For reversal in part and affirmance in part -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Proctor, J.
This is a sidewalk accident case. Plaintiff sought damages for injuries sustained when he tripped and fell over a portion of a public sidewalk, allegedly broken and raised by the roots of a tree which was planted in the sidewalk by the City of Jersey City at the abutting property-owner's request. Joined as defendants were the property owner, Joseph Curley, the City of Jersey City, and the City Forester, David Post. The trial court granted a dismissal as to Curley and Post at the conclusion of all the evidence, and as to the city on a reserved motion after the jury returned a verdict in favor of the plaintiff. The plaintiff appealed only from the judgments of dismissal in favor of the defendants Curley and Jersey City. The Appellate Division affirmed and we granted plaintiff's petition for certification. 33 N.J. 332 (1960).
When considering the propriety of granting a motion for dismissal, the court must regard the evidence and inferences arising therefrom in the light most favorable to the plaintiff. Applying that standard to the present case, we find that the evidence discloses the following:
Since 1893, this State has had an enabling act which permits municipalities to create commissions with the power to exercise exclusive control over the regulation, planting and care of shade trees in and along their highways. P.L. 1893, c. 285 (now N.J.S.A. 40:64-1 to 14). Pursuant to that statute, Jersey City, in 1912, adopted an ordinance concerning the planting, care and control of shade trees along its streets. Under the provisions of that ordinance, in force today, no one without the written permission of the city may "cut, remove, break, climb, or in any manner injure, or cause, authorize or procure the removal, cutting, breaking, climbing or injuring" of any shade tree on any
municipal public highway, or obstruct the "free access of air and water to the roots" or "plant or set out or cause, authorize or procure the planting or setting out of any [such] * * * tree." Violators of the ordinance are subject to fine. The city Shade Tree Bureau exercises the shade tree control provided for by the ordinance. If a property owner requests the planting of a tree in the sidewalk adjacent to his premises, the Bureau provides the tree, and is in sole control of its planting and subsequent care. It has, however, no regular or systematic program of inspection and maintenance. Employees of the Bureau do not make inspection tours; and they are not instructed to look for or report observable dangerous conditions relating to municipally-controlled trees. Instead, the Bureau relies upon complaints from interested citizens for information about conditions which require its attention.
In May 1939, the Bureau, pursuant to defendant Curley's request and for a charge of $3, planted a shade tree in the sidewalk in front of his house. Over the years the tree grew, so that at the time of plaintiff's mishap it was sixteen inches in diameter at the base of the trunk, and the roots had raised and broken three contiguous slabs of concrete. One slab had been raised four inches above the adjoining slab. This condition existed for about five years before the plaintiff's accident, and was readily observable. Plaintiff's expert testified that all "the adjoining slabs of this tree, as they radiate to the tree itself, they're heaved, and as they go away they become depressed." This testimony and photographs admitted in evidence clearly show that the causal relationship between the defective sidewalk and the growth of the tree roots was also ascertainable by visual inspection. The records of the city indicate the Shade Tree Bureau inspected the tree once -- at the defendant Curley's request -- about four months prior to the accident, to remove a limb broken by a storm. The Bureau employees who removed the limb did not report the condition of the abutting sidewalk to their superiors.
On November 8, 1957, at about 5:30 P.M., the plaintiff, while walking in front of defendant Curley's home, tripped and fell over the raised sidewalk. At the time of his fall the weather was clear; the streets were dry; it was becoming dark; and a street light twenty-four feet from the location of the accident was lit. Plaintiff lived in the neighborhood but had not walked on that part of the street for ten years prior to the accident.
Defendant Curley had made minor repairs to the sidewalk but not in the location where the fall occurred.
We first consider the propriety of the dismissal in favor of the defendant Jersey City. The trial court granted the city's motion on the ground there was no evidence that the city knew of the condition of the sidewalk or that the condition was traceable to the growth of the tree, and that therefore, there was no evidence of negligence. The Appellate Division affirmed on a different ground. Plaintiff made no assertion below that the city in planting and maintaining trees was engaged in a proprietary function. Under our decisional law, a municipality is liable for the injury-inflicting conduct of its servants engaged in governmental functions only if the plaintiff proves "active wrongdoing." McAndrew v. Mularchuk, 33 N.J. 172, 181 (1960). The Appellate Division held that the plaintiff did not sustain this burden.
To constitute "active wrongdoing" a municipality's injury-inflicting conduct must consist of something more than a negligent failure or omission to act. Buckalew v. Board of Chosen Freeholders of Middlesex, 91 N.J.L. 517 (E. & A. 1917) (county held not liable for failure to repair road defects caused by natural elements). The city argues that since there is no evidence it improperly planted the tree, its culpatory conduct, if any, consisted solely of a failure to prevent or correct the subsequently-arising sidewalk defect, i.e., the alleged misconduct was an omission to act rather than active wrongdoing. The ...