Gascoyne, J.c.c., Temporarily Assigned.
Plaintiff instituted a wrongful death action alleging that on August 31, 1971, at about 11:17 P.M., Hamilton B. Maule, Jr. (Maule), age 23, was operating his vehicle in a westerly direction on Route 46 in the vicinity of Edwards Road, Parsippany-Troy Hills, New Jersey. She further alleged that Conduit and Foundation Corporation (Conduit) was repairing Route 46 at this point and maintained the construction in such negligent manner as to cause the death of Maule.
By leave of court an amended complaint was filed joining the State of New Jersey and the Department of Transportation of the State of New Jersey, both of whom will hereinafter be referred to as the State. The State moved for summary judgment, contending that since the cause of action arose prior to July 1, 1972, the effective date of the
New Jersey Tort Claims Act (N.J.S.A. 59:1-1 et seq.), the doctrine of soverign immunity is applicable. Both plaintiff and Conduit contended that since the cause of action antedated Willis v. Dept. of Conservation and Economic Development , 55 N.J. 534 (1970), the State is liable to respond in tort. The court must then resolve whether the tort immunity is or is not applicable in the hiatus between Willis and July 1, 1972. Since there are no reported cases determining this problem, and since it is a recurring problem, it may be advisable to examine the situation in depth.
Over the years our courts have whittled away the doctrine of sovereign immunity as applied to political subdivisions, Milstrey v. Hackensack , 6 N.J. 400 (1951); Kress v. Newark , 8 N.J. 562 (1952); Hartman v. Brigantine , 42 N.J. Super. 247 (App. Div. 1956), aff'd 23 N.J. 530 (1957); Schwartz v. Stockton , 32 N.J. 141 (1960); McAndrew v. Mularchuk , 33 N.J. 172 (1960); Peer v. Newark , 71 N.J. Super. 12 (App. Div. 1961), certif. den. 36 N.J. 300 (1962); Hayden v. Curley , 34 N.J. 420 (1961); Goldberg v. Housing Authority, Newark , 38 N.J. 578 (1962); Amelchenko v. Freehold , 42 N.J. 541 (1964); Titus v. Lindberg , 49 N.J. 66 (1967); B.W. King, Inc. v. West New York , 49 N.J. 318 (1967); Jackson v. Hankinson , 51 N.J. 230 (1968); Bergen v. Koppenal , 52 N.J. 478 (1968); Kent v. Hudson County , 102 N.J. Super. 208 (App. Div. 1968), aff'd 53 N.J. 546 (1969), and to certain autonomous arms of the State, Taylor v. New Jersey Highway Authority , 22 N.J. 454 (1956). The judiciary steadfastly refused to accept tort litigation directly against the State. Fitzgerald v. Palmer , 47 N.J. 106 (1966). The shield against civil liability continued unabated until a chink was put in the armor by P.T.&L. Constr. Co. v. Comm'r of Transportation , 55 N.J. 341 (1970), wherein our Supreme Court held that immunity in contract liability should be abrogated. The State was held liable for contracts made by it even though the court recognized that an appropriation effecting such judgments would be the sole jurisdiction of the Legislature.
Chronologically, Willis, supra , followed. There an infant was injured by a bear which had been caged in a New Jersey State Park. The court said:
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. No one seems to defend that refusal as fair. There has been a steady movement away from immunity * * *. [at 537, 538]
In response to this judicial pronouncement the Legislature enacted L. 1970, c. 98 (N.J.S.A. 52:4A-1), which precluded civil liability not based on constitutional grounds until July 1, 1971. Subsequent litigation in the P.T.&L. case occurred and the trial court dismissed the case prior to decision on the merits, on the ground of the aforementioned legislation. The Supreme Court certified the matter before argument in the Appellate Division. In a letter to the court the Attorney General conceded that this interim legislation "was designed * * * to give both the executive and legislative branches the opportunity to study the problems resulting from the P.T.&L. and Willis decisions without any prejudice to parties who might, during the intervening period, continue to bring their claims before the Subcommittee on Claims," P.T.&L. Constr. Co. v. Comm'r of Transportation , 57 N.J. 439, 441 (1971). The court affirmed "without prejudice, however, to such further judicial proceedings by plaintiff as may become appropriate as a result of legislative action or in action before July 1, 1971" (at 441).
N.J.S.A. 52:4A-1 (L. 1970, c. 98 § 1), effective June 15, 1970, was amended by L. 1971, c. 187, § 1, effective June 2, 1971, precluding any action in tort or contract for recovery or money damages where the cause of action occurred ...