This matter came on for hearing on March 17, 1961, and is a motion for summary judgment by the defendant, the New Jersey Highway Authority, on the ground that it is the alter ego of the State of New Jersey and consequently is shielded from liability by the immunity of the sovereign. The plaintiffs, the Borough of Sayreville and the Board of Chosen Freeholders of Middlesex County, urge that the sovereign has consented to suit by unequivocal language embodied in the legislation which created the New Jersey Highway Authority. The plaintiffs allude to the power "To sue and be sued in its own name" which was accorded the Authority in N.J.S.A. 27:12B-5(d).
In their complaint the plaintiffs assert that the defendant damaged municipal and county roads by the improper construction and maintenance of a section of the sewerage system on the Garden State Parkway. The plaintiffs allege that the defendant perpetrated an active wrong through faulty construction and maintenance of the sewerage system section, causing waters to flow on and about their public roads and resulting in loss occasioned by the cost of repair and corrective measures. For the purpose of the motion, the defendant admits the active wrongdoing alleged by the plaintiffs.
After a careful consideration of the briefs, oral argument of counsel, and the pertinent authorities, this court must deny the defendant's motion for summary judgment. This holding is based entirely on the consent to suit set forth in N.J.S.A. 27:12B-5(d). Although there is no case which has decided the precise issue presented in the instant matter, there is authority which this court feels is both germane and impelling.
The defendant contends that the language which empowers it to sue and be sued does not constitute a waiver of the
sovereign immunity of the State of New Jersey which immunizes the defendant from liability in the instant civil action because of its status as a state instrumentality. The authorities relied upon are the cases of Sussex County Board of Chosen Freeholders v. Strader , 18 N.J.L. 108 (Sup. Ct. 1840), and Stephens v. Com'rs of Palisades Interstate Park , 93 N.J.L. 500 (E. & A. 1919). It is contended that those decisions establish that the power to sue or be sued exposes the Authority to law suits but does not affect the liability of the Authority. The defendant urges that the liability of the Authority is to be determined by the common law principles of tort.
The legislative intent in providing for the power to sue and be sued as set forth in N.J.S.A. 27:12B-5(d) was examined by the Supreme Court in Taylor v. New Jersey Highway Authority , 22 N.J. 454 (1956). Although the instant question was not decided in Taylor , the court's discussion of the subject is pertinent here. Two cases cited and analyzed in Taylor support the argument that, by providing the power to sue the Authority, the State waived its immunity.
In Strobel Steel Construction Co. v. State Highway Comm. , 120 N.J.L. 298 (1938), the Court of Errors and Appeals expressed the opinion that such a clause amounted to a waiver of sovereign immunity. That decision upheld the sovereign immunity of the State Highway Commission where there was no power to sue clause and by contrast said:
"If the legislature had intended that the highway commission, or commissioner, might be sued it could have said so in plain and explicit language as it did when creating other commissions -- such as the Commissioners of Palisades Park (Rev. Stat. , 32:14-2); Delaware River Joint Commission (Idem. , 32:3-5); Delaware River Joint Toll Bridge Commission (Idem. , 32:8-3); South Jersey Port District (Rev. Stat. , 12:11-2); Port Raritan District (Idem. , 12:12-2); High Point Park (Idem. , 13:5-2), in all of which legislation, after stating that the board or commission was created a body politic, the words 'with power to sue and be sued,' or their equivalent, are found." (at p. 303)
In Karp v. High Point Park Commission , 131 N.J. Eq. 249 (Ch. 1942), affirmed 132 N.J. Eq. 351 (E. & A. 1942), the defendant's contention was similar to that made by the defendant in the instant case. However, the court there held that the Commission could be proceeded against in a suit to quiet title. The court expressed its decision as follows:
"Our statute, R.S. 13:5-2, enacts that the Board of Commissioners of High Point Park and its successors shall be a body politic with power to sue and be sued. The defendant argues that these words only confer a power on the Commissioners and mean that the Commissioners may be sued in those cases in which the legislature, by some other enactment, consents that the defendant be sued. I do not so construe them. The section constitutes a consent by the legislature to suit against the Commission. In the Strobel case * * * cited above, it is clear that the court was of the opinion that the words 'with power to sue and be sued' have this result. To the same effect are Ward v. Board of Regents [of] Kansas, etc., College , 8 Cir. , 138 F. 372, 70 C.C.A. 512; Packard Co. v. Commissioners of Palisades Interstate Park, D.C. , 240 F. 543; Utah Const. Co. v. State Highway Commission, D.C. , 16 F.2d 322; Board of Trustees v. Bruner , 175 Ill. 307, 51 N.E. 687, and Butterfield v. State Industrial Accident Commission , 111 Or. 149, 223 P. 941, 226 P. 216. The defendant relies on Stephens v. Commissioners of Palisades Interstate Park , 93 N.J.L. 500. But there, the judgment for defendant went on the ground that no cause of action in favor of an individual arose ...