Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant appeals from a district court judgment in plaintiff's favor awarding him $750 in his action to recover damages for injuries suffered when he slipped and fell on the toilet room floor of a municipal swimming pool.
Newark owns and operates two indoor and four outdoor swimming pools, among the latter the one known as the Hayes Park West Pool. Plaintiff went there on July 26, 1958 at 4 P.M. and paid 10 cents admission, removed his clothes in the locker room and gave them to an attendant, and then proceeded to use the toilet facilities. As he was leaving he slipped on the floor, described as "wet, filmy and slippery," and fell to the ground, striking his head on the floor. He suffered a brain concussion which caused some disability for a period of time, as well as headaches and the usual post-concussion syndrome. There was no permanent injury. The trial judge found that the toilet floor condition had existed for some time, with film and scum on the floor which had not been removed by the attendants charged with checking conditions at the pool.
Admission to the pool was free between 10 A.M. and 3 P.M.; after that a charge of 10 cents a person was made. From 500 to 900 persons use the pool daily. At our request the city submitted figures for the pool in question, showing that during 1958 39,480 persons gained free admission, 14,733 paid, and total receipts were $1,473.30. The cost of operating the pool for the summer season was $18,867.84. Taking into consideration all four outdoor pools operated by the city, total receipts were $7,364.90 as against operational costs of $76,149.45. Free admissions to these pools totaled 226,537.
The core question to be decided here is whether the City of Newark is immune from liability for plaintiff's injuries by reason of R.S. 40:9-2, which provides:
"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 trial judge concluded that defendant was not immune because it operated the pool as a proprietary function, and that in such a case the statute is inapplicable.
Our study of the reach of the statute must start with the state of the law at the time of its enactment as L. 1933, c. 460, approved January 10, 1934. The matter was recently considered by Justice Hall, writing for the Supreme Court in Schwartz v. Stockton , 32 N.J. 141, 147-8 (1960):
"By 1934, the original broad concept of common-law governmental tort immunity in this State, enunciated by Board of Chosen Freeholders of Sussex County v. Strader , 18 N.J.L. 108 (Sup. Ct. 1840), had been judicially whittled down to this point: municipal activities were divided, very precisely and controversially, into two classes, governmental and proprietary. Where the tort occurred in connection with a proprietary function, liability was determined on ordinary principles of negligence without regard to the municipal character of the tortfeasor. Martin v. Asbury Park , 111 N.J.L. 364 (E. & A. 1933); Olesiewicz v. Camden , 100 N.J.L. 336 (E. & A. 1924). If the function was determined to be governmental, active wrongdoing had to be found, else there was no cause of action. Casey v. Township of Bridgewater , 107 N.J.L. 163 (E. & A. 1930). The rub had come in deciding what was governmental and what proprietary and what amounted to active wrongdoing. See Weintraub and Conford, 'Tort Liability of Municipalities in New Jersey ,' 3 Mercer Beasley L. Rev. 142 (1934).
Of course, the whittling process has progressed further since, by finding active wrongdoing in the governmental field from a negligent act of commission, by what might be said to be a more lenient attitude toward the proprietary classification, by assessing binding governmental action or inaction from the affirmative or negative conduct of officials and employees less high on the municipal ladder, and by refusing to extend the doctrine to new situations. Allas v. Borough of Rumson , 115 N.J.L. 593 (E. & A. 1935); Milstrey
v. Hackensack , 6 N.J. 400 (1951); Kress v. City of Newark , 8 N.J. 562 (1952); Kelley v. Curtiss , 29 N.J. Super. 291 (App. Div. 1954), reversed on other grounds 16 N.J. 265 (1954); Taylor v. New Jersey Highway Authority , 22 N.J. 454 (1956); Cloyes v. Delaware Township , 23 N.J. 324 (1957); Hartman v. City of Brigantine , 23 N.J. 530 (1957); Farkas v. Middlesex Board of Freeholders , 49 N.J. Super. 363 (App. Div. 1958); 12 Rutgers L. Rev. 179-191 (1957). 13 ibid. 53-57, 103-104 (1958). This New Jersey trend is in line with that being followed elsewhere. Cloyes v. Delaware Township, supra; Prosser, Law of Torts (2 d ed. 1955) § 109, pp. 774-775; 2 Harper and James, The Law of Torts (1956) § 29.1, 29.2, 29.3, 29.5, 29.6."
The 1933 act was adopted shortly following the decision in Martin v. Asbury Park , 111 N.J.L. 364 (E. & A. 1933), and applied to school districts as well as municipalities and counties. By the Revision of 1937 the statute was separated into two parts, the provision regarding school districts being placed in the "Education" title (R.S. 18:5-30), and the remainder under "Municipalities and Counties" (R.S. 40:9-2).
The precise effect of the statute upon existing decisional law was considered by some of our lower courts soon after its passage. In Leeds v. Atlantic City , 13 N.J. Misc. 868, 181 A. 892 (Cir. Ct. 1935), plaintiff was injured while watching a football game in the municipally-owned Convention Hall. Judge Jayne held that it was to be presumed that the Legislature, in enacting the statute in question, was aware of the preexisting state law and its classification of governmental and proprietary functions, and remarked that "it is not to be inferred that the Legislature intended to make an exceedingly drastic alteration in the established law unless such an intention is clearly expressed or plainly exhibited by the words of the statute." Finding no such intention apparent on the face of the statute, he concluded that the Convention Hall operation, being similar in nature to a private enterprise and hence proprietary rather than governmental, defendant was not absolved from liability under the statute.
And in Falcone v. Newark Board of Education , 17 N.J. Misc. 75, 4 A. 2 d 687 (C.P. 1939), a child was fatally injured by a slate slab which fell upon her in school. In assessing the statute's effect on the common law, Judge Hartshorne first noted the two exceptions to the general common law rule of nonliability of governmental bodies for negligence -- active wrongdoing and proprietary activities. He remarked that "it is evident that the legislature, in enacting the above statute, intended to clarify and simplify this complicated legal situation, at least as far as injuries to the person were concerned * * *," and "That such act was intended to modify the common law, is further clear, not only from the generality of its language, but from the fact that such law is to apply, 'any law to the contrary notwithstanding.'" The court then went on to say:
"Nevertheless, in their endeavor not to overrule the common law principles unnecessarily, the courts have found two exceptions to the statute. It has been held that personal injuries, arising from the use of streets and public ways, are not covered by the statute, since such streets or ways are not 'public grounds, buildings or structures.' Hammond v. County of Monmouth, supra [117 N.J.L. 11 (Sup. Ct. 1936)]; Cohen v. Morristown , 15 N.J. Mis. R. 288; 190 A. 851; Selph v. Morristown , 16 N.J. Mis. R. 19; 195 A. 862. It has been further held that the act does not apply when the injury arises from the performance by the municipality of a proprietary, as distinguished from a governmental, function. This result is spelled out of the fact that it is 'public grounds, buildings, or structures,' and not those of a private nature, to which the statute applies. Accordingly, a municipality remains liable for injuries arising in the conduct of a football game, to which an admission fee is charged. Leeds v. Atlantic City , 13 N.J. Mis. R. 868, 181 A. 892."
Falcone held that the maintenance of schools was a governmental function, and the statute barred liability. We note that although the court concluded that the statute was intended to change the common law, it did not indicate just what it considered that change to be.
Various courts have considered the statute subsequent to the Leeds and Falcone decisions. However, the precise effect
of the statute upon the common law classification of municipal and county activities as governmental or proprietary has never been expressly declared by our court of last resort. Note, however, the Supreme Court decision in Thompson v. Millville Board of Education , 11 N.J. 207 (1953), where plaintiff was injured when she fell upon a highly polished school floor. She claimed that the statute did not bar liability where, as was there asserted, defendant's agents had been actively negligent. The Supreme Court disagreed, and in affirming dismissal of the complaint said:
"The argument that the statute has reference to mere negligence and not active wrongdoing is untenable. It is not so phrased and such an intention cannot be spelled out by implication. The language is broad and all inclusive and nothing is left to implication. The wisdom of the statute is for the decision of the Legislature and this court may ...