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 Weintraub, C.J.
This action was brought on behalf of the infant Tomi Willis and her parents per quod to recover damages for injuries suffered by the child on a visit to High Point Park, a recreational facility of the State. Apparently an admission charge was made between Memorial Day and Labor Day but not the rest of the year. It was on November 6, 1966 that the child, age 3, sustained a traumatic amputation of her arm when she fed sugar to a caged bear. Two or three bears had been exhibited there since the 1930's. Plaintiffs asserted the State was absolutely liable for injuries inflicted by a wild animal thus contained and in any event that the State was negligent because it failed to erect and maintain suitable barriers around the cage, left the cage unattended, and permitted holes to remain in the screening through which the child inserted her arm with the tragic consequence already mentioned.
On motion the trial court gave judgment for defendant upon its plea of sovereign immunity. The Appellate Division
reversed, and one judge dissenting, this appeal was taken to us as of right. R. 2:2-1(a).
The majority in the Appellate Division held that the State had waived its immunity from suit. In brief, the thesis was that at one time High Point Park was held by High Point Park Commission, an agency of the State, which was a body politic "with power to sue and be sued," R.S. 13:5-2; that under Taylor v. New Jersey Highway Authority, 22 N.J. 454, 468-471 (1956), the grant of the power to sue and be sued constituted a consent by the Legislature to suits, including actions in tort, against the State agency; and that when in 1945 the Commission went out of existence and its functions were transferred to a department of the State, N.J.S.A. 13:1A-24 and 42, the transfer carried with it the same consent to suit. The dissenting judge in the Appellate Division could not find the Legislature intended a transfer of that consent, and we agree. The case therefore presents the question whether the judiciary should continue to refuse to pass upon the State's tort liability in the absence of a statute consenting to that course.
Recently we held the judiciary should entertain actions against the State on contracts it makes. P, T & L Construction Co. v. Commissioner of Transportation, State of New Jersey, 55 N.J. 341 (1970). We there pointed out that the claim of sovereign immunity involved ultimately a problem of separation of powers, and that while it was conceptually correct for the judiciary to adjudge whether the State ought to satisfy a claim against it, nonetheless the Constitution committed to the other branches the power to decide whether to appropriate moneys to pay a judgment. Thus the willingness of the judiciary to act depended upon whether its judgments would be but idle declarations. We concluded that surely with respect to contracts the State itself makes, we should not assume our judgments would be ignored.
Here we have a claim in tort. In Fitzgerald v. Palmer, 47 N.J. 106 (1966), we declined to decide whether
the judiciary should accept tort litigation against the State. There a motorist driving under an overpass was killed by a piece of concrete intentionally thrown by an unknown person from the overpass. The thesis of the complaint was that the Highway Department, in constructing the overpass, should have guarded against such criminal attacks. In explaining why we were not prompted by that claim "to wrestle with the far-reaching proposal that the judiciary give advisory opinions to all who feel aggrieved by what the State does or does not do" (p. 110), we noted the problem involved in delineating the area in which the State should account:
"A private entrepreneur may readily be held for negligent omissions within the chosen ambit of his activity. But the area within which government has the power to act for the public good is almost without limit, and the State has no duty to do everything that might be done. Rather there is a political discretion as to what ought to be done, as to priorities, and as to how much should be raised by taxes or borrowed to that end. If government does act, then, when it acts in a manner short of ordinary prudence, liability could be judged as in the case of a private party. So if a road were constructed of a design imperiling the user, the issue of fault would present no novel problem. But whether a road should have four or six or eight lanes, or there should be dividers, or circles or jughandles for turns, or traffic lights, or traffic policemen, or a speed limit of 50 or 60 miles per hour -- such matters involve discretion and revenue and are committed to the judgment of the legislative and executive branches. As to such matters, the question is whether a judge or jury could review the policy or political decisions involved without in effect taking over the responsibility and power of those other branches." [47 N.J. at 109]
Unlike the situation in Fitzgerald v. Palmer, the claim now before us does invite consideration of the basic question of judicial abstention in tort matters, for here, according to the complaint, the State itself generated the risk of injury by caging a ferocious animal without suitable safeguards despite the manifest danger to persons the exhibit was intended to attract.
It is plainly unjust to refuse relief to persons injured by the wrongful conduct of the State. ...