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Visidor Corp. v. Borough of Cliffside Park

Decided: November 21, 1966.

VISIDOR CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BOROUGH OF CLIFFSIDE PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The Appellate Division, in an opinion reported under the name of DeCarlo v. Cliffside Park, at 90 N.J. Super. 126 (1966), reversed the Law Division's dismissal of the damage claim of the plaintiff Visidor Corporation against the defendant Borough of Cliffside Park. 86 N.J. Super. 169 (1965). We granted certification on the Borough's application. 46 N.J. 539 (1966).

Visidor operates a tavern and restaurant in a building located on Palisade Avenue in Cliffside Park and leased from Dominick DeCarlo. The building is at the corner of Marion

Avenue and Palisade Avenue, directly opposite the Palisades Amusement Park. A parking lot in the rear of the building is used in connection with the tavern and restaurant and is accessible only from Marion Avenue. In March 1961 the Borough decided that Marion Avenue, along with Wayne Avenue and Franklin Avenue to the south thereof, should be made a one-way street. Directional signs were installed and as a result traffic could no longer enter Marion Avenue from Palisade Avenue. A motorist wishing to park in the rear would enter Wayne Avenue, then turn right on an undedicated strip of land, formerly a trolley car right of way, and then right again into Marion Avenue.

In March 1964 Visidor and DeCarlo filed a two-count complaint in lieu of prerogative writ. The first count alleged that the Borough's designation of Marion, Wayne and Franklin Avenues as one-way streets was illegal in that it was never authorized by an ordinance having the approval of the Division of Motor Vehicles as required by N.J.S.A. 39:4-197, N.J.S.A. 39:4-8 and N.J.S.A. 39:4-202. The relief sought under the first count was a declaration that the designation of the avenues as one-way streets was void and of no effect. The second count alleged that the illegal designation of Marion Avenue as a one-way street constituted a private nuisance which had caused financial loss to DeCarlo and to Visidor in that its business had been greatly reduced by virtue of the Borough's action. The relief sought under the second count was a judgment for money damages.

After the Borough admitted that no ordinance having departmental approval had ever been adopted, a motion for summary judgment was made as to the first count, and on April 17, 1964 a summary judgment was entered voiding the one-way designation. Thereupon the Borough removed the directional signs and the avenues were then conducted as two-way streets. In December 1964 the matter went to trial on the second count. DeCarlo acknowledged that he had suffered no damage and his claim was dismissed without any ensuing appeal. Visidor pressed the claim that it had suffered loss of

profits during 1961-64 in the aggregate sum of $15,000 but the trial court dismissed this claim as well. It held that the law would not recognize any such damage claim against the Borough on the basis of the illegal designation of the avenues as one-way streets. 86 N.J. Super., at p. 174. Visidor appealed the dismissal to the Appellate Division, which reversed in a brief per curiam embodying its view that Visidor's case came within the New Jersey precedents which hold that municipalities have no immunity from tort claims for damages resulting from their "active wrongdoing." 90 N.J. Super., at p. 127; see McAndrew v. Mularchuk, 33 N.J. 172, 181 (1960); Hayden v. Curley, 34 N.J. 420, 424 (1961).

In Mularchuk a municipal patrolman shot and wounded a young man who thereafter sued the municipality, alleging that it had negligently sanctioned the arming of the patrolman with a dangerous weapon without having adequately trained him in its use. In holding that there could be recovery, we pointed to the widespread attacks on sovereign immunity throughout the country and to the expanding applications within New Jersey of its doctrine that a municipality may be held accountable for injurious acts performed in its governmental capacity when they constitute active wrongdoing. 33 N.J., at pp. 181-182, 190-196. In the many jurisdictions which have gone even further than New Jersey in disavowing sovereign immunity, a municipality may be held accountable though its negligence is grounded on acts of omission, rather than on acts of commission which are subsumed in New Jersey under the terminology of active wrongdoing. Thus in Holytz v. City of Milwaukee, 17 Wis. 2 d 26, 115 N.W. 2 d 618 (1962), the Wisconsin Supreme Court, after referring to New Jersey's doctrine, pointed out that its own abrogation of municipal immunity would "apply broadly to torts, whether they be by commission or omission." 115 N.W. 2 d, at p. 625; see Prosser, Torts 1010-1013 (3 d ed. 1964); 2 Harper and James, Torts 1619-1627 (1956); California Law Revision Commission, A Study Relating to Sovereign Immunity 260-266 (1963).

Although the out-of-state cases abrogating municipal and other governmental immunity speak in very broad terms, they recognize that certain types of governmental activity must remain free from any resulting damage claims because they are properly viewed as nontortious or are otherwise deemed immune for controlling policy reasons. In Hargrove v. Town of Cocoa Beach, 96 So. 2 d 130, 133 (Fla. 1957), the Florida Supreme Court, in allowing an action against a city for wrongful death resulting from the negligence of a municipal police officer, abrogated prior holdings of municipal immunity, but in the course of its opinion took pains to point out that the abrogation would not "impose liability on the municipality in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial, functions as illustrated in such cases as Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049; and Akin v. City of Miami, Fla. 1963, 65 So. 2d 54 [37 A.L.R. 2 d 691]." Elrod rejected a damage claim against a city grounded on its enforcement of an allegedly unconstitutional ordinance restricting house-to-house mercantile solicitation within the city limits; and Akin rejected a damage claim against the city based on its alleged illegal refusal to issue a building permit. See also Modlin v. Washington Avenue Food Center, 178 So. 2 d 596, 601 (Fla. D. Ct. App. 1965); Calbeck v. Town of South Pasadena, Florida, 128 So. 2 d 138, 139 (Fla. D. Ct. App. 1961); Annot., 37 A.L.R. 2 d 694 (1954); Annot., 118 A.L.R. 1054 (1939).

When the Kentucky Court of Appeals discarded municipal immunity in an action against a city for a child's death allegedly caused by the city's negligent operation of a swimming pool, it stated, as the Florida court had in Hargrove, that its opinion was not to be construed as imposing liability on a municipality for damages resulting from the exercise of its legislative functions. Haney v. City of Lexington, 386 S.W. 2 d 738, 742 (Ky. 1964). Similarly in Spanel v. Mounds ...


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