Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.
Challenged on these appeals is the propriety of a summary judgment granted in favor of defendant municipality and against plaintiffs in an action brought against the municipality and other defendants to recover for personal injuries and property damage.
On October 22, 1964 plaintiff Madonna M. Brenner drove her automobile off the end of Pine Street, a dead-end street located in a development known as Robbins Estates in defendant township. The car came to rest hanging over a concrete slab forming a retaining wall beyond the end of the street. The base of the retaining wall was some six feet below the street level.
Madonna, her husband Ian A. Brenner, and the owner of the automobile, Jack Brenner, filed a complaint for damages against the township, Lakewood Development Company and Peters, the township engineer, who had also acted as engineer for the developer in connection with the project. Plaintiffs alleged negligence and creation of a nuisance against defendants Lakewood Development and Peters; they also asserted negligence and active wrongdoing, as well as maintenance of a nuisance, on the part of defendant municipality.
The trial judge granted summary judgment in favor of the municipality on the ground that there was no evidence which would raise a genuine material fact evidencing active wrongdoing on its part.
Plaintiffs and codefendants argue that the proofs as to defendant township's conduct establish active wrongdoing which precluded the grant of summary judgment. We agree that the record shows that there are material issues of fact as to certain of these allegations. Under such circumstances a summary judgment may not be granted. See Frank Rizzo, Inc. v. Alatsas, 27 N.J. 400, 405 (1958).
The allegation is made that in 1963 and 1964 workmen employed by the township performed certain drainage work at the end of Pine Street where the accident occurred. It is also asserted that there was no barrier at the end of Pine Street where a six-foot drop existed, or lights or sign warning of the danger; that complaints had been made to the township for a period of six months before the accident about the absence of a barricade, and that in June 1964, as a result of a complaint, the township mayor inspected the unprotected drop at the end of the street.
These factual contentions find support in the affidavits of the president of the development company, affidavits of two residents in the vicinity of Pine Street, copies of municipal records and photographs of the site of the accident. An affidavit of the mayor states that Pine Street, at the time of the accident, was in substantially the same condition as it was when accepted by the township. Proof establishing these factual claims would create issues of fact from which the existence of a cause of action against the municipality on the ground of active wrongdoing can be inferred. Hartman v. City of Brigantine, 42 N.J. Super. 247, 258 (App. Div. 1956), affirmed 23 N.J. 530 (1957), and cases there cited. Consequently, summary judgment should not have been granted.
However, the official acts of the municipality in approving the subdivision map and the street layout, the construction of the street, the inspection and certification thereof by the township engineer, and the acceptance of the street and filing of the maintenance and performance bonds, provide no basis for a cause of action in tort liability against the municipality. Each of these acts was presumably performed by the municipality pursuant to the authority of the Municipal Planning Act (1953), N.J.S.A. 40:55-1.1 et seq. Consequently, proof of these activities, if true, furnishes no basis for a claim against the municipality and is not relevant.
In Levin v. Livingston Tp., 35 N.J. 500, 506 (1961), Justice Hall concisely describes the basic governmental nature of
municipal subdivision regulation and points up its relation to the planning ...