For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Hall, J.
The pivotal question in this case is whether defendant is immune from liability for plaintiffs' claim for personal injuries and derivative damages, arising from a fall by Mrs. Schwartz in a particular part of the borough hall, by reason of R.S. 40:9-2:
"No municipality or county shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding."
The Law Division held that it is, granting defendant's motion for involuntary dismissal at the end of plaintiffs' case. Their appeal to the Appellate Division from the consequent judgment was certified on our own motion. R.R. 1:10-1(a).
The issue posed, and here it is strictly a legal one for court and not jury determination, is the applicability of the statute. This must be considered in the light of the factual setting and that setting is to be determined from the evidence viewed most favorably to plaintiffs. So viewed, we find this state of fact.
In August 1955 Stockton, a very small town situated on the bank of the Delaware River in Hunterdon County, had
a borough hall which had been erected by the municipality many years before. It was a two-story building with basement. The first floor was divided into two parts. One served as the meeting room of the Mayor and Council, the office of the Tax Collector and related governmental purposes. The other, with which we are concerned, was occupied by the local volunteer fire company as a fire house to garage its apparatus and perhaps occasionally for other activities of the organization. The second floor consisted of one large room used by various local groups and societies, including the fire company, for meetings, entertainments, card parties and the like. The testimony was that the building had been erected to serve these various uses.
The arrangement between the borough and the fire company, in existence over a considerable period of time, called, on the one hand, for the latter to pay the municipality $200 per year for the use of the garage to house the fire engine and the upstairs room for company meetings and functions, with the borough being obligated to provide heat, light, janitorial service and building repairs. This sum was paid by company check bearing the designation "rent". It was not clear whether this arrangement was represented by a written lease, but that is immaterial. On the other hand, the borough appropriated annually in its budget $200 as "contractual aid," paid to the fire company in return for the agreement to keep its apparatus in first-class condition at all times and to answer all fire calls. This understanding was reduced to writing, but again we believe that fact to be of no special significance.
About August 18, 1955 the area was visited by a severe hurricane which resulted a few days later in serious flood conditions. The Delaware overflowed its banks and the little community of Stockton, along with other towns in the valley, was almost inundated. Homes and other buildings were flooded to a considerable height and made uninhabitable. Household goods and clothing were lost or rendered unusable. The water was two feet deep in the
first floor of the borough hall and the cellar was completely full. The fire engine was moved from the building and after the flood subsided several days later the mud and slime on the garage floor were cleaned off (whether by municipal employees or fire company members does not appear). The flooding had caused the floor to "heave" in places, but everyone was too busy taking care of the emergency needs of the population to even think about repairing it.
Mrs. Schwartz, who lived in Flemington, the county seat, had been working in Stockton with relief and welfare organizations providing food and meals for the stricken residents. She observed that many people were in need of clothing. As the president of the women's auxiliary of a veterans' organization in Flemington, she brought about through it the collection of new and used clothing for distribution in Stockton. She communicated with the Mayor, who quickly accepted her offer of the clothing and told her to bring it to the then vacant fire house portion of the borough hall which he would make available for a distribution center. This was done and on August 29th while she was engaged in this worthy endeavor there, she stubbed her toe ...