On appeal from the Appellate Division of the Superior Court, whose opinion is reported in 8 N.J. Super. 221.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Burling and Ackerson. For reversal -- Justices Case, Oliphant and Wachenfeld. The opinion of the court was delivered by Heher, J. Case, J. (dissenting). Mr. Justice Oliphant and Mr. Justice Wachenfeld authorize me to say that they concur in this dissenting opinion.
[6 NJ Page 402] Clarisse Milstrey seeks damages for personal injuries resulting from a fall on a public sidewalk of Main
Street in Hackensack, New Jersey, at the southwest corner of Mercer Street. Her husband sues per quod. The municipality and its director of public works and engineer, Fishbough, are charged with negligence and the maintenance of a nuisance. There was a jury verdict for the plaintiffs against both defendants; and the judgment thereon was sustained by the Appellate Division of the Superior Court. 8 N.J. Super. 221. We certified the cause for appeal on defendants' petition.
This is the factual situation: On October 5, 1948, in mid-afternoon, Clarisse's heel "caught" in a broken and depressed sidewalk surface, six or seven feet from the curb, as she proceeded on a shopping tour, and she fell violently. There can be no doubt that the sidewalk at this point was perilous to travellers. It was "broken in spots" and there was "quite a hole in it -- about an inch and a half or two-inch depression," or so the jury might find from the testimony. The question is whether this was an actionable fault attributable to defendants. There was a Whelan drug store in the first-floor corner premises. The sidewalk was constructed of concrete. Some twenty and a half months before, on January 16, 1947, the defendant Fishbough, acting for the municipality, opened the concrete sidewalk and dug a trench to contain a conduit for the operation of intersectional traffic signals and, after the installation was made, "refilled" the excavation with the broken concrete, which was "rammed down" as a base, and then resurfaced the area with a paving composition known as "blacktop" or "roadrite," "even with" the surrounding concrete pavement. The patched surface was triangular in shape -- the long side nine feet, the short side four feet, and the hypotenuse a "curved, rounded corner." This surface disintegrated, while the adjoining pavement remained firm and unbroken, and the ultimate result was the sunken and broken area constituting a constant menace to travellers. The photographic evidence reveals a dangerous condition of long standing; it was not of recent origin.
The complaint alleges that the patched area was "so far out of alignment with the true pavement level as to constitute
a danger in its use and a nuisance." But the case was tried on the theory that blacktop is not adapted to the mending of concrete sidewalks and that either because of its unsuitability or negligence in the doing of the work, or both, there was here a subsidence and a breaking of the surface which caused the injury in suit. The point of variance between the allegata and the probata was not made; and it cannot now be raised for the first time. Miller v. Stieglitz, 113 N.J.L. 40 (E. & A. 1934).
The jury could well have found negligence giving rise to a public nuisance in the course taken here. Certainly, that would be so if the condition responsible for the injury had existed from the beginning; it is nonetheless so because the nuisance did not materialize until later, if that was a reasonably foreseeable eventuality. It was an affirmative act of wrongdoing grounded in negligent construction and a nuisance in legal intendment, actionable when special injury ensued.
Blacktop is a bituminous and stone composition with substantially less resistance than concrete, and therefore less durable than concrete. The city's foreman on the replacement work testified that blacktop is not "as good as concrete," and "doesn't last as long as concrete," but "will last for four or five years." He acknowledged that the city "usually" employed concrete in the repair of a concrete sidewalk "when it is a big job." Another witness, Simpson, a road supervisor for the Public Service Interstate Transportation Company, whose duties required almost daily attendance at the locus during the period in question, testified that this was one of the busiest intersections in Hackensack; that "in the beginning, after the (replacement) job was done, it was a perfectly smooth surface," but that "as time went on the depression began to take form"; that he did not know "how long it was until it had sunken a little or worn away, or whatever it was, but it was noticeable." The defendant Fishbough, who supervised the particular project and the sidewalk reconstruction for the municipality, also described the locus as "the busiest part of the city." He conceded that blacktop is "not as hard as concrete," and that, while it is used for patching
roads and also for sidewalks "in some places," the city "prefers concrete sidewalks, because most of them are concrete, and for the sake of uniformity; but it is permissible to make driveway aprons of it (blacktop), and places like that, which is the same thing." He said that at the time of the mishap here, the patched surface "was worn down possibly a quarter, or not over 3/8 of an inch"; and it was then decided that "to make a nice job, a good job of it, we would dig out the bituminous concrete and put concrete in and make the sidewalk uniform at that point," which he "accordingly had done." He described the condition of the patched area at the time as "slightly concave," due to "wear and tear" rather than ground subsidence. But he admitted the force of the photographic representation of the locus; he sought to minimize it as not a "true picture," but an exaggeration due to the "shadows" attending the taking of the picture on "a wet day."
Plaintiff adduced expert opinion evidence that the reconstruction of the sidewalk was structurally substandard, in that blacktop is much less resistant than concrete and it is impossible to guard against destructive water seepage.
Thus, there was evidence tending to show a subsidence and breaking of the sidewalk surface due to the use of unsuitable material and the mode and manner of construction, and therefore a misfeasance chargeable to the municipality. The disintegration of the patchwork was reasonably foreseeable as a consequence of the structural deficiency, and so there was an unreasonable risk of harm which rendered it a nuisance attributable to the municipality when the danger materialized, actionable as such at the suit of one who thereby sustained special and peculiar damage distinct from the general inconvenience suffered in common with the public at large. It does not matter that the faulty construction did not give rise to an immediate hazard. That would be an illusory distinction at variance with the principle. Where a nuisance as a consequence of the thing done is within the realm of reasonable foresight, the author is liable as the creator of the nuisance when the danger comes into being. It is elementary
that if because of defective construction the site of the patchwork would in all human likelihood become a place of danger, the resultant condition constitutes a common nuisance attributable to the original wrong. There was danger in unreasonable degree, not in keeping with the standard of care imposed by the law for the protection of travellers against unreasonable risk of harm. Restatement, Torts, § 282. The risk was reasonably perceptible at the time of the doing of the work, and so the act was wrongful and actionable when the foreseeable condition became a reality and resulted in special and particular damage.
The danger arose from nuisance, even though a nuisance growing out of negligence. While nuisance in its primary signification does not involve the element of negligence as one of its essential factors, a continuous threat to the public by an obstruction or dangerous condition in a highway constitutes a common nuisance, though dependent upon negligence. McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391 (1928).
A nuisance to a highway consists either in obstructing it or rendering it dangerous. Salmond on Torts (10 th ed.), §§ 53, 69. One of the most familiar instances of nuisance is a highway "out of repair." McFarlane v. City of Niagara Falls, supra. At common law, the duty of repairing highways rested upon the inhabitants of the parish, and was enforceable by indictment only, and not by way of action at the suit of an individual, even though he had suffered special damage; and the same rule of exemption applied when the care of highways was transferred by statute to corporate local authorities. A transfer of the duty of repair of roads from the inhabitants at large to a body corporate does not change its nature. After long controversy, the modern authorities in England hold that the transfer does not of itself render the corporation liable to an action for damages for nonfeasance as distinguished from misfeasance, unless so provided by statute. Guilfoyle v. Port of London Authority (1932), 1 K.B. 336. [6 NJ Page 407] The soundness of this immunity from liability under the common law for mere passive nonfeasance -- mere omission to repair -- has long been the subject of controversy among the English judges; and it was deemed "unsatisfactory" by Humphrey, J., in the Guilfoyle case, supra, decided in 1932. But the exemption does not extend to an active misfeasance -- a positive act by which a danger is wrongfully caused in the highway and by which the plaintiff has come to harm. Local authorities are saved from civil liability for merely failing to do what ought to have been done, but are liable at common law for doing that which ought not to have been done. Russell v. Men of Devon (1788), 2 Term. Rep. 667; Foreman v. Mayor of Canterbury (1871), L.R. 6 Q.B. 214; Shoreditch Corporation v. Bull (1904), 90 L.T. 210; Salmond on Torts, § 70. "Once establish that the local authority did something to the road, and the case is removed from the category of nonfeasance. If the work was imperfect and incomplete it becomes a case of misfeasance and not nonfeasance, although damage was caused by an omission to do something that ought to have been done. The omission to take precautions to do something that ought to have been done to finish the work is precisely the same thing in its legal consequence as the commission of something that ought not to have been done, and there is no similarity in point of law between such a case and a case where the local authority have chosen to do nothing at all." McClelland v. Manchester (1912), 1 K.B. 118. Lush, J., there held that when a local authority "undertakes and performs a duty, whether they are bound by statute to do so or whether they have an option to perform it or leave it unperformed, however it arises, they are bound to exercise proper and reasonable care in its performance, and that there is no difference in this respect between a public body and a private individual who does an act which if carelessly done may cause injury to others." One who undertakes to do a piece of work must do it with reasonable care; and he is liable for a breach of the duty in that respect. Thompson v. Bradford Corporation (1915), 3 K.B. 13. Active misfeasance is the test of liability in the case of a municipal corporation. Foreman
v. Mayor of Canterbury, supra. A "negligent act of commission" whereby a road becomes dangerous is a misfeasance. Attorney General v. Todmorden Borough Council (1937), 4 A.E.R. 588.
These common-law principles obtain in New Jersey. 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. Hart v. Freeholders of Union, 57 N.J.L. 90 (Sup. Ct. 1894); Allas v. Rumson, 115 N.J.L. 593 (E. & A. 1935). In Cockran v. Public Service Electric Co., 97 N.J.L. 480 (E. & A. 1922), the old Court of Errors and Appeals ruled that the failure of the municipality to light a safety isle at night rendered the structure a nuisance growing out of negligence and its own positive misfeasance. Compare Freeholders of Sussex v. Strader, 18 N.J.L. 108 (Sup. Ct. 1840); Olesiewicz v. Camden, 100 N.J.L. 336 (E. & A. 1924); Florio v. Jersey City, 101 N.J.L. 535 (E. & A. 1925). In the case last cited, where liability was alleged against the municipality for the negligent operation of its fire truck, Mr. Justice Kalisch for the Court of Errors and Appeals found the rule under our cases to be that a municipality is not liable for "negligence that is nothing more than nonfeasance," nor for "negligent acts of misfeasance" by its servants or agents or a public officer performing duties strictly public, unless the misfeasance is committed or directed by the municipality itself.
The common-law rule that a municipality is liable for the creation of a nuisance in a public way by its own positive misfeasance is embedded in our jurisprudence. Town of Union v. Durkes, 38 N.J.L. 21 (Sup. Ct. 1875); Hart v. Freeholders of Union, supra; Kehoe v. Rutherford, 74 N.J.L. 659 [6 NJ Page 409] (E. & A. 1907); Fisher v. Nutley, 120 N.J.L. 290 (E. & A. 1938); Jaixen v. Hargreaves, 127 N.J.L. 370 (Sup. Ct. 1941); Fredericks v. Dover, 125 N.J.L. 288 (E. & A. 1940); Lovett v. Keyport, 133 N.J.L. 122 (E. & A. 1945); Truhlar v. Borough of East Paterson, 4 N.J. 490 (1950). A municipal corporation is not answerable for damages "incident to the road falling out of repair." Buckalew v. Freeholders of Middlesex, 91 N.J.L. 517 (E. & A. 1918). But where, as here, the settlement and breaking of a patched pavement surface are due primarily to structural fault that could have been avoided by the exercise of reasonable care, and are not the normal incidents of wear and tear or public use, the resulting danger constitutes a nuisance in legal intendment, for it was the reasonably foreseeable consequence of the structural deficiency. Gainfort v. 229 Raritan Avenue Corporation, 127 N.J.L. 409 (Sup. Ct. 1941). There is in such circumstances the default which is the essence of negligence. The excavation here was made to serve a purpose other than the repair or maintenance of the road itself; and the mischief arose from want of due care in the restoration of the road. The case of Garvey v. Public Service Coordinated Transport, 115 N.J.L. 280 (E. & A. 1935), is analogous. There, the hazard consisted of a hole in the sidewalk resulting from the decay of the butt of a wooden pole severed at ground level, to avoid damage to and the need for the replacement of the surrounding pavement; and it was held that the deepening of the hole by the lessening of its bottom resistance through the operation of nature's process of decay was a circumstance reasonably to be apprehended, and the consequent risk to travellers constituted a nuisance. It was recognized by Chancellor Walker in Buckalew v. Freeholders of Middlesex, supra, that if the repairs to the road were made "with material which in and of itself would cause injury, a different question would doubtless be presented." It is fundamental in the common law that the author of a nuisance is liable for its injurious consequences until the danger is removed.
The English judges still find that the application of the common-law rule exempting the local highway authority from liability for mere nonfeasance, and the classification of acts of misfeasance as distinguished from nonfeasance, involve questions of very considerable difficulty. A local authority who is also a road authority may be liable when acting not as a road authority, but in some other capacity, for what may be regarded as nonfeasance. Shoreditch Corporation v. Bull, supra. There, a trench was dug in a highway by a sanitary authority who was also the highway authority; and argument was made that, since the jury found that the work was properly finished after the trench was completed, the later negligence was a mere nonfeasance by the highway authority for which it would not be responsible. Lord Chancellor Halsbury held that "if there was anything wrong * * * in the mode of carrying out the work * * * or if in any other way the thing that was being done was negligently done," it was an act of misfeasance "for which the local or road authority under whose authority the thing was done was responsible." He declared: "I deprecate very much the notion that you can begin an operation which interferes with the ordinary and normal condition of the roads and then by reason of having different duties cast upon you you can treat that as a separate operation, so that at one point of time you may be responsible in one capacity or not responsible in one capacity and at another point of time you are, and you may hand over the completion of the operation to an authority which is not responsible at all. That would be a sort of metaphysical inquiry into which I am loth to enter. * * * The moment the structure of the road is interfered with, and it comes within the ambit of the operation commenced by the person who is entitled to interfere with the structure of the road, then, until that road is restored into the condition in which it was before that alteration of its structure began, it seems to me the person who interfered with it is responsible for a misfeasance."
The principle was applied by the Court of Appeal in the recent case of Newsome v. Darton Urban District Council [6 NJ Page 411] (1938), 3 A.E.R. 93. There, the local sanitary authority and the local highway authority were one. In July, 1933, they dug a trench in a highway for the purpose of executing certain drainage work. The excavation was filled in, and in 1935, when the surface was tar-sprayed and chippings were rolled in with a steam-roller, the surface was said to be level. In 1936, a depression had formed at the place where the work had been done; and the jury found that the highway at this place was dangerous to those using it with due care; that, although the original work was executed without negligence, the dangerous condition was due to interference with the structure of the road by the defendants, whose duty it was, by reason of that act, to restore the road to the condition in which it was before such interference, including the remedying of a subsequent subsidence; and that the defendants were negligent in not discovering and taking steps to remedy the danger, and this negligence amounted to misfeasance. This although it was not established that there was any settlement until after the expiration of two years from the date of the excavation, and the mishap complained of occurred as long as three years after the excavation. The principle apposite to the case in hand was thus stated by MacKinnon, L.J.: "The primary rule is that the highway authority is liable for acts of misfeasance, and not for the results of nonfeasance. If a defect arises in a highway only as the result of the friction of traffic and the operation of natural causes, and that is not remedied by the authority, that is a defect arising only from nonfeasance. Where, however, the authority, either in its capacity as highway authority or otherwise, does something to the surface of the highway, and that which it does is, in addition to the friction of traffic and the operation of natural causes, the origin of the defect which they do not remedy, then the defect may be regarded as the result of misfeasance, and not merely nonfeasance." The judge found that this was the result of the principle laid down in the Shoreditch case, and that the difference in time between the doing of the act and the disaster arising from the defect was simply one of degree and of fact that did not affect the operation of the principle.
This is the principle that charges the municipality here with the injurious consequences of the nuisance that eventuated from the original negligence. It is a rule of causation grounded in reason and inexorable logic which is of the essence of the common-law doctrine of liability for fault.
The misfeasance established by the verdict and judgment here is imputable to the municipality, or so the jury might well find. The material was supplied by the local governing body; and its use for such patchwork was in keeping with long-standing practice where the surface replacement was "a small job." The work was performed under the supervision of the city's engineer in accordance with the accepted practice. The municipality was responsible for the policy which made for structural insecurity; the ...