For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Hall, J.
[48 NJ Page 82] Traffic at the intersection of Wildwood and Atlantic Avenues in Wildwood was controlled on January 13, 1964 and for some time previously by a single overhead traffic light. Prior to the installation of the light by the city, regulation had been by two stop signs requiring vehicles proceeding on Wildwood Avenue to come to a halt before
entering the intersection. The signs were removed when the light was installed. On the date mentioned, the city took the light down completely because it was broken and required replacement. The intersection thereafter had no traffic controls. The record is not entirely clear whether this was simply a case of delay in obtaining and erecting a replacement or whether the municipality had decided to do away with the light at this corner permanently. We think it makes no difference as far as the determination of the case is concerned.
On March 2, 1964, plaintiff was driving his car westerly on Wildwood Avenue. According to his deposition, when he reached the Atlantic Avenue intersection, he stopped and looked in both directions. This is the same action he would have been required to take had there been a stop sign at the corner. Seeing no vehicle approaching on Atlantic Avenue, he entered the intersection and a collision resulted with the car of the defendants Capelli, which was proceeding southerly. Each driver said he had not seen the other until almost the moment of impact. There is no indication whatever of any reliance by either operator on the fact that there had once been a traffic light or stop signs at the corner or that either even knew of their past existence. The complete absence of the traffic light therefore had nothing to do with the accident, except in the sense that if traffic had been regulated by a light, it might not have occurred. The same thing would, of course, be true with respect to any unregulated intersection.
The plaintiff sued the Capellis (driver and owner) and the city for his injuries. Thomas Capelli, the driver, cross-claimed against the city for his injuries and the defendants cross-claimed against each other for contribution with respect to any recovery by plaintiff.
The city moved for summary judgment on the ground that, based on the uncontradicted depositions of the drivers and answers to interrogatories, it was engaged in a so-called governmental function in the removal of the light, that its acts did not constitute "active wrongdoing" as a matter of law, and that it was consequently immune from liability. The
trial court granted the motion, finding that there was governmental immunity under the facts. The joint appeal of the plaintiff and the Capellis to the Appellate Division was certified on our own motion before disposition there. R.R. 1:10-1(a).
The agreed statement in lieu of record, R.R. 1:6-2, poses the contention the appellants assert as follows: "* * * the activity performed by the City of Wildwood in removing the traffic control without replacing same immediately or within a reasonable time thereafter, the period from January 13, 1964 to March 2, 1964, being unreasonable, and without providing or installing a temporary traffic control device, be it traffic light or stop sign or police officer, etc., constituted active wrongdoing either as a matter of law or as a factual dispute to be determined by a jury." They further urge that this court should now advance beyond the present state of our law and declare a municipality responsible for acts of omission or simple negligence even though it was at the time engaged in a governmental activity and the conduct did not amount to active wrongdoing. In the view we take of the case, we do not reach this question.
Under the current law of this State, municipal immunity, generally speaking, "is confined to those activities which the municipality undertakes as the agent of the State as distinguished from those which it pursues in its corporate or proprietary capacity." Cloyes v. Delaware Township, 23 N.J. 324, 327 (1957). That unsatisfactory distinction has, however, been quite undermined here as the cited decision indicates and as a leading scholar in the field has commented. 3 Davis, Administrative Law Treatise § 25.07, p. 466 (1958). Even in the case of a so-called governmental activity, which all parties agree traffic control is, immunity is no longer complete by any means. As this court summarized in McAndrew v. Mularchuk, 33 N.J. 172, 181 (1960):
"Liability is imposed for injurious acts performed by a municipality in its governmental capacity when they constitute active wrongdoing. That is, when a person suffers an injury through a negligent act of
commission, as distinguished from a negligent failure to act, an obligation to respond in damages is recognized. It is not necessary that the negligent act of commission be the most proximate or nearest in time in a sequence of causes to the injury sustained; it is sufficient if, in the sequence, there is such an affirmative wrongful act even though the cause nearest in the succession of causes may be a mere omission to act. Hartman v. City of Brigantine, 23 N.J. 530, 533 (1957); Cloyes v. Delaware Tp., 23 N.J. 324, 329 (1957); Taverna v. City of Hoboken, 43 N.J. Super. 160, 165 (App. Div. ...