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Darrow v. Hanover Township

Decided: June 7, 1971.

GERALD P. DARROW AND HERMA DARROW, PLAINTIFFS-APPELLANTS,
v.
HANOVER TOWNSHIP, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT, AND THE COUNTY OF MORRIS, DEFENDANT



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

Proctor

[58 NJ Page 411] In Immer v. Risko, 56 N.J. 482, decided July 10, 1970, we abrogated the doctrine of interspousal immunity in automobile negligence cases. Prior to Immer the immunity rule barred negligence actions between spouses. Orr v. Orr, 36 N.J. 236 (1961); Koplik v. C.P. Trucking Corp., 27 N.J. 1 (1958); Kennedy v. Camp, 14 N.J. 390 (1954). Although we applied the new rule permitting such suits to the parties in Immer, we purposely left open the question of whether it should be fully retrospective. The issue was neither briefed nor argued, and it was our belief that the question should not be resolved until it could be considered in a full, adversary hearing. See Note, "Prospective Overruling and Retroactive Application in the Federal Courts," 71 Yale L.J. 907, 951 (1962). Accordingly, after we certified the present case we gave notice to the bar that interested parties might apply to us for certification or to submit briefs and appear as amici curiae. 94 N.J.L.J. 169 (March 11, 1971); 94 N.J.L.J. 204 (March 18, 1971). Although no other cases were certified, numerous parties submitted briefs and appeared at the argument before us as amici curiae.

The present case arose out of an accident in the defendant Hanover Township when an automobile operated by plaintiff Gerald Darrow hit a tree, causing injuries to himself and his wife Herma, who was a passenger at the time. The Darrows brought suit against Hanover Township and the County of Morris, alleging that the tree projected into the road and that there was no warning of the danger. At the pretrial conference plaintiffs voluntarily dismissed their action against the County of Morris.

The accident occurred on April 13, 1967, and the suit was filed on April 14, 1969. (April 13, 1969, was a Sunday.) Our decision in Immer was rendered on July 10, 1970, as noted above, and on September 9, 1970, defendant Township was permitted to file a counterclaim for contribution against plaintiff Gerald Darrow. He answered, raising the defense of interspousal immunity, see Kennedy v. Camp, supra,*fn1 and moved for summary judgment on the counterclaim. The trial court, after hearing oral argument, denied the motion and permitted the counterclaim to stand holding that Immer was retrospective and that interspousal immunity could no longer be pleaded. 112 N.J. Super. 396 (Law Div. 1970). Thereafter, plaintiff Gerald Darrow sought and was granted leave to appeal. Prior to argument in the Appellate Division, we granted certification on our own motion. R. 2:12-1.

Plaintiff Gerald Darrow contends that the trial court erred in applying Immer retrospectively and urges us to reverse and give that decision prospective effect only. It can no longer be doubted that this Court has the power to give a decision solely prospective application; the State and Federal Constitutions are neutral on the question of retrospective and prospective application. Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S. Ct. [58 NJ Page 413] 145, 77 L. Ed. 360 (1932); Arrow Builders Supply Corp. v. Hudson Terrace Apts., 16 N.J. 47 (1954); cf. In re Thompson, 53 N.J. 276, 298-299 (1969); Dalton v. St. Luke's Catholic Church, 27 N.J. 22 (1958). Although we have the power to make our decisions solely prospective, our courts have generally followed the traditional view that the overruling of a judicial decision is retrospective in nature. Dalton v. St. Luke's Catholic Church, supra; Fox v. Snow, 6 N.J. 12, 14 (1950); Ross v. Board of Chosen Freeholders of Hudson County, 90 N.J.L. 522, 527 (E. & A. 1917). But see Willis et al. v. Dept. of Cons. & Ec. Dev., 55 N.J. 534 (1970). We have not done so on the basis of the old common law notion that overruling decisions do not "pretend to make a new law, but to vindicate the old one from misrepresentation * * *." Blackstone's Commentaries ยง 63 (Jones Ed.),*fn2 but rather because we believed that a weighing of

the various policies involved called for retrospectivity. E.g., Dalton v. St. Luke's Catholic Church, supra; Arrow Builders Supply Corp. v. Hudson Terrave Apts., supra.*fn3 Thus, the question involved in this case is whether there are sound policy reasons for limiting our decision in Immer to prospective effect.

Plaintiff urges several reasons for doing so. First, he contends that retrospective application of Immer will result in an undue burden on the court system. While we recognize fully that court congestion may work a substantial prejudice to litigants, we would never exclude from our courts persons having just causes of action on this basis. The court system was designed to serve the needs of the people and it would hardly be fulfilling its purpose if it excluded litigants because of inconvenience to lawyers and judges. As we said in Falzone v. Busch, 45 N.J. 559, 567 (1965) in response to an argument that abrogation of the impact rule in negligence actions would open a "flood of litigations": "* * * the fear of an expansion of litigation should not deter courts from granting relief in meritorious cases; the proper remedy is an expansion of the judicial machinery, not a decrease in the availability of justice."

Next plaintiff contends that Immer should not be given retrospective effect because our decision there was predicated

on the availability of insurance, and prior to January 1, 1967, coverage for "any member of the family of the insured" was excluded from the Standard Family Automobile Policy in New Jersey; consequently, allowing recovery for interspousal torts prior to that date would not further the purpose of Immer to place the risk of loss on insurers so as not to disturb the spousal relationship. We cannot accept the argument. While the presence of insurance was an important factor in our decision in Immer, we never held or meant to imply that the absence of insurance would be a bar to suits between spouses. In any event, it is not contended that the exclusion clause is involved in the present case, and if it were, there would be serious doubts as to its validity. See Kish v. Motor Club of America Ins. Co., 108 N.J. Super. 405 (App. Div. 1970), certif. denied 55 N.J. 595 (1970). See also State Farm Mut. Auto. Ins. Co. v. Travelers Ins. Co., 57 N.J. 174 (1970); Gerhardt v. Continental Ins. Cos., 48 N.J. 291 (1966); Allen v. Metropolitan Life Ins. Co., 44 N.J. 294 (1965); but see Goller v. White, 20 Wis. 2d 402, 122 N.W. 2d 193 (1963). See generally, Keeton, "Insurance Law Rights at Variance with Policy Provisions," 83 Harv. L. Rev. 961 (1970).

Although we cannot agree with the above arguments in favor of prospectivity, we find persuasive appellants' main point -- that there has been justifiable reliance on our earlier decisions upholding interspousal immunity. It is, of course, true that reliance has very little place in the field of torts so far as it affects the negligence itself; persons do not generally regulate their conduct because they believe they will or will not be liable in negligence. See Smith v. Brennan, 31 N.J. 353, 361 (1960); Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E. 2d 89 (1959), cert. denied 362 U.S. 968, 80 S. Ct. 955, 4 L. Ed. 2d 900 (1960). This is particularly true in ...


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