Plaintiff tripped and fell in 1977 on an uneven public sidewalk and brought this negligence action to recover for her injuries. Defendants Palmer and Gerhard owned the abutting property which is located in defendant Township of Millburn. All defendants move for summary judgment.
As stated in her answer to an interrogatory, plaintiff's theory of recovery is that defendants were negligent in that they "failed to maintain, supervise and inspect the sidewalk and allowed same to remain in a state of disrepair causing a dangerous and hazardous tripping condition." No evidence has been presented that any defendant or predecessor in title actively did anything to bring about the condition complained of.
Were I to apply recognized common-law principles, I would grant both motions. The public sidewalk and street constitute the public way, ordinarily an easement over the property of the abutting property owner. The duty of maintaining the safety of the sidewalk is on the public entity, in this case Millburn; there is no duty on the abutting property owner unless he or a specified predecessor in title negligently constructed or repaired the sidewalk or used it in a way that rendered it unsafe. Yanhko v. Fane , 70 N.J. 528, 533-534 (1976). The public entity's duty at common law was nullified by a shield of sovereign immunity which absolutely protected the State and protected counties and municipalities except when their "active wrongdoing" created the hazard. Milstrey v. Hackensack , 6 N.J. 400 (1951).
These principles defeat plaintiff's claim against the abutting property owners Palmer and Gerhard so their motion must be granted. Yanhko v. Fane, supra. However, expressly left unresolved in Yanhko and raised by Millburn's motion is the effect the Tort Claims Act, N.J.S.A. 59:1-1 et seq. may have in reshaping sovereign immunity so as to expose a municipality to liability for failing to repair a dangerous public sidewalk.
The Tort Claims Act is the Legislature's response to Willis v. Conservation & Econ. Develop. Dep't , 55 N.J. 534 (1970), which
declared an end to the common-law immunity the State enjoyed for no reason other than its status as sovereign. Simultaneously, Willis extended to the State the protection of categorical common-law immunities which for reasons of sound public policy had been made available to counties and municipalities. Without limiting the ultimate development of those immunities, the court emphasized that "the State will not be held liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial cast, nor generally with respect to decisions calling for the exercise of official judgment or discretion." Id. at 540-541.
Willis proceeded from an assumption of liability subject to any categorical immunity. By contrast, the act proceeds from an assumption of immunity subject to any liability provided in the act. English v. Newark Housing Auth. , 138 N.J. Super. 425, 428-29 (App.Div.1976). However, the act then doubles back somewhat by subjecting any liability to the terms of any relevant categorical immunity provided in the act or, if not in the act, as may be developed at common law. This two-step approach is set out in N.J.S.A. 59:2-1 which reads in pertinent part:
a. Except as otherwise provided by this act, a public entity is not liable for an injury . . . .
b. Any liability of a public entity established by this act is subject to any immunity of the public entity*fn1 . . . .
An exception cannot survive being made subject to its own rule. Therefore, the words "any immunity" in (b) must refer to any statutory or common-law categorical immunity, not the former broad ...