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Fahey v. City of Jersey City

Decided: June 28, 1968.

JOHN FAHEY, AN INFANT, BY HIS GUARDIAN AD LITEM, THOMAS FAHEY, AND THOMAS FAHEY AND VIRGINIA FAHEY, HIS WIFE, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
CITY OF JERSEY CITY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT. GERALD MARK WILLIAMS, BY HIS GUARDIAN AD LITEM, JERRY WILLIAMS, AND JERRY WILLIAMS, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, V. BOROUGH OF RED BANK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Appellate Division.

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

Schettino

These two cases have been consolidated as each involves the question of municipal immunity from tort actions arising out of the construction and maintenance of public playgrounds and recreational facilities. They present similar factual patterns and legal issues.

On August 28, 1964, infant plaintiff in A-43, John Fahey, then 11 years of age, was playing in the playground area of a public park owned and maintained by defendant Jersey City. While walking across the balancing bar of a seesaw, the youth fell, sustaining injuries for which suit was filed against defendant in the Law Division.

Defendant's subsequent motion to dismiss was granted on the basis that R.S. 40:9-2 conferred immunity upon the municipality for suits arising out of the maintenance of a public playground. In an unreported opinion the Appellate Division affirmed and we granted certification. 48 N.J. 448 (1967).

On September 9, 1964, infant plaintiff in A-44, Gerald Mark Williams, then age three, went with other children to a portion of the municipal park in the Borough of Red

Bank known as "Candy Cane City." Among the swings, slides, and other recreational equipment contained in the park was a "firemen's slide." This consisted of a platform, approximately 12 feet high, with a circular hole in the middle and a pole running from the ground up through the center of the hole in the platform. Children were apparently accustomed to climbing the ladder leading to the platform and sliding down the pole to the ground. On this occasion, however, the Williams child fell from the platform to the ground, injuring himself.

In the subsequent damage suit against the municipality, the trial court granted defendant's motion for summary judgment, once again on the basis that R.S. 40:9-2 constituted an absolute bar to the action. In an unreported opinion the Appellate Division affirmed and we granted certification. 48 N.J. 574 (1967).

I

The statute in question, R.S. 40:9-2, reads as follows:

"No municipality or county shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding."

The first question is whether public recreational areas of the type herein involved fall within the statutory category of "public grounds, buildings or structures." This inquiry is necessary only because R.S. 40:9-2 has, in the past, been read not to include certain municipal properties -- principally streets and other thoroughfares -- which might literally be viewed as "grounds" within the legislative grant of immunity. Schwartau v. Miesmer, 50 N.J. Super. 399 (App. Div. 1958) (public street); Selph v. Morristown, 16 N.J. Misc. 19, 195 A. 862 (Sup. Ct. 1938) ...


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