Clapp, Jayne and Francis. Clapp, S.j.a.d. Jayne, J.A.D. (concurring in affirmance). Francis, J.A.D. (dissenting).
This is an action brought to recover damages for negligence. The defendant moved to dismiss it at the close of plaintiffs' case, and the trial court granted the motion, holding there was no proof of active wrongdoing on defendant's part. Plaintiffs appeal.
Mrs. Rita Casale and her husband, the plaintiffs herein, were tenants of the defendant, residing in an apartment house operated by it. They assume, and hence I shall also, that the operation of this building is to be classified as an activity governmental, and not proprietary, in nature and hence that defendant is to be accorded the immunity given a municipality in connection with such an activity. Cf. Stephens v. Comm'rs of Palisades Inter. Park , 93 N.J.L. 500 (E. & A. 1919); see N.J.S.A. 55:14 A -7, 55:14 A -8.
Mrs. Casale was injured at 9:30 P.M., January 12, 1954, as a result of slipping, allegedly on ice that lay on a stairway leading from the street level down to the entrance to the above-mentioned apartment house. It was admitted on the argument before us that the stairway was used in common by various tenants of the apartment house. According to an official Weather Bureau report put into evidence, snow fell on the following days: on January 10, 2.9 inches; on January 11, 4.5 inches, total 7.4 inches; and on January
12 very small amounts from time to time during the day, with only .02 of an inch falling after 3 P.M., that is, between 5 and 6 P.M.
There was evidence that a maintenance man, "one of the handymen there," doubtless (the point is assumed) an employee of the defendant, shoveled the snow from the stairway on January 12 at 11 A.M. and again at 3 P.M.; and since the condition of the snow on the evening of the 11th appeared at a glance to be the same then as on the evening of the 12th, he apparently, pursuant to standing instructions, shoveled the snow on the 11th as well as the 12th. It is inferable that he cleared away most of the snow, but left some of it together with a layer of hard ice underneath. For there is evidence of ice under the snow on January 11 which could be felt with the foot and which (it may be inferred) was sufficiently treacherous, at least at one spot, as to cause one to slip if one did not have a "pretty strong" grip on the handrail. And there is also evidence of ice under the snow on the 12th after the accident, which, it may be deduced, had been there from the 11th; for the maximum temperature on the 11th and 12th never rose above 29 degrees. Note should also be made of the testimony indicating that the snow covering the ice on the stairway on the evening of the 12th -- "it could have been an inch" thick -- was loose enough so that it could be "brushed" or "pushed" away. This indication is fortified by the testimony that the ice under the snow on the 11th could be felt with the foot.
These inferences are by no means strong. Nevertheless, drawing them together, I think enough was adduced at the trial to present a jury question, namely, whether the act of shoveling by defendant's employee brought hard ice near to the surface, and at the same time left that ice covered merely with a layer of snow which was not very thick and which was sufficiently loose that it could be brushed or pushed away. In this view of the matter, it may, within reason, be said that the shoveling introduced a new element of danger which would not have been present if there had been no attempt to shovel any of the 7.4 inches of snow from the
The rule, as stated in the cases herein cited, is that a municipal corporation (and hence the defendant), though it is not liable for a nonfeasance in connection with a governmental activity, is nevertheless liable for the active wrongdoing or misfeasance of an employee assisting in such an activity, where the corporation directs or participates in the wrongdoing. Was there active wrongdoing here within this rule?
In the leading and very clarifying decision of Milstrey v. City of Hackensack , 6 N.J. 400, 407 (1951), the following passage from McClelland v. Manchester (1912) 1 K.B. 118, 127 was cited with approval (it was said: "These common law principles obtain in New Jersey," 6 N.J. , at page 408):
"'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.'"
To like effect, see Shoreditch Corporation v. Bull (1904), 90 L.T. 210, quoted with approval in Milstrey , 6 N.J. , at page 410. As stated in Kelley v. Curtiss , 29 N.J. Super. 291, 297 (App. Div. 1954), reversed on other grounds 16 N.J. 265 (1955),
"To be active, there must be a 'positive affirmative act.' Allas v. [Borough of] Rumson , 115 N.J.L. 593, 595 (E. & A. 1935), supra. In other words, in the sequence of events each of which becomes a proximate cause of the injury, there must be a wrongful act (as distinguished from a mere failure to act) on the part of some municipal officer, agent or servant. The last event in that sequence may be non-action; but that does not render the prior act immune. See the cases where there is a failure to put up lights or barriers, after the making of an obstruction, excavation or other nuisance in a road." (Citing cases)
The doctrine of active wrongdoing is not to be limited to a case where there is continuing wrongdoing, as "distinguished from an isolated act or omission or neglect" (Kress v. City of Newark , 8 N.J. 562, 574 (1952)); nor is it to be confined to "wanton" activity. (Repko, "American Legal Commentary on the Doctrine of Municipal Tort Liability ," 9 L. & Contemp. 214, 224 (1942), stating the New Jersey law.) The very careful definition of the term, active wrongdoing, given by the court in Milstrey seems to equate it to a single act of simple misfeasance, "the doing of a lawful act in an unlawful manner." (6 N.J. , at page 408)
I conclude, then, that there was some proof of active wrongdoing in this case within the rule. However, judgments of dismissal will be affirmed if the appellate court can support the result reached, even though it cannot accept the reason advanced below.
As above stated, a corporation does not become liable for the conduct of its employee, merely because of active wrongdoing on his part while performing duties of a governmental nature; there must also be proof of direction or participation by the municipality itself. In such a case, as has been repeatedly said, the doctrine of respondeat superior does not apply. Florio v. Jersey City , 101 N.J.L. 535 (E. & A. 1925) (an employee driving a fire truck to the fire negligently ran it against plaintiff's horse and wagon); Reilly v. City of New Brunswick , 92 N.J.L. 547 (E. & A. 1918) (city employee lit a fire, which was reasonably necessary in the performance of his duties at the city dump, and sparks from it set fire to plaintiff's home); Paterson v. Erie R. Co. , 78 N.J.L. 592 (E. & A. 1910) (driver of a fire engine collided with train); Allas v. Borough of Rumson , 115 N.J.L. 593, 596 (E. & A. 1935); Condict v. Mayor, etc., Jersey City , 46 N.J.L. 157, 159 (E. & A. 1884); Johnson v. Board of Chosen Freeholders of ...