Sullivan, Foley and Leonard. The opinion of the court was delivered by Sullivan, S.j.a.d.
Plaintiffs appeal from an order of involuntary dismissal with prejudice in favor of defendant Wall Township granted at the close of plaintiffs' case.
The case arises out of a two-car collision at the intersection of State Highway 34 and Airport Road in Wall Township. The intersection is controlled by traffic lights erected and maintained by the State Highway Department.
The intersection is so designed that a motorist proceeding north on Route 34 and intending to turn west on Airport Road would go around a jughandle on the easterly side of Route 34 and then cross the highway at the intersection when the traffic light changed to green for east-west traffic.
It was undisputed that the township's police officers, as part of their duties, were assigned to patrol that part of Route 34 within the municipal limits. See R.S. 39:5-1. This included investigating accidents on the highway and reporting any dangerous condition in and about the same.
On the date in question, at about 6:16 A.M., a township police officer noted that the traffic light which controlled southbound traffic on Route 34 had broken loose and turned, and was facing in an easterly direction. He radioed the information into headquarters and an entry was made in the log that the desk call the Highway Department after 8 A.M. The township police made no effort to warn highway users of the damaged light.
At about 8:45 A.M. that morning, defendant Virginia Koppenal was proceeding north on Route 34 intending to go west on Airport Road. She had been traveling this route
each working day for about a year. She went around the jughandle and was stopped for about 30 seconds when she noticed the twisted light shining green in her direction. She started through the intersection and collided with plaintiffs' vehicle, which was proceeding north on Route 34 and actually had the green light in its favor.
After the accident a township police officer reported to the scene to "conduct traffic so that there would be an even flow of traffic continuing down on Route 34."
In dismissing plaintiffs' suit against the municipality the trial court held that the township was not responsible because it had no control over the traffic light. It further held that under Hoy v. Capelli, 48 N.J. 81 (1966) the jury could not be allowed to pass on the reasonableness of the township's action because the decision as to what action to take in the circumstances was a discretionary and legislative function which could not form the basis of tort liability. In effect, the trial court held that as a matter of law the township was under no duty to act.
Plaintiffs' suit against Mrs. Koppenal was submitted to the jury which returned a verdict in favor of plaintiffs for $40,500. This judgment has been only partially satisfied.
In this era of expanding municipal tort liability the traditional proprietary-governmental test has fallen into disrepute. B.W. King, Inc. v. Town of West New York, 49 N.J. 318 (1967). Instead, the relevant inquiry is whether or not the municipality is under a duty to act, as distinguished from a situation where the taking of any action is discretionary, or the matter involves the making of a basic governmental policy decision. Hoy v. Capelli, supra; Visidor Corp. v. Borough of Cliffside Park, 48 N.J. 214 (1966); Amelchenko v. Borough of Freehold, 4 ...