Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D. Conford, J.A.D. (concurring).
[41 NJSuper Page 30] The plaintiff, Philip W. Cloyes, is the father of the decedent, Philip Colin Cloyes, and sues under
the Death Act, N.J.S. 2 A:31-1 et seq. , as administrator ad prosequendum of his estate. The Cloyes family moved to the defendant Township of Delaware in 1953. Their home abutted the land where the township had constructed and maintained its Colwick sewage disposal plant, which included an open sedimentation tank. A small ravine and creek separated the rear of the Cloyes' plot from the plant area.
On June 23, 1954 at about 6 P.M the decedent, a boy about three years of age, was observed by his mother playing with two other children in the back yard of the adjoining house. Within eight minutes of the last time she observed him the boy had disappeared. Apparently he crossed over onto the township land, entered the immediate area of the sewage plant and fell into the open sedimentation tank. When found in the tank a short time after his absence was discovered, he was dead from drowning. There was no eye witness of how the boy gained access to the plant grounds which admittedly were enclosed by a fence erected in 1952 in accordance with accepted standards. However, there was an opening of between 16 and 18 inches under a gate in the fence, and it is reasonably inferable that the boy crawled through the opening under the gate.
There is testimony by the decedent's father, supported by that of neighbors, that the children of the area frequently played in and around the plant grounds. The father testified that about a month before his son's death he had complained to the defendant Thomas Walton, the Township Director of Public Affairs, that the odors emanating from the sewage plant were obnoxious, and that for children to play in such close proximity to the open sedimentation tank was dangerous, particularly since small children could crawl through the opening under the fence. He also testified that to safeguard his son he had constructed a fence around his own property, which fence was about 150 feet distant from the plant fence. However, he admitted that the gate was not kept locked.
Since 1949 the disposal plant in question had not been supported by general taxation of all the members of the community, but had been operated as a self-liquidating
utility, financially supported by rental fees paid solely by homeowners who received sewerage disposal service. The plant in question was operated in conjunction with two others, and over the years had shown both profit and loss. Its income was used to pay operating expenses, as well as principal and interest charges on its outstanding indebtedness. Excess revenues, if any, were kept in a separate utility account and not commingled with general municipal funds.
At the conclusion of the evidence the trial court charged the jury that, as a matter of law, the defendants' operation of the sewage disposal plant was a governmental function and, hence, to be held accountable for the death of the plaintiff's decedent it must have been guilty of "active wrongdoing" which proximately caused the infant's death. It also charged in effect that the jury might properly take into consideration the failure of the decedent's father to take adequate precautions to protect the decedent from harm as an intervening responsible cause which would absolve the defendant from liability on the theory that there was no proximate causal connection between the defendant's negligent act and the death of the child.
The jury returned a verdict of no cause of action. The plaintiff appeals, alleging as error the above-stated portions of the trial court's charge.
It is now unquestioned that a municipal corporation in the performance of a governmental function carries out a public duty and, in the absence of statutory authority directing otherwise, is immune from responsibility for negligence in the performance of such public duty except upon proof of active wrongdoing or positive misfeasance chargeable to it. Kress v. City of Newark , 8 N.J. 562, 573 (1952). See Board of Chosen Freeholders of Sussex County v. Strader , 18 N.J.L. 108 (Sup. Ct. 1840) and Hart v. Board of Chosen Freeholders of Union County , 57 N.J.L. 90 (Sup. Ct. 1894). As to what constitutes active wrongdoing, see Allas v. Borough of Rumson , 115 N.J.L. 593 (E. & A. 1935) or positive misfeasance, see Milstrey v. Hackensack , 6 N.J. 400, 408 (1951).
It is also firmly settled that where a municipality is engaged in a proprietary function, as distinguished from a governmental one, it is answerable for its negligent acts or those of its agents, as would an individual or a private corporation. Tomlin v. Hildreth , 65 N.J.L. 438 (Sup. Ct. 1900); Valentine v. Englewood , 76 N.J.L. 509, 512 (E. & A. 1908); Olesiewicz v. City of Camden , 100 N.J.L. 336, 340 (E. & A. 1924); Martin v. City of Asbury Park , 111 N.J.L. 364 (E. & A. 1933). See generally Kelley v. Curtiss , 29 N.J. Super. 291 (App. Div. 1954), reversed on other grounds, 16 N.J. 265 (1954). For a collection of similar cases in other jurisdictions see 18 McQuillin, Municipal Corporations (3 d ed.), § 53.01, p. 132 et seq.; Borchard, "Government Liability in Tort, Municipal Corporations," 34 Yale L.J. 129.
The factors which have been considered in determining whether a particular function is proprietary have been: whether the function could be performed as well by a private corporation, Karpenski v. Incorporated Borough of South River , 83 N.J.L. 149 (Sup. Ct. 1912), reversed on other grounds 85 N.J.L. 208 (E. & A. 1913); whether the municipality derives a profit or merely some benefit or advantage from operation of the enterprise, Olesiewicz v. City of Camden, supra; whether the function concerns the sale of a commodity or service, establishing the relationship of seller and purchaser as between the municipality and the consumer, Lehigh Valley R. Co. v. Jersey City , 103 N.J.L. 574 (Sup. Ct. 1927), affirmed 104 N.J.L. 437 (E. & A. 1928); Martin v. City of Asbury Park, supra. In the absence of these factors, the function is considered governmental, Callan v. City of Passaic , 104 N.J.L. 643 (E. & A. 1928); Vickers v. City of Camden , 122 N.J.L. 14 (E. & A. 1938); Bengivenga v. City of Plainfield , 128 N.J.L. 418 (E. & A. 1942); Kress v. City of Newark, supra.
Thus, it has been held to be a proprietary function where the municipality operated a bathing pavilion, Martin v. City of Asbury Park, supra; supplied water to its inhabitants, Lehigh Valley R. Co. v. Jersey City, supra; Harper v. City
of East Orange , 105 N.J.L. 193 (E. & A. 1928); Fay v. City of Trenton , 126 N.J.L. 52 (E. & A. 1940); where it operated an asphalt plant and performed asphalt work for private persons and corporations, Olesiewicz v. City of Camden, supra; where it engaged in the furnishing of electricity to its inhabitants, Karpenski v. Incorporated Borough of South River, supra.
Ordinarily, governmental functions of a municipality are available to all taxpayers, and whether or not the specific function is utilized is not a determinant. Schools are conceded to be a municipal function devolving from a public duty, supported by all taxpayers of the municipality, whether or not they have children to avail themselves of the educational facilities provided. That is the idea of public duty, duty to all, whether or not utilized, and the situation is similar as to police and fire protection, whether or not an individual property owner ever calls the police or the fire department. However, here only those who actually use the service pay for it; it is not general and available to the municipal public at large -- a consideration to be weighed in determining whether the function is proprietary rather than governmental, particularly when coupled with the fact that a service of this nature could just as well be performed by a private corporation and that it results in a seller-consumer relationship between the municipality and those using the service.
McQuillin indicates that other jurisdictions are in conflict as to whether the operation of a sewage disposal plant is a governmental or proprietary function. He states that "the prevailing view seems to be that a municipality may be held liable for death or injury resulting from neglect or other tort in the operation of such a plant." 18 McQuillin, Municipal Corporations (3 d ed.), § 53.131, p. 512. This precise question has been adjudicated in New Jersey in Morgenweck v. Egg Harbor City , 106 N.J.L. 141 (E. & A. 1929). There, the defendant municipality ...