to light the obstruction it had created, the city would not escape liability under the rule of Freeholders of Sussex v. Strader, 18 Id. 108, but would be liable for positive misfeasance as in Hart v. Freeholders of Union, 57 Id. 90. The primary duty to ...