Leonard, Seidman and Bischoff. The opinion of the court was delivered by Seidman, J.A.D.
This is an appeal from an order granting summary judgment in favor of defendant municipality and dismissing plaintiff's personal injury, negligence action.
The facts are essentially uncontroverted. Plaintiff's husband, a part-time police officer employed by the Borough of Magnolia, was on duty March 12, 1973. He went home for dinner, as he was permitted to do, and was about to return to work when his wife called his attention to "something wrong" with his service revolver. As he withdrew the weapon from its holster it discharged, the bullet striking plaintiff in the face and causing a serious injury.
Plaintiff filed a complaint against the borough seeking damages for the injuries she sustained. She alleged that "[d]efendant BOROUGH of MAGNOLIA was negligent in its trainings, instruction, supply of equipment and otherwise generally negligent in its own right, and further that it is subject to vicarious liability due to the negligence of the said Raymond J. Steward." Defendant's answer denied
negligence, charged plaintiff with contributory negligence, and claimed immunity from liability by reason of the Tort Claims Act (N.J.S.A. 59:1-1 et seq.).
The trial judge held on the motion for summary judgment that since interspousal immunity existed, the municipality could not be liable under the Tort Claims Act. He did not deal in his oral opinion with the allegations of direct negligence on the part of the borough.
We should comment at the outset on the manner in which the trial judge's apparent oversight with respect to the latter issue was brought to our attention. Plaintiff's counsel "represented" in his brief that the trial judge met subsequently in chambers with both counsel and indicated that he intended to dismiss the allegations of direct negligence because the plaintiff failed to produce an affidavit from an expert in opposition to the defendant's motion for summary judgment. While we have no reason to doubt the accuracy of the representation, which is not disputed by opposing counsel, reference should not be made to matters outside the record. The attorneys could have stipulated to what occurred after the determination of the motion. Or, preferably, the trial judge should have been requested to supplement his opinion for the record, either orally or in writing, in view of the requirement on a motion for summary judgment that the court find the facts and state its conclusions. R. 4:46-2.
Plaintiff contends on appeal that (1) she should not be barred from recovery because of the interspousal immunity concept, (2) the application of the doctrine violates the equal protection clause of the 14th Amendment, and (3) summary judgment was erroneously entered on her direct negligence claim since the pleadings and interrogatories presented genuine issues of material fact.
The equal protection argument, advanced for the first time on appeal, is rejected. We are not bound to consider constitutional questions not raised below. Roberts Elec., Inc., v. Foundations & Excavations, Inc., 5 N.J. 426, 429
As for the interspousal immunity issue, we are urged to "take the next step hinted at" in Immer v. Risko, 56 N.J. 482 (1970), and abolish immunity for negligently inflicted injuries in nonmotor vehicle situations. This is beyond our power.
We have seen in recent years a steady retreat from common law immunities from liability. In the area of personal torts arising out of the negligent operation of automobiles, the rule of interspousal immunity was abandoned in Immer v. Risko, supra, but the court left to future decisions the question of what other claims should be entertained 56 N.J. at 495. The current state of the law on the subject is thoroughly reviewed in Small v. ...