McGeehan, Bigelow and Smalley. The opinion of the court was delivered by Smalley, J.s.c. Bigelow, J.A.D. (concurring).
[21 NJSuper Page 570] This is an appeal from the granting of a motion to dismiss made by the defendant-respondent at
the close of plaintiffs-appellants' case wherein the defendant moved to dismiss on the grounds that they had failed to prove a cause of action against the defendant. The motion was granted by the trial judge and the plaintiff appeals.
Grace Johnson seeks damages for personal injuries resulting from a fall on a sidewalk located on the southeast corner of Broad and Wallace Streets in the Borough of Red Bank. Her husband sues per quod.
Suit was filed against the Borough of Red Bank, a municipal corporation, and the Board of Chosen Freeholders of the County of Monmouth claiming improper repairs to a defective sidewalk and the resulting creation of a nuisance. The plaintiff testified that on June 17, 1950, she crossed Wallace Street and stepped up on the curb of the southeast corner of Broad Street, that she took two steps when her left heel caught in the sidewalk causing her to fall. She further testified that after she fell she then found that her foot caught in a defectively patched portion of the sidewalk. The action against the Borough of Red Bank was voluntarily dismissed prior to the actual trial of the cause.
At the trial, plaintiffs produced an expert witness, a general contractor, who testified that the repairs in question were not in accordance to accepted standard practice in that the damaged portion was filled with tarvia instead of concrete. He further testified that the patch work was not made flush with the sidewalk and resulted in a hazard.
The plaintiffs produced a member of the police force of the Borough of Red Bank who testified that about two years prior to trial he observed a county truck in the vicinity of the sidewalk in question. The county employees were then patching the street or road adjacent to the sidewalk. He testified that he saw a county employee on the sidewalk patting with a shovel the same sort of material that was being used to repair the road. On cross examination he admitted that he did not actually see the county employee take any material from the truck and place it on the sidewalk; he merely saw the county employee "patting down with a shovel."
There was admitted into evidence certain pages of the minutes of the Board of Chosen Freeholders of the County of Monmouth which contained a resolution, providing, in effect, for the acquisition and maintenance of Broad Street as a county road, pursuant to a certain map which was supposed to be attached thereto but was inexplicably missing. It is to be noted that the minutes, numbered pages 91 to 94 inclusive, record the proceedings of the board of freeholders from January 1, 1912 to April 24, 1912. All that we have before us is a reference to page 93 of the minutes wherein it refers "That Broad Street in the Borough of Red Bank is to be taken over pursuant to a certain map hereby annexed or on hereto annexed to this resolution." The clerk of the defendant board of chosen freeholders testified that there was no record of this map and that a search had failed to produce it. Such other testimony as adduced is not essential to the disposition of this appeal. Plaintiffs rested and the defendant moved for a judgment of dismissal which the trial judge then granted.
It is fundamental that in a motion to dismiss at the close of plaintiff's case, the plaintiff is to have the benefit of all facts proven, together with all direct or indirect inferences which may be reasonably or logically drawn from such facts. Giuliana v. Ginnelly , 6 N.J. Super. 76 (App. Div. 1949); Pirozzi v. Acme Holding Company of Paterson , 5 N.J. 178 (1950).
The law is well settled in New Jersey that a municipality, while in the execution of a governmental function, is accountable in tort only for its own positive acts of misfeasance, and not for mere acts of nonfeasance. Allas v. Rumson , 115 N.J.L. 593 (E. & A. 1935); Milstrey v. Hackensack , 6 N.J. 400 (1951). The doctrine of respondeat superior is also limited in such cases, and the municipality will only be liable for the acts of its officers and employees when such act is performed by the direction or with the participation of the municipality. Allas v. Rumson, supra; Florio
v. Jersey City , 101 N.J.L. 535 (E. & A. 1925); Olesiewicz v. Camden , 100 N.J.L. 336 (E. & A. 1924).
Consequently, in order for the plaintiff in the case sub judice to hurdle the obstacle of establishing a prima facie case, she must carry the burden of establishing that it was an employee of the defendant county who placed the tarvia in the depression in the sidewalk, and that such act ...