Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.
[68 NJSuper Page 39] This appeal by the City of Hackensack projects the issue of whether a municipally-owned, metered
parking lot is a "governmental" or "proprietary" function for purposes of tort liability.
Plaintiff suffered a fractured hip and other painful injuries when she slipped and fell on the ice-covered lot. The accident occurred on January 18, 1958; five inches of snow had recently fallen in the area, followed by rain, sleet and sub-freezing temperatures. Plaintiff had driven to Hackensack with her mother in order to do some shopping. She had turned off State Street into the city-owned and operated lot adjoining the rear of several retail stores, whose front entrances were located on Main Street, the principal shopping area of the city. She parked in front of a meter, emerged from the car, and as she proceeded to walk behind the vehicle she slipped and fell.
Suit was instituted in the Bergen County Court, charging the city with negligence in maintaining the lot in a dangerous and unsafe condition. The municipality countered with assertions of contributory negligence and assumption of risk; in addition, the city claimed that, as a municipal corporation, it was "immune from liability under the facts of this case." At trial, defendant moved for dismissal at the close of plaintiff's proofs on the ground (among others) of municipal immunity; the court denied the motion, concluding that the ownership and operation of the parking lot was a proprietary activity. An identical motion at the close of all the evidence was likewise rejected by the trial judge, who proceeded to charge the jury in terms of ordinary negligence. The jurors returned a verdict in plaintiff's favor in the amount of $10,000, upon which the judgment here under review was entered. The city does not contest on this appeal the sufficiency of the evidence to support the jury's conclusions with respect to negligence, contributory negligence, and assumption of risk.
Hackensack's sole position on this appeal is that the question of whether municipal parking facilities constitute a "governmental" function has already been resolved in the affirmative by the Supreme Court in Camden Plaza Parking
v. City of Camden , 16 N.J. 150 (1954). The issue in Camden Plaza was whether a city could lease municipally-owned lands to a private corporation for the construction and operation of an off-street public parking structure. The court held that there was no statutory authority to so lease in the absence of a parking authority under N.J.S.A. 40:11A-1 et seq. , and, since Camden had not created such an authority, the attempted arrangement was illegal and void. Prior to reaching the crux of the litigation, Justice Brennan discussed (16 N.J. , at p. 154), in general terms, the power of a municipality to establish public parking facilities:
"Action by a municipality to relieve traffic congestion through the establishment of off-street public parking facilities is the exercise of a public and essential governmental function, and publicly-owned lands used for such purposes are devoted to a public use. The parking crisis in the modern day threatens the very welfare of the community, and statutes and court decisions recognize that public lands employed by public bodies for public off-street parking are devoted to a public purpose. R.S. 40:60-25.1, R.S. 40:56-1.1, R.S. 40:11A-1; * * *."
We do not consider Camden Plaza dispositive of the issue here confronting us. The language relied upon is essentially repetitive of the court's prior exposition in De Lorenzo v. City of Hackensack , 9 N.J. 379, 384-85 (1952), declaring the municipal maintenance of off-street parking facilities, designed to meet the problem of traffic congestion, to be a proper public purpose within statutory and constitutional limitations. This is of course a sound proposition which is no longer open to serious doubt. Cf. City of Trenton v. Lenzner , 16 N.J. 465, 471 (1954). See cases collected in Annotation, 8 A.L.R. 2 d 373, 375-78 (1949), and supplement thereto.
But to hold that a particular function undertaken by a governmental authority is properly in furtherance of a public -- as opposed to a private -- objective, for the purpose of expenditure of public funds, is not the equivalent
of stamping the activity as "governmental" for purposes of tort liability. The legislative powers of our municipalities must, unless otherwise authorized by the Legislature (subject to constitutional restrictions), be limited to those activities which contribute in some discernible fashion to the preservation and promotion of the public health, safety or welfare. N.J. Good Humor, Inc. v. Bradley Beach , 124 N.J.L. 162 (E. & A. 1940); Hart v. Teaneck Township , 135 N.J.L. 174, 176 (E. & A. 1947); 2 McQuillin, Municipal Corporations , § 10.31, p. 647. See R.S. 40:48-1, 48-2. Thus, to construe an activity as "governmental" in the sense that its purpose is consonant with the aims and objectives of governmental activity in a democracy, is not to resolve the question of ...