On appeal from the Union County District Court.
Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
[92 NJSuper Page 509] Plaintiff widow, as general administratrix and as administratrix ad prosequendum, sued to recover damages for her husband's pain and suffering, and
for his wrongful death. The original complaint named only the Sandy Hook Reservation Authority (Authority); thereafter the complaint was amended to join the State of New Jersey. The answer denied negligence and, by way of separate defenses, set up contributory negligence, sovereign immunity, and the nonexistence of the Authority. After both sides had propounded and answered interrogatories, and the State had deposed plaintiff's sole witness, the State moved for summary judgment on the dual grounds of sovereign immunity and freedom from negligence as a matter of law. The motion was granted on the sovereign immunity ground. Plaintiff appeals from the resultant judgment.
Three grounds for reversal are urged: (1) the Legislature has waived sovereign immunity with regard to actions arising from the operations of the Authority at Sandy Hook State Park; (2) the operation of a bathing facility by the Authority is a proprietary activity, so that plaintiff may recover for her husband's death by drowning, allegedly the result of the negligence of the Authority's lifeguards, both by way of omission and active wrongdoing; and, finally, (3) the doctrine of sovereign immunity should be overruled.
The operation of the bathing facility at Sandy Hook State Park produces considerable revenue and would ordinarily be considered a proprietary function. Cf. Weeks v. Newark, 62 N.J. Super. 166 (App. Div. 1960), affirmed o.b., 34 N.J. 250 (1961) (municipal swimming pool); and see, Annotation, "Municipal operation of bathing beach or swimming pool as governmental or proprietary function, for purposes of tort liability," 55 A.L.R. 2 d 1434 (1957). But in New Jersey this factor does not dispose of the State's immunity from suit -- at best it only opens the door to tort liability where a municipality operates the facility. Plaintiff has failed to see the problem in its true dimensions; she cites many cases imposing liability for negligence where the activity is proprietary, and although recognizing that they all involve municipalities, contends that there is "no reason
why the State should not be equally liable." This approach is simplistic in the extreme.
The suit against the Authority is misdirected, and this for the reason that the Authority does not exist and has never existed. The history of the State's acquisition of the Sandy Hook tract from the Federal Government for use as a state park is one of years of fruitless negotiation and disappointment. In 1950 the United States Army finally agreed to vacate the tract, and the report of the "Governor's Committee to Explore the Possibility of Creating a State-Owned Recreational Park at Sandy Hook" recommended that an independent Authority be set up to acquire the land for the State and to construct and operate the facilities. A detailed plan was submitted to the Governor, endorsing the feasibility of operating the park.
The response of the Legislature was the passage in 1950 of the Sandy Hook Reservation Authority Act, L. 1950, c. 290 (N.J.S.A. 13:15-1 to 20). The act created and established in the State Department of Conservation and Economic Development a body corporate and politic, to be known as the Sandy Hook Reservation Authority, which was to acquire, construct, develop, finance and operate Sandy Hook State Park. N.J.S.A. 13:15-2. It was to consist of five members, to be appointed by the Governor with the advice and consent of the Senate. N.J.S.A. 13:15-3. Among the powers given the Authority was "to sue and be sued in its own name." N.J.S.A. 13:15-6(a).
Of particular significance to the instant case is N.J.S.A. 13:15-16, which states, in pertinent part, that
"The foregoing sections of this act shall be deemed to provide an additional and alternative method for the doing of the things authorized thereby, and shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing; * * *." (Italics ours)
At the time the Legislature was considering the bill of which this section is a part, it also had ...