On appeal from Superior Court, Law Division, Hudson County.
Fritz, Joelson and Petrella. The opinion of the court was delivered by Joelson, J.A.D.
Plaintiff allegedly sustained injuries by reason of a fall in a pothole in a metered parking lot maintained by defendant Parking Authority of the City of Bayonne. He brought action against the Authority and also against Walter Nowicki, chairman of the Authority, and Victor Wozotowicz, Supervisor of the Authority. This is an appeal from the order of the trial court granting summary judgment in favor of all defendants. We affirm as to the judgment in favor of defendant Parking Authority; we reverse as to the judgment in favor of defendants Walter Nowicki and Victor Wozotowicz.
It is undisputed that plaintiff failed to give the public entity a timely notice of claim within 90 days after the accrual of his cause of action, as required by N.J.S.A. 59:8-8.*fn1 It is provided
in N.J.S.A. 59:8-3 that "[n]o action shall be brought against a public entity" unless the claim upon which it is based has been presented in accordance with the provisions of the Tort Claims Act (N.J.S.A. 59:1-1 et seq.). Furthermore, N.J.S.A. 59:8-8 provides that unless the 90-day provision has been complied with, "[t]he claimant shall be forever barred from recovering against a public entity. . . ." Despite this clear and unequivocal language, plaintiff contends that he should not be bound by the 90-day notice requirement, basing this contention on N.J.S.A. 40:60-25.5 which grants immunity to municipalities from liability by virtue of their operation or maintenance of public parking areas, but contains a proviso that a municipality may be liable for the negligence of its agents, servants or employees.
N.J.S.A. 40:60-25.5, relied on by plaintiff and which contains no notice requirement, became effective in 1942 and has not since been expressly repealed. N.J.S.A. 59:8-8, which establishes a notice requirement, is part of the Tort Claims Act which, according to N.J.S.A. 59:14-4, took effect on July 1, 1972. It might be argued that since the Tort Claims Act represents a comprehensive restatement of the law governing the liability of public entities generally, it preempts the field and nullifies N.J.S.A. 40:60-25.5. However, the doctrine of repeal by implication is not favored. N.J. State P.B.A. v. Morristown, 65 N.J. 160, 164 (1974); Brewer v. Porch, 53 N.J. 167, 173 (1969); Swede v. Clifton, 22 N.J. 303, 317 (1956); Henninger v. Bd., 3 N.J. 68, 71 (1949). Even if N.J.S.A. 40:60-25.5 applies to municipal parking authorities as opposed to municipalities generally, there is no reason why that section and the notice requirements of N.J.S.A. 59:8-8 should be regarded as inconsistent. They can and should be read in pari materia, with the result that the latter engrafts notice requirements upon the former. We are, therefore, satisfied that since plaintiff failed to give timely
notice to the public entity, summary judgment in favor of the Parking Authority was properly granted.
We turn now to the question of the summary judgments in favor of defendants Nowicki and Wozotowicz. Although the trial judge did not rule directly on the question of whether N.J.S.A. 59:8-8 requires a 90-day notice be given with regard to public employees as opposed to public entities, that section and N.J.S.A. 59:8-3 clearly are limited to claims against public entities. It was for that reason that Lutz v. Semcer, 126 N.J. Super. 288 (Law Div.1974), held that "the filing of a claim within the 90-day time limit set forth in N.J.S.A. 59:8-8 is not a prerequisite to the maintenance of an action against a public employee, and this action may be maintained against the individual defendants." Id. at 300. We are aware of the fact that Lutz involved an action against a police officer who closed the window of a police car on the finger of a plaintiff while the plaintiff was talking to him. Thus, the court was in that case dealing with an alleged negligent act of commission rather than with negligent omission by an official, as alleged in the case we now review. Nevertheless, no distinction is made by N.J.S.A. 59:8-8 between acts of commission and omission with regard to public employees, who are simply not included at all in the notice requirements of the section. We are not prepared to hold that a public employee who commits active negligence is not entitled to notice, but that an employee who might fail to inspect for and report a dangerous condition, warn the public about the condition, erect safety barriers or otherwise take protective measures is entitled to notice. To so hold would be to indulge in judicial legislation by formulating a category not created by the Legislature as to officials who negligently fail to perform their duties.
Additionally, we must not disregard the fact that before the enactment of the Tort Claims Act, N.J.S.A. 59:1-1 et seq., and even in the heyday of the doctrine of sovereign immunity, it was settled law that public employees were liable for negligence in the performance of their official duties. Florio v. Jersey City,
101 N.J.L. 535 (E. & A. 1925); Suarez v. Dosky, 171 N.J. Super. 1, 8 (App.Div.1979), certif. den. 82 N.J. 300 (1980); Gilday v. ...