# Milstrey v. City of Hackensack

> Supreme Court of New Jersey · February 26, 1951 · 6 N.J. 400

URL: https://www.frixlaw.com/law-library/cases/9736761

## Case

- **Full name:** Clarisse Milstrey and Arnold Milstrey, Plaintiffs-Respondents, v. City of Hackensack and Lester K. Fishbough, Defendants-Appellants
- **Court:** Supreme Court of New Jersey
- **Decided:** February 26, 1951
- **Citations:** 6 N.J. 400; 79 A.2d 37; 1951 N.J. LEXIS 279
- **Precedential status:** Published
- **Opinion:** Dissent by Case
- **Judges:** Heher
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9736761

## Opinion text

Case, J.
(dissenting). . The complaint charged that the defendants, having removed a portion of the sidewalk, negligently and carelessly replaced the same, on January 16, 1947, so out of alignment with the true pavement level as to constitute a danger in its use and a nuisance. There were no amendments. No proof was adduced that when -the sidewalk was replaced it was out of alignment. There is proof that on October 5, 1948, the day of the accident, there was a subsidence or depression and that the replaced pavement was “kind of broken in spots, a.nd one particular spot had quite a hole in it.” A depression was'there before that day; how long, does not appear. There is no proof of earlier breaking or holes. The only proof bearing upon a wrongful choice of materials used in the repair came from one Schweitzer and was admitted, erroneously as I believe, over the strenuous objection of the defendants who urged that whether or not the paving material conformed to' standards was entirely *415 irrelevant to the issue. At the close of plaintiff's case defendants moved for a dismissal, naming as one of the grounds that plaintiff had failed to prove her case.- The court denied the motion upon the reasoning that a defect appearing later, because of the application of a blacktop surface, could be reflected back, in point of liability, to the time of the use of the material; and that could have been a proper ruling if the pleadings had been framed to raise the issue. But I do not consider that irrelevant proof, admitted over objection, can be interpreted as changing the issue. Defendants, on their own case, carefully and convincingly proved that when the repair work was done the hew pavement was thoroughly bound against the adjoining concrete sidewalk and presented a smooth, flush surface in complete alignment therewith. That met the issue. It is true that inasmuch as the repair material was Roadrite, a variety of blacktop, there was proof of the characteristics of that pavement; under the court's ruling it could hardly have been otherwise; but, in view of what had gone before, that ought not to deprive the defendants of their right to a trial of the issue framed by the pleadings.
Even if we assume that the use and effect of the blacktop pavement were in issue, I consider that the plaintiff did not prove her case.
Under the common law there was no liability, except by special statute, on the part of either municipal government or of public offlcer to a civil suit for damages arising out of the negligent performance of a governmental duty, including the failure to keep either bridges or roads in proper repair; an immunity which arose out of ancient precedent and public policy. Cf. Freeholders of Sussex v. Strader, 18 N. J. L. 108 (Sup. Ct. 1840); Livermore v. Board of Freeholders, 31 N. J. L. 507 (E. & A. 1864); Hart v. Freeholders of Union, 57 N. J. L. 90 (Sup. Ct. 1894). A learned and thoroughly documented opinion reviewing the English and American cases, including our own Strader and Livermore cases, is Hill v. Boston, 122 Mass. 344 (Supreme Judicial Court, 1877). The act sued upon in the instant case was in connection with the maintenance of traffic lights, and with the repair of roads, *416 and, so, was a governmental operation. Vickers v. Camden, 122 N. J. L. 14 (E. & A. 1938); Casey v. Bridgewater Township, 107 N. J. L. 163 (E. & A. 1930).
That broad common law immunity has been modified in this State to the extent that although a municipal corporation charged with performance of a public duty is not, in its governmental functions, liable to an individual for neglect to perform or for negligence in performance whereby an indictment would lie, nevertheless, where the municipal corporation had been guilty of active wrongdoing, as distinguished from mere negligence, the corporation should not be immune from liability, for private injury. That principle was applied in such cases as Hart v. Freeholders of Union, supra; Kehoe v. Rutherford, 74 N. J. L. 659 (E. & A. 1907); Ennever v. Bergenfield, 105 N. J. L. 419 (E. & A. 1928), and Allas v. Rumson, 115 N. J. L. 593 (E. & A. 1935). But I do not find that the immunity has been modified as to the employee through whom the municipal corporation accomplishes the fault.
Thus, in its governmental operations, a municipal corporation may not be charged with passive negligence, a failure to do something, but may be charged with liability 'for active wrongdoing. To make practical application: the city could be liable if in making the repairs it placed the new work out of alignment with the old; it would not be liable if the negligence consisted, not of something done in the repairing, but in failure to take care of a condition arising later.
There is little to be gained from an analysis of the general testimony. It is enough to say that without the testimony of Schweitzer, mentioned above, there was no substantial proof that the material used was not proper for the purpose to which it was applied; indeed the remaining proof on the subject was contra that proposition. That witness testified as an expert and the gist of his testimony was that the use of blacktop does not conform to the standard for the repair of concrete sidewalks except for temporary repair, because of the difficulty in applying the proper weight or pressure to obtain compaction “so it would tend to leave openings in there, allow the *417 water to get through under the present sidewalk and probably would tend to unravel somewhat on the edges against the concrete.” The witness knew nothing about the repair work under litigation, he was hot. asked about it and he did not attempt to testify with respect to it,, even by hypothetical question and answer. Cf. Schwartz v. Howard Savings Institution, 117 N. J. L. 180 (E. & A. 1936). His testimony was strictly in the abstract, with no application by him to the facts of the case, and it rested wholly upon two asserted propositions; first, that blacktop, otherwise an acceptable material, could not easily be compacted in a patch, and, second, that • when compaction is not had, it is difficult to bind with the adjoining concrete and water seepage, with the named results, might follow. Passing by the theory advanced by the witness, it does not factually appear that adequate compaction was not had, nor does it appear that any of the results attributed by him to poor compaction here existed. There is no proof that there were openings, at the time of the accident or otherwise, between the blacktop and the concrete, no proof of the seepage of water or that the conditions actually existing resulted from the seepage of water, or that the blacktop unraveled on the edges against the concrete.
Only the choice of material is attacked. That material was admittedly proper for the making of temporary repair, and the only limit placed by any of the testimony upon the period during which it may reasonably be expected to last was four or five years.
The attempt to establish a “standard” was an unsuccessful and spurious resort to a principle that does not fit the ease, as though every human undertaking may be reduced to a simple “standard” or “non-standard” in determining liability. Hone of our decisions holding for liability are on the narrow issue here presented. In Fredericks v. Dover, 125 N. J. L. 288 (E. & A. 1940), the facts included the laying of a metal gutter cover at a dangerous pitch, and in Newman v. Ocean Township, 127 N. J. L. 287 (E. & A. 1941), which perhaps of all our cases comes nearest to this one, the concrete mixture *418 was of inferior quality and there was faulty workmanship in that the curb had been laid without proper foundation, resulting in a condition whereby a portion of the curb “tipped” and struck plaintiff in the leg.
In the absence of any statutory restriction it is for the highway authority to decide what materials are to be used in the construction or repair of highways, and the use of a material which makes a temporary but not a permanent repair is not active wrongdoing. Buckalew v. Freeholders of Middle-sex, 91 N. J. L. 517 (E. & A. 1917). In that case the freeholders were sued upon the theory that the acts constituted an active wrongdoing; and the action arose long after the liability of a governing body for active wrongdoing had been developed. (Hart, supra, 1894; Kehoe, supra, 1906.) The close pertinency of the case is that it was an unsuccessful effort to fasten wrongdoing upon a governing body because, in actually making a repair, they used sand, a material which produced only temporarily satisfactory results, whereas they could, or should, have used cement and so made a measurably permanent job; and some support for plaintifffs case was sought, as here, in the fact that later a more permanent repair was accomplished with concrete. The decision is a complete answer to the argument that once a local authority does something to a road or a sidewalk liability attaches. If there is a variance in the viéw of the common law as expressed in our cases from the views expressed elsewhere, I can only suggest that this.jurisdiction has been developing its own conception of the common law for 175 years and that such a variance may well exist without prejudice to our own decisions.
My conclusion on that phase of the case is that the expert testimony was not sufficiently integrated with the facts to have any effect on the finding, and that therefore no active wrongdoing was proved; that it was within the discretion of the defendants to select the material to be used and that the selection and use of a material not the best do not put them open to suit; that the defendants were clearly not guilty of the only wrong charged against them in the complaint; and that the failure to remedy such irregularity as later developed *419 was not only not complained of but was a passive negligence for which suit does not lie.
Our courts have uniformly protected public bodies and their officers from a mistaken application of the principle of active wrongdoing, cf. Ansbro v. Wallace, 100 N. J. L. 391 (E. & A. 1924); Callan v. Passaic, 104 N. J. L. 643 (E. & A. 1928); Vickers v. Camden, supra; Truhlar v. Borough of East Paterson, 4 N. J. 490, 496 (1950).
Eor the reasons stated I consider that the denials of defendants’ motions to’dismiss, made at the close of plaintiff’s case and at the close of the entire case, were error.
I further suggest that, although the ancient immunity to both municipality and municipal employee no • longer holds as to the municipality where the latter has been guilty of active wrongdoing, our courts have not, as I believe, terminated, and in the public interest ought not to terminate, the immunity of the employee where the wrongdoing is by the municipality itself, for which the municipality is answerable, and the act of the employee is an innocent compliance with his duty to his employer; wherefore it is inconsistent in this case that Eishbough, in addition to the city, should be held liable. We must, of course, distinguish between the employee or officer of a municipal corporation and the employee of a private person, whether individual or corporation (Clark v. Cliffside Park, 110 N. J. L. 589 (E. & A. 1933); Whalen v. Pennsylvania Railroad Company, 73 N. J. L. 192 (Sup. Ct. 1906)), and particularly as to those cases where the responsibility of the private employer is derivative, arising out of the negligence of the employee strictly upon thé theory of respondeat superior. It is the law in most jurisdictions, as here, that a municipal corporation is not held under the rule of respondeat superior for the acts of its officers where the act is in a governmental function, whether the officer receives his authority by statutory law or from the municipality. (See 19 R. C. L., Municipal Corporations, p. 1107, § 390, and cases cited in Notes 17 and 18.)
The city was found guilty of active wrongdoing. That is implicit in the judgment against it. It could not lawfully *420 have been found guilty if Fishbough had acted outside of his authority and committed an independent misfeasance. Fish-bough and Fishbough alone would have been responsible in such a circumstance. Jersey City v. Kiernan, 50 N. J. L. 246, 251 (Sup. Ct. 1888); Florio v. Jersey City, 101 N. J. L. 535 (E. & A. 1925); Condict v. Jersey City, 46 N. J. L. 157 (E. & A. 1884). In general, a municipality is not liable for the acts of its officers done in matters strictly public. U. S. Mortgage Title and Guaranty Co. v. Teaneck Township, 128 N. J. L. 114 (E. & A. 1941). There is nothing to show that Fishbough was acting under a public duty directly imposed by statute upon him as an officer; and the city would not have been liable for a tort committed by him in such case. Allas v. Rumson, supra, p. 596. The complaint alleges that the city committed the tort and that it acted through Fish-bough as its agent; and the exclusion, to which I have just alluded, of other theories for liability bring us to just that result, namely, that the judgment is against the city because of its own act and that Fishbough’s presumed liability arises in that he was the agent of the city in carrying out the latter’s direction. There is the flavor of injustice in holding a city employee responsible for carrying out the policies of the city government in a matter that does not, in any of its phases', involve wantonness, malice, abuse of discretion or excess of authority but is simply an error in judgment by the city in selecting one material rather than another of more enduring quality. The argument that an injured person should not be deprived of recovery, which was the instrumental factor in taking immunity away from the municipality, does not here apply. Liability by the employee is not essential to recovery by the person injured, because the city is liable; and such liability by the employee is not a necessary incident to the law since the act is within those immunities which the common law gave to both municipal corporation and public officer and which the modern cases have taken from the municipal corporation but not, so far as my study of the cases in this jurisdiction has shown, from officers with respect to personal liability for acts of this nature done by them at the behest of the *421 employing municipal corporation. The reasoning given by the Supreme Court of Errors of Connecticut in Wadsworth v. Town of Middletown, 109 A. 246 (1920), on a somewhat different issue is pertinent here:
“■Where the discretion has been exercised erroneously but in good faith through an error of judgment, the public officials should not be required to pay damages for his acts. The affairs of government cannot be conducted with absolute exactitude, and public officials cannot be expected to act in all cases with certain judgment. Timidity and doubt would govern their performance of public duty if they acted in the consciousness that personal liability might follow no matter how closely they followed their best discretion.”
It is not an answer to say that a judgment creditor with two debtors, the city and the employee, will enforce against the former only and not against the latter, or that, if the employee is obliged to pay, the city will reimburse him. That may not happen. This is not a case to which the theory of res ipsa loquitur applies. The plaintiff must prove all the elements of liability. Take as a hypothesis, which is contradicted by no proof, that the governing body, either directly or through its city manager, an official with extensive powers (B. S. 40:82-4) directed that work of such nature, or, specifically, this particular job, should be done with “Type A Roadrite,” and furnished that and no other material for the work. What was Eishbough — or, to make it general, what is any city emplo3ee — to do in such a case? It is not difficult to foresee a development which will not be in the public interest. Will capable men of financial responsibility take public employment if it entails personal liability for acts of that nature? I cannot certify that nowhere in the reports of our courts of last resort is there an instance of a public employee, in parallel circumstances involving a fault by the city itself in a governmental function, being held liable where the governing body, at whose behest the employee acted, is originally liable; but counsel have not cited such a case, the majority opinion has not, and I know of none. I am not, of course, taking the untenable position that a public employee should not be held liable for his own independent wrongs. '
*422 I believe that, on well established public policy, the motion to dismiss should have been granted as to Eishbough.
Whatever the strict law may be on the matters I have discussed, certainly, as it seems to me, the issues and the proofs were such that the duty upon the plaintiff to use ordinary or reasonable care should have been clearly defined to the jury; and that was not done.
Defendants made the following request to charge on the question of contributory negligence:
“A pedestrian on a sidewalk is bound to exercise ordinary care not only to avoid dangerous places known or seen but also those of the existence of which he is ignorant.”
The request was denied. The court charged that the jury ■should determine whether or not the plaintiff was guilty of •contributory negligence which contributed to the happening •of the plaintiff’s injury, and that, if she were, that negligence would bar her recovery; but it did not charge upon what the ■duty of the plaintiff in that respect was except contra as follows;
“A person traveling along a sidewalk has the right to presume, until, of course, the contrary appears to him, to his knowledge, that there is no dangerous impediment in any part of the walk, or, incidentally, the highway. This principle applies to all interferences with the safety of travel arising from temporary uses of sidewalk or highway, that are not normal, and permanent incidents thereof, and it relieves persons passing along the sidewalk or highway from any obligation to look for such interferences with travel.”
The court’s charge must, of course, be understood, and the jury’ must have understood it, as directed toward the facts of this case, not to those of some other ease or to some imaginary happening with which the litigation is not concerned. • That the judge so intended is clear from the record. He had, a few minutes before, during the final argument for dismissal said to counsel:
“The only thing that would prevent her from recovering, it seems to me, would be the assumption of the risk of a known danger; if she knew of the danger, knew it was there, and assumed the risk of going over it, and fell, then she would have no right to recover.”
*423 The request was probably made to overcome the effect of that .statement, erroneous as I believe, and to save the defendants from the harm thereof.
The jury might have found that the only irregularity in the pavement was a subsidence not in excess of one-fourth of an inch. Giving effect to the request and the charge as applied to that possible finding, we have it that the court was asked to charge that plaintiff was bound to use ordinary care to avoid harm from a quarter-inch depression even if she did not actually know -it was there, and the court not only denied that request but charged the opposite, namely, that plaintiff had a right to presume that the minor depression was not there unless she had knowledge that it was, and that she was relieved from any obligation to look for such an interference. By that standard plaintiff, who is not shown to have suffered from any impairment of her faculties, might have shuffled along without lifting her feet, without exercising that ordinary caution which most people train themselves to use subconsciously, and yet recover because she tripped at a slight unevenness.
In Van Pelt v. Sturgis, 102 N. J. L. 708 (E. & A. 1926), the defendant had requested a charge in almost the precise language of the request before us. It was held on appeal that the refusal of the request was not error because the court had charged in effect that “It was the plaintiff’s duty to use such -care as a person of reasonable or ordinary prudence might exercise under like circumstances, which included all the surrounding conditions whether previously known to plaintiff or not,” and so had sufficiently covered the request. So here the court was not obliged to charge in the words of the request but was, I suggest, bound to charge the principle inasmuch .as the request had been made. In Quimby v. Filter, 62 N. J. L. 766 (1898), the Court of Errors and Appeals said:
“Ordinary care is everyone’s duty. I can hardly conceive of a case -where no care at all need be exercised. What is ordinary care will depend upon the circumstances and is for a jury’s determination. The adjudged cases all recognize the necessity for the use of ordinary care while walking on the sidewalk of a public street if recovery is to be had for injury due to the maintenance of a nuisance, and recognize .also that failure to exercise such care may defeat a recovery, although *424 the existence of tlie nuisance and its attendant danger may be unknown to the pedestrian.”
The decision directly held that a charge limiting the pedestrian’s duty to the exercise of care toward the danger which she saw was an emasculation of the defense of contributory negligence and was error. And I think that such is the law in the present case.
Respondent rests upon the statement of this court in Saco v. Hall, 1 N. J. 377, 382 (1949) :
“The traveling public has the right to assume that there is no dangerous impediment or pitfall in any part of it.”
The court did not say, and it is clear that it did not mean to say, that such an assumption relieves a pedestrian or any other user of a public way from exercising any degree of care. The question under consideration was whether the trial court had erred in granting a judgment of nonsuit. The opinion was discussing the duty of the person responsible for the condition of a sidewalk, not the duty of the person using it. The sentence is abstracted from a context that has no relevancy to the present issue. In Durant v. Palmer, 29 N. J. L. 544, 547 (E. & A. 1862), a case of flagrant sidewalk nuisance, the court held that ordinary care is that degree of care which may reasonably be expected from a person in the plaintiff’s position and which is synonymous with reasonable care, and that reasonable care requires that in all cases the precaution be proportionate to the danger of injury and may vary with the circumstances of every case, and added that as a general rule there can be no recovery in such an action when want of ordinary care is proved.
Expressions akin to that used by the court below may be found in such cases as Reilly v. B. S. Janney, Jr. & Co., Inc., 103 N. J. L. 11, 135 A. 66 (Sup. Ct. 1926), where, the defendant had left on the sidewalk a skid or slideway which it had been using in unloading its trucks; Maihehe v. United States Express Company, 86 N. J. L. 586 (E. & A. 1914), where a scaffolding had been suspended eight or ten feet above the street level, and other cases of like nature where there *425 were impediments or pitfalls foreign to a sidewalk or highway as such; Irut nowhere in our decisions do I find equivalent, language with respect to so frequent an incident to a sidewalk as a slight unevenness in the pavement levels or even to pavements which have become cracked or slightly broken. To say that uneven pavements are not a danger to which pedestrians-are frequently exposed is to fail to recognize facts as they are. It is common knowledge that a continuous stretch of perfectly level sidewalk pavement is scarcely to be found except where' the period of installation has not been long enough for the' inevitable ravages of time, weather and use to have had effect.. I express the thought that if what was charged is a correct statement of the duty of a pedestrian with respect to lack .of perfect alignment in a public sidewalk, municipal corporations- and adjoining property owners are in precarious position.. They become, in effect, insurers if there is the least irregularity in the pavement.
I understand the rule to be that a person using a public sidewalk is obliged to exercise the ordinary or reasonable care incident to such an operation, and that such care requires the' precaution to be proportionate to the danger of injury and is-not limited to the dangers which the pedestrian sees. The-only dangerous place about which this case turns was the-irregularity in the sidewalk and the request, of course, had reference to it. In my judgment the refusal of the request was error and the. matter actually charged emphasized the-error.
The decision of the court in all respects mentioned extends the limits of liability of government and of persons, as heretofore determined, in sidewalk cases. For the several reasons-stated I think the judgment below should be reversed.
Mr. Justice Oliphant and Mr. Justice Wachenfeld authorize-me to say that they concur in this dissenting opinion.
For affirmance — Chief Justice Vanderbilt, and JusticesHeher, Burling and Ackerson — 4.
For reversal — Justices Case, Oliphant and Wacheneeld — 3.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9736761. Public record. Not legal advice.