On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- Justice Oliphant. The opinion of the court was delivered by Weintraub, J. Wachenfeld, J., concurring in result.
This is a death action (N.J.S. 2 A:31-1 et seq.) arising out of the drowning of a three year old boy in an open sedimentation tank of the sewage disposal plant of the defendant municipality. The individual defendants are officials of the township who were charged with negligence, apparently in failing to act despite knowledge of the claimed danger.
The jury found for defendants. Upon plaintiff's appeal, the Appellate Division reversed and directed a new trial. The judges of the Appellate Division agreed there was error in the charge to the jury that it could consider the failure of the father to confine the child to his property in dealing with the issue of proximate causation, but divided upon the question whether the trial court properly treated the municipal activity as governmental rather than proprietary. In opinions which ably reflected the divergent points of view, the majority held the activity was proprietary while the concurring judge concluded it was governmental. 41 N.J. Super. 27 (1956).
Upon defendants' petition, we granted certification. 22 N.J. 226 (1956). Defendants seek not only a determination
that the function is governmental but as well an affirmance of the judgment in the trial court upon the premise that the evidence did not disclose active wrongdoing within the concept controlling liability of a municipality in its governmental role.
The doctrine of municipal immunity originated in judicial decisions since the separation of the Colonies from England. Davis, "Tort Liability of Governmental Units," 40 Minn. L. Rev. 751, 773 (1956); Prosser, Law of Torts (2 d ed. 1955), § 109, p. 774. The immunity is confined to those activities which the municipality undertakes as the agent of the State as distinguished from those which it pursues in its corporate or proprietary capacity. Prosser, op. cit. supra, § 109, p. 774; 18 McQuillin, Municipal Corporations (3 d ed. 1950), § 53.01, p. 132 et seq. This test, so simply stated, has proved of little help in the solution of litigation.
This field has been traversed time and again. Discussions in our State begin with Board of Chosen Freeholders of Sussex County v. Strader, 18 N.J.L. 108 (Sup. Ct. 1840), wherein plaintiff sustained damage when his horses turned off a county bridge which was imperfectly constructed, being without railings or parapets. It was held that plaintiff could not recover. The court feared a different result "would open a new field for litigation and I think it would produce an abundant crop." (at page 121). The principle was laid down that if the corporation neglects to perform a duty owed to the public and members of the public are injured "some more, and some less," there is no private remedy, but rather the remedy is by indictment. (at page 121). The "abundant crop" nonetheless ensued. The variety of results reached as of 1934 are revealed in " Tort Liability of Municipalities in New Jersey," 3 Mercer Beasley L. Rev. 142 (1934). Decisions since then have not met the persistent demand for some definitive statement settling principles which will uniformly control in this area.
It would be idle to pretend that any thread of reason conjoins all the results heretofore reached, either here or elsewhere. An explanation, however, can be found in the history of the subject and the inevitable evolutionary development of judge-made law.
At a time when municipal activities were few and the capacity of municipalities to respond in damages was uncertain, the doctrine of the Strader case undoubtedly seemed to be the common sense answer to the problem. But when municipalities and other governmental agencies expanded into new areas, either replacing private entrepreneurs or meeting new needs which theretofore had not required public activity, additional factors had to be weighed. The expansion of the area of operations enlarged the area of hurt. The number of private injuries which would go without remedy necessarily increased. The experience of private operators who performed subject to the ordinary principles of tort liability had demonstrated that such operations could absorb the impact of liability for negligence without curtailing or imperiling the service, and hence the fear of a crushing impact upon public funds which played a role in Strader was allayed. Indeed, it has been argued that a municipality can more readily absorb the loss than can private industry. Davis, op. cit. supra (40 Minn. L. Rev., at p. 811). The advent of liability insurance increased confidence in the ability of local government to carry on without special immunity. And, lastly, concepts of fair play and justice changed. The notion that a remedy by indictment could satisfy the public interest became archaic. It could not be adjusted to new thinking, the view that society is better served by absorbing the misfortunes negligently inflicted upon individuals rather than by leaving them to their own inadequate devices for the supposed benefit of the entire community.
It is thus understandable that new evaluations were made as the courts were periodically faced with the question whether the approach of another time should be followed with respect to new municipal activities. The common sense of the ...