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Primo v. City of Bridgeton

Decided: September 21, 1978.

PAULINE E. PRIMO AND ARNOLD PRIMO, PLAINTIFFS,
v.
CITY OF BRIDGETON, BRIDGETON RECREATION COMMISSION AND PUBLIC PARK COMMISSION OF THE CITY OF BRIDGETON, DEFENDANTS



Miller, J.c.c. (temporarily assigned).

Miller

This motion for summary judgment requires the court to construe for the first time N.J.S.A. 5:3-30, a statute originally enacted in 1906 providing tort immunity for persons maintaining or operating a public playground for "philanthropic purposes." The Landowners Liability Act, N.J.S.A. 2A:42A-2 et seq. , is likewise involved.

Plaintiff allegedly sustained personal injuries while using a slide in a playground located within the Bridgeton City Park. The park is municipally-owned and maintained, and the playground is open to the public without charge. Plaintiff's claims are based on the alleged negligence of defendant in the construction, design, installation and maintenance of the slide.

Defendant's first contention is that the municipality is immune from suit by virtue of N.J.S.A. 5:3-30 as applied through § 59:2-1(b) of the New Jersey Tort Claims Act. N.J.S.A. 5:3-30 provides:

No person maintaining or operating a playground for public use acquired or maintained for philanthropic purposes and not for profit, shall be liable in damages for accidents happening within the bounds of such playground.

The statute, enacted in 1906, has never been judicially construed. Furthermore, there is a dearth of legislative history to aid in its construction. Given the statute's use of the limiting terms "no person" and "for philanthropic purpose" in light of the existing sovereign immunity at the time of its enactment, it is reasonable to conclude that it was the intent of the Legislature for the statute to directly apply only to individuals. In Bisbing v. Asbury Park , 80 N.J.L. 416

(E. & A. 1910), the court, discussing the history of municipal immunity in New Jersey, stated:

It is not controverted and could not well be under the law as expounded in this state, since the year 1840, that in the absence of statute, an action will not lie against a municipal corporation at the instance of an individual who has sustained special damage in consequence of the neglect of such corporation in the performance of a public duty. Freeholders of Sussex v. Strader , 3 Harr. 108; Livermore v. Freeholders , 5 Dutcher 245; aff'd 2 Vroom 507; Pray v. Jersey City , 3 Id. 394; Wild v. Patterson , 18 Id. 406; Carter v. Rahway , 26 Id. 77; aff'd 28 Id. 196; Paterson v. Erie Railroad , 49 Id. 592 [at 418]

Given the then existing general municipal immunity, it further supports the assumption that the statute was intended to apply only to individuals and not municipalities.

This, however, does not end the inquiry, since § 59:2-1(b) of the New Jersey Tort Claims Act provides that any liability of the public entity is subject to any defenses that would be available to the public entity if it were a private person. Therefore it is necessary to determine if the municipality's ownership would comply with N.J.S.A. 5:3-30 if it were a private person.

Under the facts of the case at bar, the municipality was maintaining and operating a playground for public use. The municipality was not operating the playground or the park for profit and there was no fee charged for the use of the playground. The issue then narrows to whether a municipality in operating a playground within a park is doing so for "philanthropic purposes." That the term "philanthropic purposes" is not rigidly defined is best illustrated by the opinion of the New York Court of Appeals in Westchester County, etc. v. Mengel , 292 N.Y. 121, 54 N.E. 2d 329 (1944):

The terms "philanthropic" and "eleemosynary" are not technical words of art or words which have been defined by statute or which have acquired a rigid meaning by judicial construction. They describe a field without ...


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