Sullivan, Lewis and Labrecque. Labrecque, J.s.c. (temporarily assigned).
This court granted leave to appeal from an order of the Law Division denying the motion of defendant Hudson County Park Commission for summary judgment. The question involved is whether R.S. 40:9-2 affords immunity to defendant commission for injuries sustained by the infant plaintiff from a fire which had been ignited on defendant's property by one of its employees for the purpose of burning refuse thereon.
The provisions of R.S. 40:9-2 are as follows:
"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."
For the purpose of the motion for summary judgment the trial court was required to consider all well pleaded facts as true. DeMarco v. Estlow , 18 N.J. Super. 30 (Ch. Div. 1952), affirmed 21 N.J. Super. 356 (App. Div. 1952). From
the complaint and pretrial order we glean that on April 29, 1960 the infant plaintiff, Daniel Wall, aged five, was playing in Mercer Park, a public park 6.4 acres in area operated and controlled by defendant Hudson County Park Commission. He resided with his parents in the adjacent Currie Woods Housing Project. On the day in question one of defendant's employees had started a fire for the purpose of disposing of some burnable waste and had thereafter departed, leaving the same unguarded. Daniel came upon the location of the fire and while playing suffered burns which resulted in the amputation of one of his legs. The present suit seeks damages for his injuries. His father joins for expenses and loss of services.
The single issue presented is whether, as defendant asserts, R.S. 40:9-2 exempts a county park commission from liability for injury to the person arising from the use of public grounds under its jurisdiction. If it does, it is contended that the Law Division had no alternative but to grant defendant's motion to dismiss the action, regardless of whether the injury resulted from mere negligence or from active wrongdoing. On behalf of plaintiffs it is urged that the statute does not cover operations of a park commission established under the County Park Act, originally L. 1895, c. 91, now R.S. 40:37-96 et seq. It is also contended that the statute is inapplicable since the action arose out of the performance of a proprietary rather than a governmental function. Additionally, the injuries are said not to have resulted from the use of any public grounds, a requirement of the statute in question. See Estelle v. Board of Education of Red Bank , 26 N.J. Super. 9, 19 (App. Div. 1953); Schwartz v. Stockton , 32 N.J. 141, 153 (1960).
As originally enacted, the statute in question had also included school districts. In 1937 the present form was adopted and the liability of school districts was made the subject of a separate enactment. R.S. 18:5-30. The effect of the statute upon our case law has been comprehensively dealt with by our Supreme Court in Schwartz v. Stockton, supra , and by
this court in Weeks v. Newark , 62 N.J. Super. 166 (App. Div. 1960), affirmed per curiam 34 N.J. 250 (1961). Substantially, it has been held that the statute bars liability if the grounds, buildings or structures from the use of which the injury resulted are devoted to a governmental as distinguished from a proprietary function or activity, and this regardless of the presence or absence of active wrongdoing. No reported case appears to have passed upon the question of the applicability of the statute to park commissions established under the County Park Act.
In the absence of the statutory exemption provided by R.S. 40:9-2, a county or municipality may be held liable in damages for negligence in the performance of a proprietary function and for active wrongdoing or positive misfeasance in the performance of a governmental function. Martin v. Asbury Park , 111 N.J.L. 364 (E. & A. 1933); Olesiewicz v. Camden , 100 N.J.L. 336 (E. & A. 1924); Allas v. Rumson , 115 N.J.L. 593 (E. & A. 1935); Milstrey v. Hackensack , 6 N.J. 400 (1951); Hartman v. Brigantine , 23 N.J. 530 (1957); Becker v. Newark , 72 N.J. Super. 355 (App. Div. 1962); Hammond v. County of Monmouth , 117 N.J.L. 11 (Sup. Ct. 1936); Selph v. Morristown , 16 N.J. Misc. 19 (Sup. Ct. 1938); 2 Harper & James, The Law of Torts , §§ 29.6 and 29.7 (1956).
The statute in question involves an explicit declaration of public policy. It follows that in determining whether defendant's liability was encompassed within the exemption which it affords, our duty is to give effect to the statutory command to the full extent of the intent of the ...