author: Per Curiam. Fritz, J. A. D.

text:
    CHARLENE DOBBINS, INFANT BY HER GUARDIAN AD LITEM, PAULINE DOBBINS WHITNEY AND PAULINE DOBBINS WHITNEY, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS, v. BOARD OF EDUCATION OF HENRY HUDSON REGIONAL HIGH SCHOOL, DEFENDANT-APPELLANT, AND BETTY KIMBER, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued May 14, 1973
    Decided May 24, 1974.

      Before Judges Fritz, Lynch and Trautwein.

      Mr. John E. Riehl argued for appellant (Messrs. Wolff & Britt, attorneys, Mr. Roy F. Britt on the brief).

      Mr. Philip G. Auerbach argued for respondents (Messrs. Drazin, Warshaw, Auerbach and Rudnick, attorneys).
   Per Curiam.

On November 3, 1967 Charlene Dobbins (Charlene), a 16-year-old junior at Henry Hudson Regional High School, was injured when she fell during gym class. The class commenced indoors with physical fitness tests and concluded its last several minutes outdoors under the supervision of its teacher, defendant Betty Kimber (Kimber). Miss Kimber instructed the class, in groups of five to eight, to run on a macadam driveway around a grass island located in a parking lot. There was conflict in the testimony as to whether the activity was actually a race and whether Kimber was timing the girls with a stopwatch. The length of time to run the course was estimated to b^ from a minute to a minute and a half. Charlene, in one of the last groups to run the designated course, testified that she slipped on loose gravel or pebbles at a point where the macadam declined. She fell to the pavement and sustained serious injuries to her knee.

The complaint was in four counts. The first and third counts sought judgments in favor of the infant plaintiff. The second and fourth counts sought judgment in favor of her mother, who sued per quod. The target of the first count was the Board of Education of Henry Hudson Regional High School (Board). It was contended in this count that the Board was negligent in that it and its agents, servants and employees

* * * so carelessly and negligently conducted said gymnastic activities that they called upon and directed the infant plaintiff herein to do and perform certain activities in an area poorly constructed for the intended use and carelessly and negligently failed to properly supervise and control said activities and further failed to provide a safe place for participation in gymnastic activities by students and were negligent in such other and further respects as shall be shown at the time of trial.

The third count sought a judgment against Kimber, the gym teacher, on the grounds of negligence wherein it was contended that she

* * * so carelessly and negligently conducted said gymnastic activities that she called and directed infant plaintiff herein to exercise in an area poorly constructed for the intended use and carelessly and negligently failed to properly supervise and control said activities and further failed to provide a safe place for participation in gymnastic activities by students and was negligent in such other and further respects as shall be shown at the time of trial.

We note that the Superintendent of Schools (who was acting as Principal at the school) was not joined as a defendant.

In response to special interrogatories, the six man jury brought in a unanimous verdict against the Board, a verdict of no cause for action in favor of Kimber by a vote of 5 to 1, and a damage verdict of $25,000 against the Board by a vote of 5 to l. Defendant Board appeals from the judgment entered against it. Plaintiffs do not appeal from the judgment in favor of defendant Kimber.

The trial court, on its own motion, removed the question of contributory negligence from the jury’s consideration. The validity of that action is one of the issues before us. But the crucial question springs from the court’s denial of defendant Board’s motion for dismissal of the complaint on the ground that N. J. S. A. 18A:20-35 barred recovery against it. That statute (in effect at the time of the accident and since repealed) read as follows:

Liability for injury to person from, use of public grounds and buildings.
No school district shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding.

It is incontrovertible that the injury to the infant plaintiff arose from the use of the school grounds. Indeed, in their brief, plaintiffs concede that if their claim is bottomed on a defect in design, construction, or maintenance of school property, the immunity statute applies. However, they assert that, when their claim “makes reference” to an “activity” being conducted on the property, the immunity statute is not a bar, citing Estelle v. Bd. of Ed., Red Bank, 26 N. J. Super. 9 (App. Div. 1953), modified on other grounds 14 N. J. 256 (1954). In that case the Appellate Division explored the question as to what the Legislature meant by the statutory language “injury from the use” of school property. The court cited several cases where the statute was applied so as to bar a claim. Falcone v. Bd. Education, Newark, 17 N. J. Misc. 75, 4 A. 2d 687 (C. P. 1939) (school girl hurt by a falling partition in washroom); Kane v. Board of Education of Montclair, 20 N. J. Misc. 7, 23 A. 2d 277 (Sup. Ct. 1941) (plaintiff fell down stairs which the Board had negligently failed to light); and see Thompson v. Bd. of Ed., Millville, 20 N. J. Super. 419 (App. Div. 1952), aff’d 11 N. J. 207 (1953) (plaintiff slipped on highly polished high school floor). See also Terranella v. Union Bldg, and Construction Co., 3 N. J. 443, 447 (1950) (child killed while playing with heavy concrete pipes on public playground). .And see application of the companion statute (N. J. S. A. 40:9-2) which granted-immunity to counties and municipalities for injuries “from the use” of public lands and buildings: Fahey v. City of Jersey City, 52 N. J. 103 (1968) (falls in playground areas of public parks); Schwartz v. Stockton, 32 N. J. 141 (1960) (fall in borough hall); Zapf v. Bd. of Chosen Freeholders, Middlesex County, 87 N. J. Super. 426 (App. Div.), certif. den. 45 N. J. 586 (1965) (fall on wet floor in courthouse); Doerr v. Newark, 128 N. J. L. 491 (Sup. Ct. 1942) (fall in City Hall as a result of negligent maintenance of the premises).

In Estelle, the court said:

When does the injury result from the use of the building? Where the alleged cause of injury was negligence in waxing the floor or failure to light the stairway or keep the washroom partition in good repair, the statute was deemed a protection. Let us say that the injury springs from the use, if it is caused by any defect in the design, construction, or maintenance of the structure, but not if it arises from activities carried on there ■ — ■ the x-ray operations. This is a very tentative classification, but it suffices for the present case. [Emphasis added],

While plaintiffs here disavow any claim that they charged defective maintenance of the parking lot, nevertheless the fact is that the injuries to the infant plaintiff, if her allegations are true, were caused by a defect in the maintenance of the parking lot. The statute therefore bars recovery against the board.

However, plaintiffs, citing Titus v. Lindberg, 49 N. J. 66 (1967), assert that the Board was liable for failure to properly supervise the area. But such lack of proper supervision was rested in the alleged default by defendant Kimber, the teacher in whose trust the students were placed. And she was found to be free of negligence by the jury. Therefore, no negligence, through her, can be imputed to defend Board.

There is some suggestion in the record ■ — ■ though no competent proof — that the Supe,rintendent of Schools was negligent in failing to reasonably safeguard the students in the use of the driveway and that his negligence is imputable to the defendant Board. There is no evidence that the Superintendent directed that the running be done on the driveway or that he knew that there was gravel on it which rendered it unsafe. Even if that were not so, in our view, the immunity statute would still bar recovery against the Board. The test under the statute is not what negligence caused the injury but whether the injury arose from the use of the property. That is what the statute says. Thus the cases of Titus v. Lindberg, supra, and Jackson v. Hankinson and Bd. of Ed. of New Shrewsbury, 51 N. J. 230 (1968), are inapposite here. There the injuries did not arise from the use of school property. By no stretching of language or logic can it be said that the injuries caused by negligently tossed paper clips arose “from the use” of the school property. In neither case was the immunity statute mentioned or implicated.

But even if we divert our attention from the statute to alleged negligent supervision of the Superintendent, his duty or any violation thereof would be no different from that of the teacher who conducted the running exercises in the driveway. Since the jury found the teacher free from negligence it would be inconsistent to impute liability to the Board for the Superintendent’s similar actions or failure to act. Further, any negligence of the Superintendent could only be imputed to the Board on principles of respondeat superior. That doctrine was not charged by the trial judge and there was no request that it be charged. Therefore liability of the Board cannot be predicated upon a theory that was not in the case.

We understand the dissent to interpret the immunity statute as applying only when the school property involved is being put to its “ordinary” use and that it does not apply, as the dissent says, when it is “being used for a purpose other than that for which it was primarily designed.” This stress on the “ordinary” use of the school premises is not, in our judgment, a valid construction of the statute. It is not justified by the statutory language. Indeed one would ¡have to insert the word “ordinary” as modifying “use” to warrant such interpretation. We have no more right to make such insertion than the court had the right to insert the word “public” as modifying “use” in Schwartz v. Stockton, supra, 32 N. J. at 153. To so construe the statute as meaning “ordinary” use amounts to judicial legislation, a function forbidden to us, as clearly set forth specifically as to this very statute in Thompson v. Board of Ed., Millville, supra. As in Thompson, we consider the words of the statute to bo free of ambiguity or obscurity, clear and understandable, with the evident purpose of non-liability on the part of the Boards of Education under these circumstances. 20 N. J. Super. at 431.

Nor do we hold, as the dissent suggests, that we are willing to “confer immunity any time an accident occurs upon public property.” Needless to say in both Titus and Jackson, the accidents occurred “upon” public property but, as we have said above, in neither case is the immunity statute implicated, because the accidents did not occur “from the use” of the property.

The dissent would likewise analogize the Board’s duty to that of a shopkeeper to his customers to keep his premises reasonably safe for their purposes. It argues that if a shopkeeper owes such a duty to his customers a school board should have no less a duty. True, it may have been the part of wisdom to so provide. Indeed in applying its wisdom the Legislature later repealed the statute (L. 1972, c. 45, § 59:12 — 2), but at the time of this accident it was in effect. As was said by the Supreme Court, speaking through Justice Hall in Schwartz v. Stockton, supra, concerning the immunity statute then applicable to counties and municipalities, N. J. S. A. 40:9-2:

It must be recognized, however, that here we are concerned with an explicit legislative declaration of public policy and not with a common-law principle. Our duty, therefore, in determining applicability in a particular situation, is to give effect to the statutory command to the full extent of the lawmakers’ intent as we ascertain it, regardless of any view of the social desirability of the legislation. [32 N. J. at 148],

So, too, here. It is not for us to consider the statute as repealed before the Legislature took that action, nor is it within our power to hold it inapplicable when it was in fact in force.

As said in Fahey v. City of Jersey City, supra:

To deny recompense to children injured on municipal playgrounds by reason of the nature or condition of the grounds may be a harsh result, but the result is dictated by R. S. 40:9-2. The amelioration of this situation must therefore come from the legislative branch. [52 N. J. at 109].

Eor the foregoing reasons we reverse the judgment in favor of the plaintiff and direct that judgment be entered in favor of defendant Board of Education.

Because of what we have said above it is unnecessarj’ to consider defendant Board’s further contention on appeal to the effect that the trial court erred in striking the defense of contributory negligence. Nevertheless, because of the possibility of further review, we state that we agree with the Board’s contention. There was sufficient evidence to submit the issue of contributory negligence on the part of this 16 year old plaintiff to the jury.

Fritz, J. A. D.

(dissenting). Since the issue upon which the majority rests its reversal of the trial court is a narrow legal one, I restrain from supplementing the facts as they are viewed and commented upon by my brethren. The only issue of real moment in which we are in apparent disagreement is whether the immunity then provided by N. J. S. A. 18A :20-35 was available to defendant Board.

As narrow as this issue appears, and as succinctly as it may be stated, it requires a search for legislative intent. So I am of the judgment that the bland statement by the majority, “The test under the statute is not what negligence caused the injury but whether the injury arose from the use of the property,” at worst oversimplifies the problem and begs the issue, and at best represents a satisfaction, which I do not share, that the word “use” is the alpha and the omega of that which the legislature intended. This court has already said, with respect to the statute, “It is not entirely clear what the Legislature meant by ‘injury from the use’ of a public building.” Estelle v. Bd. of Ed., Red Bank, 26 N. J. Super. 9 (App. Div. 1953), modified on other grounds 14 N. J. 256 (1954). I have no doubt at all that were the Board intentionally and maliciously to hurt someone on its property with something like a bear trap, or to induce a known nonswimmer to jump into a ten-foot deep swimming pool during a school class, we would be quick to declare that it was not the intent of the legislature to immunize against responsibility for such activity, even though the premises, were being “used” by the injured persons.

A search for legislative intent often reasonably starts with an attempt to divine what situation the legislature meant to remedy, what evil to overcome. Brewer v. Porch, 53 N. J. 167, 174 (1969). Accordingly, I believe that legislative intent in the enactment of the statute with which we are concerned cannot be intelligently considered without some regard for the duty or duties of the Board. The exculpatory statute would be unnecessary were there not a duty for the breach of which an action might be maintainable absent the statute. There is a presumption against useless legislation. Magierowski v. Buckley, 39 N. J. Super. 534, 554 (App. Div. 1956).

Exploration of Board involvement from the standpoint of its duty to those who come upon its property suggests to me that with regard to the parking lot, the Board’s duty (irrespective of statute, for the moment) cannot be unified or consolidated into one standard for all. Absent the statute, liability would unquestionably exist for damage suffered by those who were invited, came upon the parking lot to park, and were injured from negligence in the construction or maintenance of the parking lot. Bates v. Valley Fair Enterprises, Inc., 86 N. J. Super. 1, 6 App. Div. 1964). I agree entirely with the majority that the statute was intended to protect the Board from liability thus imposed.

The duty owed to students by the Board is a different duty (leaving aside the parking of cars by students, a situation in no way involved here). It is “well-recognized in our State and elsewhere” that a Board owes at least the duty to “exercise reasonable supervisory care for the safety of students.” Titus v. Lindberg, 49 N. J. 66, 73 (1967), and that it is accountable for injuries resulting from failure properly to discharge that duty. Ibid. Performance of this duty — said to include, as well, the duty “to take reasonable precautions for [the student’s] safety and well-being” — is to be measured by “ordinary principles of negligence.” Jackson v. Hankinson and Bd. of Ed. of New Shrewsbury, 51 N. J. 230, 234, 235 (1968). I believe this duty to embrace as well as obligation to provide a safe place to learn, and the employment of the care of the reasonable and prudent person in this regard. Certainly if a shopkeeper owes the duty to keep the premises to which his customers come reasonably safe for their purposes (Wollerman v. Grand Union Stores, Inc., 47 N. J. 426 (1966); Krackomberger v. Vornado, Inc., 119 N. J. Super. 380 (App. Div. 1972)), a school board might be expected to do the same for the students who, for the most part, have no choice as to whether they attend school or not. As noted in Jackson, supra, “the relationship between the child and the school authorities is not a voluntary one but is compelled by law.” (51 N. J. at 235.) That in such circumstances the “supervisory” duty of the Board extends at least to the perimeters here suggested seems to me beyond any question. Cf. Titus, supra.

The question is not whether such a duty exists. We know that such a duty exists because of the respectable precedent cited (although there ma,y still be open ends with regard to the boundaries of the duty). The question really is whether the statute limits or immunizes against liability for breach of this duty in the same manner that we agree it minimizes against liability when the public grounds, buildings or structures are being used in the manner and for the purpose for which they were designed.

Nothing in the statute so suggests.

The proposition that this dissent contrives judicial legislation is only meritorious to those willing to accept the expansive definition of “use” forwarded by the majority, who give lip service to Estelle, supra, but disregard its crystal clear caveat as to the meaning of that word. Judicial legislation can as readily be charged to the majority in its apparent willingness to confer immunity any time an accident occurs upon public property. Were I to accept the position of the majority, related in terms of a gymnasium accident in a parking lot, I could not conceive of an accident occurring on public grounds that did not in some manner entail their “use.”

I dissent because I am certain that the legislature did not intend such a far reach. Had they intended to confer immunity to the Board in all cases involving activities in or upon public grounds, buildings or structures simply because of the locale of the occurrence, I think they would have said so more clearly. This is the sense of Estelle where the nature of the activity and its relationship to the purpose of the public structure is determinative. It is to be seen that in only one'of the cases cited in Estelle and set forth by the majority and in none of the other “companion statute” cases cited by the majority was there evidence that the facility was being used for a purpose other than that for which it was primarily designed. The sole exception is in Falcone v. Board of Education, 17 N. J. Misc. 75, 4 A. 2d 687 (Com. Pl. 1939), a case which preceded Estelle by fourteen years, was not reviewed on appeal, and which, most significantly, involved voluntary activities by the injured party which were not required either by another party or in order to use the facility. I am persuaded that reliance by the majority upon the fact that “the injuries to the infant plaintiff * * * were caused by a defect in the maintenance of the parking lot” is insufficient to avoid the holding of Estelle, where the causative factor in terms of locale yielded to the nature of the activity.

Esoteric, and concededly primarily semantic arguments could be fabricated to support the position. Eor instance, it could be argued that the injury here does not result from the “use” of the premises, but rather from the failure of the Board to insist upon the use of a different and safe place. No statute immunizes from this breach of duty. But I think this would be recourse to sophistry. The precise question is: Did N. J. S. A. 18A:30-35 provide immunity from liability for the Board’s breach of its duty to provide a safe place to learn? I would answer this in the negative.

Such a disposition, while derived wholly from legislative intent, is also consistent with a trend, based on sound social policy, acknowledged in Jackson, supra, 51 N. J. at 235, where the following appears:

* * * And although there has thus far been no express and complete disavowal of active wrongdoing terminology, there has been a shift towards frank recognition that municipal entities, along with all others, should justly be held accountable for injuries resulting from their tortions acts and omissions under ordinary principles of negligence, except, as a matter of policy, in situations involving so-called discretionary determinations and the like, recently dealt with in Amelchenko v. Freehold Borough, 42 N. J. 541, pp. 549-550 (1964), Hoy v. Capelli, 48 N. J. 81, 87-91 (1966) and Visidor Corp. v. Borough of Cliffside Park, 48 N. J. 214, pp. 220-221 (1966), cert. denied, 386 U. S. 972, 87 S. Ct. 1166, 18 L. Ed. 2d 132 (1967). See B. W. King, Inc. v. Town of West New York, 49 N. J. 318, pp. 324-325 (1967); Coleman v. Edison Tp., 95 N. J. Super. 600, 605 (App. Div. 1967).

I turn to whether the pleadings and proof in the case were sufficient to sustain a verdict against the Board upon the rule of law I support, and whether the charge of the court was competent to instruct the jury in this regard.

At the outset, I would obviate any suggestion that inculpation of the Board is a verdict inconsistent with exculpation of the teacher. The jury may well have believed that in the situation wdiere they could have found on the evidence that the superintendent knew of the practice of using the parking lot as a gymnasium or athletic field, his silence in circumstances known to both him and the teacher was tantamount to an instruction to continue this long time practice, and that the teacher, therefore, conformed to the standard of reasonable and prudent conduct.

As a matter of fact, the case was submitted to the jury only on theories of independent negligence, rather than vicarious liability, for as the majority points out, respondeat superior was not even charged. In passing, I observe that this omission saves concern as to whether the verdict might be susceptible to a claim of inconsistency based on an inability to determine whether it was properly predicated on independent negligence of the Board or improperly predicated upon vicarious liability for the teacher’s actions under the doctrine of respondeat superior. Cf. Anderson v. Modica, 4 N. J. 383, 393-395 (1950). A theory of vicarious liability was not available to the jury.

Both the pleadings and the pretrial contentions embodied in the pretrial order raised the issue of the Board’s independent negligence in its “failing to provide a safe place for participation in gymnastic activities” (the complaint) and “failing to provide a proper place for physical education” (the pretrial order).

I am satisfied that, the duty being that set forth above and no statutory bar to liability existing for reasons I have already detailed, the verdict has support in the credible evidence in the whole record (State v. Johnson, 42 N. J. 146 (1964), no manifest miscarriage of justice appears (Dolson v. Anastasia, 55 N. J. 2 (1969)), and we should be careful not to substitute our judgment for that of the jury (Wytupeck v. Camden, 25 N. J. 450, 466 (1957)).

The evidence below, if credited, proved (a) the existence of a hazard to running activities which should have been apparent to the reasonably prudent educator, or layman for that matter: the constant presence of a substantial amount of loose gravel on a slightly inclined macadam parking lot; (b) knowledge on the part of the school superintendent — the administrative head at the school ■ — ■ of that hazard and of the fact that “the girls” (students) would be required to run in that area during the ordinary course of instruction in their gym classes. I have no difficulty ascribing agency between the superintendent and the defendant board, nor in imputing the superintendent’s knowledge to the Board. Providing only that this evidence reached the jury accompanied by careful instructions, I am well satisfied that the pleadings and proof were adequate to sustain the verdict.

In submitting the case to the jury, the judge charged, entirely properly, I think, and compatibly with the theory of the trial, that:

* * * It is the duty of the Board of Education to exercise such care for the safeguarding of its students while in attendance upon the school property or classes during regular school hours from injuries that were reasonably foreseeable as would have been exercised by the reasonably prudent person under the proven circumstances.
Now, in order for you to charge the Board of Education, of course, with negligence in this case, it will be necessary that knowledge by the Board of Education of the use of this driveway and parking lot by the class and the existing conditions be established by the preponderance, or such circumstances be shown by such proof that in the exercise of reasonable care would have caused it to be aware of the said use or such as would have caused a reasonably prudent person to have been aware of such use. *' * *

I conclude that a duty existed, there was proof of its breach, the duty was adequately described to the jury in the charge, and the burden of proof was correctly assigned. It follows that the verdict is, in my opinion, sound.

However, it is also clear to me that, in view of the nature of the hazard —■ the very fact which implicates the Board — it was error to remove the issue of plaintiff’s contributory negligence. The jury should have been required to decide whether plaintiff’s conduct, in the face of this fairly obvious and apparent danger, was that of a reasonable and prudent person similarly circumstanced.

Accordingly, I would reverse and remand for a new trial. At first constrained to vote for a new trial only on the issue of the infant plaintiff’s contributory negligence, I am now satisfied that in all fairness to both parties the Board’s negligence and the infant plaintiff’s negligence should be ad-measured in the same trial and on the same testimony. Therefore I would vacate the judgment entered. No appeal having been taken by plaintiff against the dismissal of the teacher’s action, I would limit the new trial to plaintiff’s asserted cause of action against the Board.

      Curiously, the order for judgment entered on March 29, 1973, the day after an order denying a new trial was signed, “[ojrdered and adjudged that judgment be entered in favor of the plaintiffs, Charlene Dobbins, an infant by her Guardian ad Ditem, Pauline Dobbins Whitney and Pauline Dobbins Whitney, individually, in the amount of Twenty-five Thousand Dollars ($25,000) plus interest and costs.” We make no comment other than to observe this apparent irregularity and departure from that which was contended for in the complaint, i. e., compensatory damages for the infant and medical expense damages and loss of services for the parent, individually.

      The only testimony in this respect was by defendant Kimber that the Superintendent knew that the girls would run from time to time in the parking lot area, that he had walked there, and that he “knew what the area looked like.” The latter was really an incompetent conclusion of the witness, if related to the gravel on the parking lot.

      I cannot resist, however, a comment with respect to the majority's [third] second footnote, and the phrase to which it is attached. Were I sitting as a fact finder, my view of the photographs said in testimony to represent the situation as of the day of the accident, coupled wtih the testimony, would leave me inescapably convinced that: (a) the parking lot was at no place level; (b) it was generously covered with an inordinate amount of gravel; and most significantly (e) that the superintendent, whose office which he visited daily was in the school building serviced by the parking lot, could not possibly have been unaware of the hazardous condition of the parking lot in terms of a place for girls running. If a reasonable inference from direct proof makes evidence competent in the sense that word is used by the majority, then we also disagree in this respect. But no matter; as the majority notes, it would have come to the same conclusion in any event.


source: Caselaw Access Project

author: Pee Cueiasi.

license: Public Domain

text:
    FLORENCE L. BRODERICK, APPELLANT, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, AND BRADLEES, INC., RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted January 17, 1975
    Decided February 27, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Ms. Florence Broderick, appellant, submitted a pro se brief.

      Mr. William F. Hyland, Attorney General, attorney for respondent .Board of Review (Mr. Michael S. Bokar, Deputy Attorney General, of counsel and on the brief).
   Pee Cueiasi.

This is an appeal from a decision of the Board of Review, Division of Employment Security, Department of Labor and Industry, which disqualified appellant (claimant) for benefits under the Unemployment Compensation Law on the ground that she had left work voluntarily without good cause attributable to her work, as provided in N. J. S. A. 43:21 — 5(a).

The decision below was not based upon a showing that claimant actually left work of her own volition, but rather that she was discharged because her actions at work were such as to demonstrate an intent to quit and which left her employer no choice but to discharge her — what is sometimes called a “provoked discharge.”

Claimant worked as a salesgirl in respondent’s store. She disliked the “rock” music which was amplified throughout the store. Preferring gospel music, she carried a transistor radio in her pocket and used an earplug so that she could hear the music of her preference. Her department manager asked her to remove the earplug. She refused and was suspended until a conference could be scheduled with union representatives present. Apparently she was also accused of proselytizing during store hours. The union representatives who met with petitioner were unable to convince her to remove the plug. She was later permanently terminated.

At the hearing below the hearing officer asked claimant whether she had in fact attempted to proselytize customers. She replied that “when people would take God’s name in vain, I’d say, ‘Please don’t do that, praise His name.’ ” The shop steward testified that she and “other girls” had received complaints of claimant’s proselytizing from a number of customers.

The Appeal Tribunal concluded that the employer’s requests were reasonable, that claimant’s refusal to comply forced the employer to the position where it had no choice but to separate her, and that she was disqualified for benefits for having ‘left work without good cause attributable to [her] work,” in accordance with N. J. S. A. 43:21-5 (a). The Board of Review affirmed and claimant appeals.

We conclude that the decision below erroneously applied paragraph (a) of N. J. S. A. 43:21-5 rather than paragraph (b) to the facts of this case.

So far as pertinent the statute in effect at the time of petitioner’s discharge read:

N. J. S. A. 43:21-5. Disqualification for benefits
An individual shall be disqualified for benefits:
(a) For the week in which he has left worh voluntarily without good cause attributable to such work, and for each week thereafter until he has earned in employment (which may be with an employing unit having in employment one or more individuals) at least 4 times his weekly benefit rate, as determined in each case; provided, however, that no disqualification shall be applicable to a woman who left or was sepax-ated from her work solely by reason of her pregnancy.
(b) For the week in which he has been finally discharged for misconduct connected with his worh, and for the 5 weeks which immediately follow such week (in addition to the waiting period), as determined in each case. In the event such discharge should be rescinded by the employer voluntarily or as a result of mediation or arbitration this subsection (b) shall not apply, provided, however, an individual who is restored to employment with back pay shall return any benefits received under this chapter for any week of unemployment for which he is subsequently compensated by his employer. [Emphasis supplied]

The distinction between (a) and (b) is significant in determining the period of disqualification. If subsection (a) applies, claimant is disqualified until such time as she has earned at least four times her weekly benefit rate. In contrast, under subsection (b) she is disqualified for the week in which she has been discharged, and for the five weeks immediately following such week (in addition to the waiting period).

Thus the question hero is whether, under the finding of fact below, claimant (a) “left work voluntarily without good cause attributable to such work” or (b) was “finally discharged for misconduct connected with [her] work.”

Clearly, claimant did not voluntarily quit. It was the employer who terminated the employment. And it did so because of claimant’s adamant refusal to comply with its reasonable requirements concerning the use of the ear plug and proselytizing during working hours. This was “misconduct connected with [her] work.” Therefore subsection (b) applies and her disqualification extends only to the period provided therein. Any other construction of the statute would label as a “voluntary quit” every discharge following an employee's refusal to comply with the employer’s reasonable direction. We cannot accept such a construction of the statute.

The decision of the Board of Review is reversed and the matter is remanded for award of benefits subject only to the disqualification provided in N. J. S. A. 43:21-5(b).


author: Matthews, P. J. A. D.

text:
    JOSEPH F. SHANAHAN, APPELLANT, v. STATE BOARD OF EDUCATION, EDWARD W. KILPATRICK, ACTING COMMISSIONER OF EDUCATION, RESPONDENTS, ROBERT J. CORNELL, APPELLANT, v. STATE BOARD OF EDUCATION, EDWARD W. KILPATRICK, ACTING COMMISSIONER OF EDUCATION, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 28, 1975
    Decided March 13, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Joseph F. Shanahan argued the cause pro se and for appellant Cornell.

      Miss Jane Sommer, Deputy Attorney General, argued the cause for respondents (Mr. William F. Hyland, Attorney General, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
    A statement in lieu of brief was filed by Mr. Robert J. T. Mooney, attorney for Watchung Board of Education (Messrs. Buttermore and Mooney, attorneys).
   The opinion of the court was delivered by

Matthews, P. J. A. D.

These are consolidated appeals from decisions of the State Board of Education in the matters of the annual school elections held in the school district of Lambertville, Hunterdon County, and the school districts of the Borough of Watchung and the Watchung Hills Regional High School, Somerset County, affirming decisions of the Commissioner of Education which overruled his prior decision that had directed that any list of voters’ names compiled by challengers in school district elections should be destroyed to prevent their further use after the closing of the polls.

On February 13, 1973 a school election was held in the City of Lambertville school district in which appellant Shanahan is a resident and taxpayer. On February 22, 1973 Shanahan filed a letter of complaint with the Commissioner of Education charging that certain challengers employed at the polls in that election had left the polling places without destroying ox disposing of the informal poll lists they had complied. He requested the Commissioner to determine whether such lists had been kept by the challengers and, if so, to order them destroyed. He did not challenge the results of the election.

A hearing was held on Shanahan’s petition before a hearing officer designated by the Commissioner. The hearing officer found that although the challengers who testified admitted that they had compiled informal polling lists during the election, there was no evidence either that they had removed their lists from the polling place or that such lists were still in existence at the time of the hearing. He therefore recommended that in the absence of any proof of Shanahan’s allegation of election irregularities, his petition should be dismissed.

The Commissioner noted in his decision that the question raised by appellants had been considered previously in his decision, In the Matter of the Annual School Election in the School District of the Borough of Watchung, Somerset County, rendered May 11, 1972, which was affirmed by the State Board of Education. In that opinion the Commissioner found that it would not be improper for a challenger to prepare an informal poll list. However, he noted that by statute formal poll lists must be prepared, N. J. S. A. 18A: 14-28, and that within five days of the election these lists together with other specified election materials must be forwarded in a sealed package to the county superintendent to be preserved for one year. N. J. S. A. 18:14-62. Therefore, he concluded that even though challengers’ informal lists are not subject to the requirements of N. J. S. A. 18A:14-62, they should be destroyed following an election.

In reviewing Shanahan’s petition the Commissioner reconsidered his May 11, 1972 decision and overruled it insofar as it required destruction of informal poll lists, because (1) the requirement had proven unenforceable, and (2) the list compiled by a challenger is an informal one reflecting only his observation of who has voted, while the official poll list which is the subject of statutory protection is an official compilation of voters’ signatures used by election officials for purposes of comparison with the signature copy register to determine voters’ eligibility to receive a ballot. N. J. S. A. 18A:14-51. Shanahan’s petition was therefore dismissed.

Shanahan appealed the decision to the State Board of Education insofar as it overruled the 1972 Watchung holding. The State Board affirmed. It concluded that since, pursuant to N. J. S. A. 19:31-18.1, any voter, including a challenger, may purchase a copy of the voters’ registry list from the county clerk, it was proper for a challenger to prepare an unofficial poll list by checking off names of voters on his own copy of the registry list, and thereafter retain and remove it from the polling place without legal impediment. The State Board further concluded that N. J. S. A. 18A:14-62, which requires sealing and protection of official poll lists, does not apply to unofficial lists informally compiled by challengers.

In the second action appellant Cornell filed a letter complaint with the Commissioner claiming that in a statement issued to the public on January 18, 1973 the board of education of the school district of the Borough of Watchung had indicated that it did not intend to require that challengers’ informal poll lists be destroyed following the approaching school election. A hearing was held on that complaint before a hearing examiner designated by the Commissioner on the same day that the annual school election was held in the district.

Subsequently, Cornell filed complaints with the Commissioner charging that in the school district elections for both the Watchung Hills Regional and Watchung Borough districts, election officials were advised by their respective school board secretaries that challengers could prepare lists of people voting and could retain those lists, contrary to the Commissioner’s decision in the 1972 Watchung case which required destruction of challengers’ lists. Cornell petitioned the Commissioner to investigate these alleged irregularities and to take appropriate action, should irregularities he found. He did not challenge the results of the elections.

A hearing was held on both complaints before a hearing examiner designated by the Commissioner. The Commissioner rendered a decision covering both complaints in which he overruled his earlier determination in the 1972 Watchung decision requiring destruction of challengers’ informal poll lists for the same reasons set forth in his decision on Shanahan’s petition. Accordingly, he dismissed both of Cornell’s complaints.

Cornell appealed from this decision to the State Board of Education, which on March 6, 1974 affirmed the Commissioner’s decision for the same reasons given in its affirmance of dismissal of Shanahan’s petition on the same issue.

Both Shanahan and Cornell now appeal from the State Board’s decisions. We consolidated the appeals by consent order.

N. J. S. A. 18A:14-48 requires the designated clerk of a school district election to keep an official poll list at each polling place which is to be “arranged * * * in such manner that each voter voting in the polling place at the election may sign his name and state his address therein and the number of his official ballot may be indicated opposite the signature.”

Each voter who enters the polling place during the election must give his name and address to the election official in charge of the signature copy register. N. J. S. A. 18A:14-49. That register is the same signature copy book used in general elections and is provided for comparison purposes only to the school district by the commissioner of registration of the county. N. J. S. A. 18A:14-47, 18A:14 — 51. Before receiving a ballot a voter must sign his name on the official poll list, N. J. S. A. 18A:14-50, and that signature must be compared with the voter’s signature in the signature copjr register. N. J. S. A. 18A:14-51.

Immediately after the election the official poll list, the tally sheets and ballots are placed in a sealed package and delivered by the inspector of election at each polling place to the secretary of the local board of education, N. J. S. A. 18A:14-61, who, in turn, “within five days after the date of the election [shall] forward a sealed package containing a statement of the canvass of the votes in the school district, the ballots, including the irregular ballots, the poll lists and the tally sheets to the county superintendent who shall preserve them for one year.” N. J. S. A. 18A:14-62.

Thus, public inspection of official poll lists is barred for one year after a school election unless a charge of irregularity is made.

A challenger’s right to make an informal list of voters’ names was established by the Commissioner and the State Board in the May 1972 Watchung decision, above, and is not at issue here. Appellants argue, however, that N. J. S. A. 18A:14-62 represents an attempt by the Legislature to keep the identity of voters at a school election concealed from the general public, at least until the following election. They suggest that if voters’ identities are not so concealed, the integrity of the election process is somehow harmed. They do not suggest that the' outcome of either of the elections out of which these appeals arise was improperly affected, nor have they shown that the integrity of the election processes in either election has been harmed by the claimed availability of challengers’ lists after the elections were concluded.

We find nothing in the statutory language or the statutory scheme to suggest that the sealing of the official poll lists for one year was intended to do any more than protect them as documentation of one school election for one year. Certainly, we find no indication that the requirement that those lists be sealed was designed to keep the identity of voters in one election secret until after the next ensuing election.

It is apparent that the official poll list required to be kept under N. J. S. A. 18A:14-48 is a perishable document easily susceptible to mutilation, destruction or alteration, compared, for example, to the official signature copy register required to be maintained under the general election laws. The legislative concern for the integrity of the school district election process by requiring the immediate sealing and depositing of such election records is more readily understandable when that fact is considered. We have recently recognized that concern in our determination that the provisions of N. J. S. A. 18A:14-61 and 62 are exceptions to N. J. S. A. 47:1A-1 el seq., the Right to Know Law. Shanahan v. N. J. State Bd. of Education, 118 N. J. Super. 212 (App. Div. 1972). We do not read our opinion in Shanahan to suggest that the provisions of N. J. S. A. 18A:14-61 and 62 are designed to hide from the electorate the identity of the individual voters who cast their ballots in the most recent school district election. Rather, we recognized the legislative purpose of keeping the official election records, including the official poll lists, physically protected for the period of one year, absent a question of election • irregularity.

Einally, we find no merit to appellants’ arguments that the decision of the State Board of Education is arbitrary and capricious in that it failed to consider the integrity of the school election processes which is described as the basic issue raised, and that the structure of the appeals system of the Department of Education is such that it denied procedural due process to them.

Affirmed.


author: Halpern, P. J. A. D.

text:
    MIDDLESEX COUNTY BOARD OF TAXATION, PLAINTIFF-RESPONDENT, v. BOROUGH OF SAYREVILLE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, ETC., ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 21, 1975
    Decided January 30, 1975.

      Before Judges Halpern, Crahay and Ackerman.

      Mr. Sanford E. Chernin argued the cause for appellants Borough of South Plainfield and the Board of Assessors of the Borough of South Plainfield (Mr. William S. Singer on the brief).

      Mr. Robert A. Blanda argued the cause for appellants Borough of Sayreville and J. Howard Kolb, Assessor of the Borough of Sayreville.

      Mr. Dennis J. Cummins argued the cause for appellant Borough of Dunellen (Mr. Henry Handelman, attorney).

      Mr. Peter D. Pizzuto, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

On May 1, 1973 the Middlesex County Board of Taxation (Board), with the approval of the Director of the Division of Taxation (Division), by written directive ordered the Middlesex County municipalities of Sayreville, South Plainfield, Dunellen, Carteret, South Am-boy and their respective tax assessors to make a complete revaluation of all taxable real property within each municipality, to be effective in 1975. When it became obvious that the five municipalities were not complying with the order, a prerogative writ suit was commenced on January 21, 1974 to enforce the order of May 1, 1973.

At a summary hearing held in the Law Division on March 7, 1974 the trial judge dismissed the suit against Carteret and South Amboy because they were then complying with the Board’s order. He ordered Sayreville, South Plainfield and Dunellen to comply with the Board’s order immediately. This appeal is by the three municipalities from the latter order. No review was sought before the State Division of Tax Appeals. On the joint application of appellants and respondent the appeals were consolidated and the trial judge’s order amended, extending appellants’ time to make their revaluations for the 1976 tax year.

The narrow issue raised by appellants is that the Board’s order is unlawful and ill-advised because (1) it allegedly would compel them to help support a statewide system of financing public education which was held to be unconstitutional in Robinson v. Cahill, 62 N. J. 473 (1973), cert. den. 414 U. S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973), as supplemented by Bonnett v. State, 126 N. J. Super. 239 (App. Div. 1974), and (2) it is inadvisable for appellants to needlessly spend huge sums of money in making revaluations until such time as either the Legislature or the New Jersey Supreme Court implement Robinson v. Cahill. We disagree.

The New Jersey Constitution (1947), in Art. VIII, § I, par. 1 mandates in relevant part that:

Taxation; assessment
1. (a) Property shall be assessed for taxation under general laws and by uniform rules. All real property assessed and taxed locally or by the State for allotment and payment to taxing districts shall be assessed according to the same standard of value, except as otherwise permitted herein, and such real property shall be taxed at the general tax rate of the taxing district in which the property is situated, for the use of such taxing district.

In accordance with this constitutional mandate the Legislature enacted N. J. S. A. 54:3-13, 14 and 16, together with N. J. S. A. 54:4-47, which laws empowered county tax boards and their local tax assessors to carry out and enforce the aforementioned constitutional mandate. In short, the Legislature, through the county boards of taxation and the local tax assessors, has created a taxation plan designed to insure the prompt, ¡equal and efficient implementation of a statewide taxing program. The purpose of total revaluation is to achieve tax equality not only as to any given taxing district but also between municipalities of the same county. Orders to accomplish this result are enforceable by mandamus. Essex Cty. Bd of Taxation v. Belleville, 92 N. J. Super. 338 (Law Div. 1966), aff'd 95 N. J. Super. 327 (App. Div. 1967). See also, Switz v. Middletown Tp., 23 N. J. 580 (1957) and Ridgefield Park v. Bergen Cty. Bd. of Taxation, 31 N. J. 420 (1960), app. dism. 365 U. S. 648, 81 S. Ct. 834, 5 L. Ed. 2d 857 (1961).

We see no inconsistencies between the order herein entered pursuant to the constitutional mandate and the decisions in Robinson and Bonnett. The latter decisions are primarily concerned with the method of financing public education, evidenced by the dollar amount spent per pupil, and not the power of municipalities to assess real property on an equal basis in accordance with law. The mere uncertainty over what tax policy the Legislature or the Supreme Court may adopt, or when such may be accomplished, is not a valid legal reason to delay the execution of constitutional and statutory mandates which are otherwise legal and necessary for the public good. To accept what appears to be a prime reason for delay advanced by one of the appellants in its brief, that “It is not unreasonable for the parties in this matter [appellants] to take a wait and see attitude before the revaluation process proceeds,” is ludicrous and deserves no extended discussion.

In view of the importance of the issue involved, and the shortness of time remaining for appellants to comply with the outstanding judgment, we have decided the merits — bypassing the accepted practice which requires appeals from orders of county tax boards to go to the Division of Tax Appeals. See N. J. S. A. 54:2-35; Central R. R. Co. of N. J. v. Neeld, 26 N. J. 172 (1958), cert. den. 357 U. S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 (1958); Bergen Cty. Bd. of Taxation v. Bogota, 104 N. J. Super. 499 (Law Div. 1969), aff'd 114 N. J. Super. 140 (App. Div. 1971).

Affirmed.


author: Handler, J. A. D.

text:
    BOROUGH OF SAYREVILLE, IN THE COUNTY OF MIDDLESEX, PETITIONER-APPELLANT, v. THE MIDDLESEX COUNTY BOARD OF TAXATION, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 9, 1974
    Decided February 4, 1975.

      Before Judges Lora, Handler and Tarleton.

      Mr. Leo Rosenblum argued the cause for appellant.

      Mr. Richard M. Conley, Deputy Attorney General, argued the cause for respondent Middlesex County Board of Taxation (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Richard H. Saxe, Deputy Attorney General on the brief).

      Mr. Jeffrey M. Hyman argued the cause for respondent Township of East Brunswick (Messrs. Borrus, Goldin and Foley, attorneys).

      Mr. Louis J. Alfonso argued the cause for respondent Township of Madison.
   The opinion of the court was delivered by

Handler, J. A. D.

This proceeding was commenced by the Borough of Sayreville filing a petition with the Division of Tax Appeals pursuant to N. J. S. A. 54:2-37, seeking review of the 1973 equalization table promulgated by the Middlesex County Board of Taxation. The petition challenging the 1973 Middlesex County equalization table was heard in the Division of Tax Appeals which determined that the table should not be revised, and judgment was entered by the Division affirming the table. Sayreville then appealed that judgment to the Appellate Division.

In 1973 the Middlesex County Board of Taxation elected to change the level of assessment of all real estate in Middle-sex County from 50% to 100%. The county board issued a directive to all assessors in the county advising that for the tax year 1973 each assessment was to be increased to full value as of October 1, 1972. The directive stressed that it would not be sufficient for the assessors '“to merely double the 1972 assessments.”

In determining ratios of aggregate assessed to aggregate true value for the 1973 county equalization table, the Middle-sex County Board of Taxation applied the following system to all Middlesex County taxing districts: the county board used the same basic sales data found in the 1972 Table of Equalized Valuations, promulgated by the Director of the Division of Taxation pursuant to N. J. S. A. 54:1-35.1 et seq. for the purposes of the distribution of state school aid. This was essentially the same list of “usable” sales relied upon by the Director. The period of sales covered by the county board was from July 1, 1971 to June 30, 1972. The county board compared these sales to the 1973 assessments and arrived at individual ratios of assessed value to sales price for each usable sale. Thereupon, the individual ratios were totalled and divided by the number of sales, resulting in a “district ratio” for each taxing district.

Sayreville seeks to have the county equalization table revised by using ratios resulting from the use of the “Page 8 formula,” described in detail in Willingboro v. Burlington Cty. Bd. of Taxation, 62 N. J. 203 (1973). It contends that the use of the Page 8 formula is mandated by the Willing boro decision and that by its use its county tax burden would be reduced by $100,000. It claims that in devising an equalization table the sales price should be compared to the assessment which was on the books at the time the sale took place (the method used by the Director), rather than to an assessment made subsequent to the sale (as done by the county board).

It was early stated in Passaic v. Passaic Cty. Bd. of Taxation, 18 N. J. 371, 385 (1955), that there is no specific statutory

* * * mode for arriving at equalization in the county table. It is a general proposition of law that “where a statute empowers a state board to equalize valuations for taxation, but does not point out the mode, any reasonable and efficient mode may be adopted.” [at 385; citations omitted]

This standard has been often reiterated. E. g., Kearny v. Div. of Tax Appeals, 35 N. J. 299 (1961); Woodbridge v. Middlesex Cty. Bd. of Taxation, 96 N. J. Super. 532 (App. Div. 1967).

The Willingboro case, relied upon by Sayreville, involved the question of how a county board of taxation should accomplish equalization when some, but not all, of the taxing districts within the county had undergone a revaluation or reassessment. The Supreme Court held, in essence, that a county board must uniformly apply “substantially similar data and a common standard” to all taxing districts in the county. 62 N. J. at 219. County boards should not make separate decisions or accord different treatment concerning non-revalued and revalued districts “independent of each other,” since “the interrelated effect of each of these decisions” affects the proportionate county tax burden of all the districts. Id. at 221. Significantly, and in contrast to the situation in the present case, in the Willingboro case the county board of taxation had applied different equalization methods to various taxing districts within the county. It failed to achieve uniformity between revalued and non-revalued taxing districts by utilizing sales data in non-revalued districts and appraisal data in revalued districts, and in considering different time periods of its equalization study.

Here, all taxing districts in Middlesex Connty were treated uniformly in the equalization process in 1973. The county board used the same basic source data for all districts and applied the same time period for all districts. Thus, the Middlesex County Board met the Willingboro mandate by applying “substantially similar data and a common standard” to all districts. 62 N. J. at 219.

In Willingboro the Supreme Court opined that the Director’s suggested Page 8 formula would provide the uniformity required by its decision. While approving the use of the Page 8 formula, however, the Supreme Court expressly recognized that the Page 8 formula is not the only tenable approach, viz:

While we thus approve and encourage the use of the page 8 formula on the remand by the Division of Tax Appeals, subject to any legitimate new objection which may be raised by any taxing district not a party to this appeal which must under the statute be heard at the new hearing, we are unable at this time to say it is the only tenable approach. It is settled that no particular method of equalization is mandatory for a county board of taxation. “* * * [A'|ny reasonable and efficient mode may be adopted.” City of Passaic, supra (18 N. J. at 385). A number of the boards, including Middlesex County’s, use different methods in handling the problem of revalued districts. Some apparently use methods of equalization (without regard to the problem of revalued districts) somewhat different from those of the Director, although practically all develop sales ratio studies of some hind, and we cannot say that any of them are invalid outside the context of the record of a particular case. We therefore do not accept the suggestion of the Director of the Division of Taxation that we order all county boards hereafter to use the page 8 formula for revalued districts where they use the Director’s ratios for non-revalued districts, although we encourage it. [62 N. J. at 227-228]

In Newark v. Essex Cty. Bd. of Taxation, 124 N. J. Super. 76 (App. Div.), certif. den. 63 N. J. 566 (1973), the court recognized that any reasonable method of equalization would be acceptable. Moreover, the unweighted sales study approach to equalization for county tax purposes, as undertaken by the Middlesex County Board of Taxation, has been upheld as a viable equalization technique comporting with the statutory objectives. Woodbridge v. Middlesex Cty. Bd. of Taxation, supra; Perth Amboy v. Middlesex Cty. Bd. of Taxation, 91 N. J. Super. 305 (App. Div.), certif. den. 48 N. J. 112 (1966).

Sayreville asserts that the method of equalization used by Middlesex County is unworkable and suspect because it encourages fraudulent practices since it involves a comparison of usable sales with the assessments made after the sale rather than prior to the sale. Thus, assessors may be tempted to manipulate the assessments of properties which are included in the sales study in order to influence the final ratio.

The Middlesex County board has equalized, revalued or reassessed taxing districts for many years by comparing the assessments resulting from the revaluation or reassessment program with sales prices from the prior year’s sales study. According to the evidence, however, this has been done after careful screening for possible errors or manipulations by local assessors. The screening process consists of reviewing assessment changes to see if an assessor has changed a substantial number of assessments in a given area, or whether he has merely changed the assessments on properties subject to prior sales. If it appears that the assessor has singled out for assessment changes properties that have been recently sold, the county board seeks an explanation from the assessor. If not satisfied that the assessments have been changed uniformly within the district, or if satisfied that the assessor has engaged in “spot assessing,” the county board rejects from its sales study the suspect sales, considering them unusable for equalization purposes.

In addition to such checks and self-regulation, any taxing district considering itself aggrieved by the utilization of a particular suspect sale may seek revision of the table at the equalization hearing before the board (N. J. S. A. 54:3-18) or upon a further appeal to the Division of Tax Appeals (N. J. S. A. 54:2-35). If an affected taxing district has been prejudiced by the ratio ascribed to another district and claims that this was occasioned by attributing an improper assessment to a specific property included in the sales study, there is no reason why the inclusion of that sale could not be challenged in the same manner and with the same efficacy as any attack upon the Director’s table for school aid purposes or the county’s equalization table. See e. g., Kingsley v. Div. of Tax Appeals, 40 N. J. 338 (1963); Passaic v. Passaic Cty. Bd. of Taxation, 27 N. J. 467 (1958); Carteret v. Div. of Tax Appeals, 40 N. J. Super. 439 (App. Div.), certif. den. 22 N. J. 224 (1956).

It has been recognized, and should be restated, that the equalization of aggregates of assessments is, at best is an imperfect and inexact science. There devolves upon county boards of taxation only the duty of effectuating this process so as to secure, to the most feasible limit, a fair distribution of the common tax burden and to minimize as much as possible the unfair or disparate allocation of the joint tax. Passaic v. Passaic Cty. Bd. of Taxation, supra, 18 N. J. at 381. No specific plan or method has been prescribed in the carrying out of the equalization function and any reasonable and efficient method may be employed. Understandably, exactitude is neither expected nor required and a degree of imperfection is perforce tolerated. Willingboro v. Burlington Cty. Bd. of Taxation, supra, 62 N. J. at 220; Passaic v. Passaic Cty. Bd. of Taxation, supra, 18 N. J. at 385; Woodbridge v. Middlesex Cty. Bd. of Taxation, supra, 96 N. J. Super. at 536.

The primary obligation to equalize assessments lies with the county board of taxation. Its determination is presumed correct until overcome by sufficient competent evidence, “Which must be definite, positive and certain in quantity and quality.” Perth Amboy v. Middlesex Cty. Bd. of Taxation, supra, 91 N. J. Super. at 309. Upon review of the county board’s equalization table by the Division of Tax Appeals, the action taken by the Division itself is presumed to be correct and the courts will interfere only upon a showing that the Division’s action was arbitrary, capricious or unreasonable. Carteret v. Div. of Tax Appeals, supra.

For the foregoing reasons, the judgment of the Division of Tax Appeals is affirmed.

      The following changes were made from the Director’s table: (1) If districts had been revalued in 1972, the board included the sales for these districts from July 1, 1971 to December 1, 1971. Such sales were not included in the Director’s table. (2) Sales were deleted or declared unusable if the use of the land had changed, or if the land had been subdivided, and a sale had occurred during the sales period in question. Bor example, land for which there was an assessment and a sale in 1972, but which was subdivided in 1973, was not included by the board as a usable sale. (3) Sales were deleted which the Director improperly included in his table. Approximately 100 changes were thus made in the Director’s table.


author: Kolovsky, P. J. A. D.

text:
    THE HOWARD SAVINGS INSTITUTION, PLAINTIFF-APPELLANT, v. GILBERT H. FRANCIS, DIRECTOR OF THE DIVISION ON CIVIL RIGHTS, AND GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF NEW JERSEY, DEFENDANTS-RESPONDENTS. BARBARA SIMS, COMPLAINANT, v. THE HOWARD SAVINGS INSTITUTION, RESPONDENT-APPELLANT, v. DIVISION ON CIVIL RIGHTS, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 3, 1974
    Decided February 25, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Mr. David Samson argued the cause for appellant (Messrs. Lieb, Wolff & Samson, attorneys).

      Ms. Judith S. Musicant, Deputy Attorney General, argued the cause for respondents (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Shillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

In one of these consolidated appeals — A-1519-7'3, in which leave to appeal was granted by the Supreme Court — appellant The Howard Savings Institution challenges: (1) the propriety of a number of the interrogatories served by the Director of the Division on Civil Rights (Director) in the course of his preliminary investigation of a complaint alleging racial discrimination filed by Barbara Sims, a former employee of Howard, and (2) the Director’s denial of Howard’s motion to take the deposition of Barbara Sims and to serve interrogatories upon her. The latter motion -was made under the Division’s discovery rule, N. J. A. C. 13 :4-8.2, and was denied by the Director “on the ground that a finding of probable cause or no probable cause has not been made to date [the Director noting that] if a finding of no probable cause is ultimately indicated, discovery at this juncture1, will have been a waste of all parties’ resources.”

In the other appeal (A-186-73), Howard attacks the validity of N. J. A. C. 13 :4-8.2, contending that it was entitled to the discovery it sought “as a matter of right.”

Preliminarily, it will be helpful to briefly review the procedures mandated by the Law Against Discrimination, N. J. S. A. 10:5-1 el seq., in case a verified complaint charging a discriminatory employment practice is filed with the Director.

On receipt of the complaint the Director (acting “for the -Attorney General, in his place and with his powers,” N. J. S. A. 10:5-8(d)) is required to cause an investigation to be made. N. J. S. A. 10 :5-14. In connection with that investigation the Director may, among other things, “conduct such discovery procedures which may include the taking of interrogatories and oral depositions as shall be deemed necessary bjT the [Director] in any investigation.” N. J. S. A. 10 :5 — 8 (i); see also General Motors Corp. v. Blair, 129 N. J. Super. 412 (App. Div. 1974).

If the Director determines “after such investigation that probable cause exists for crediting the allegations of the complaint” he is to seek to eliminate the unlawful discrimination by conference, conciliation or persuasion. N. J. S. A. 10:5-14. “In case of failure so to eliminate such practice or discrimination, or in advance thereof if in his judgment circumstances so warrant,” the Director is to serve on the respondent a notice requiring it to answer the charges at a hearing to be held at a designated time and place. N. J. S. A. 10:5-15.

The respondent may file a verified answer and may appear, with or without counsel, at the scheduled hearing at which testimony under oath is to be taken and transcribed. “The case in support of the complaint” is to be presented by the Division’s attorney — although, in the Directors’ discretion, the complainant and his counsel may also participate — and the respondent may submit testimony. N. J. S. A. 10:5-16. At the conclusion of the hearing the Director is required to make findings, and if he finds the charges substantiated, may proceed to take specified remedial action. N. J. S. A. 10:5-17.

Although the statute, by its terms, provides only for discovery by the Director — both in connection with the investigation and with the hearing if one is held, N. J. S. A. 10:5-8(i) — N. J. A. C. 13:4-8.2, a rule adopted by the Attorney General pursuant to the authority granted by N. J. S. A. 10:5-8(g) to adopt “suitable rules and regulations to carry out the provisions of the [Law Against Discrimination N. J. S. A. 10:5-1 et seq.]” provides:

(a) The Director may allow any party on motion to take depositions, or to serve interrogatories upon any other party in the case, whenever he shall deem it necessary for the fair presentation of a case, and he shall determine such terms and conditions as are appropriate.
(b) The Director may issue such subpoenas as he deems necessary to aid the discovery process.

Appellant contends that "an accused before the Division on Civil Rights is entitled to prehearing discovery as a matter of right.” It argues that the rule is invalid because discovery is to be granted only in the discretion of the Director "whenever he shall deem it necessary for the fair presentation of a case.” Further, it argues that a respondent is entitled to discovery as of right, not only in the event there has been a finding of probable cause resulting in the case being set down for hearing, hut also during the course of the Director’s investigation of the complaint and before there has been a determination by him as to whether or not probable cause exists.

We find no merit in appellant’s arguments. Pretrial discovery, even in the case of judicial proceedings, is not a constitutional right and was not a right recognized at common law. 23 Am. Jur. 2d, Depositions and Discovery, §§140 and 307 (1965); see also, Annotation, "Discovery — Prosecution’s Evidence,” 7 A. L. R. 3d 8, 31 (1966). Provision for sudb discovery, limited in application, however, to judicial proceedings, stems from statutes or court rules providing therefor. See, e.g., R. 4:10-1 et seq.; R. 3:13-3.

The desirability of making some pretrial discovery procedures available to parties in proceedings before an administrative agency is evident, cf. 1 Davis, Administrative Law, § 8.15 (1958), and the adoption of the Division’s discovery rule, N. J. A. C. 13:4-8.2, is a recognition of that fact.

Appellant’s claim that the rule is invalid because it vests discretion in the Director lacks substance. Even the liberal discovery rules applicable to judicial proceedings, both civil and criminal, grant a discretionary power to the court to limit and control discovery. See R. 4:10-3 et seq. and R 3 :13-3(d). It is of no moment that, in the case of the administrative proceedings before the Director, he is to exercise Ms discretion on application by the party seeking discovery before discovery is undertaken, rather than, as in the case of judicial proceedings, upon motion of the party against whom discovery proceedings have been instituted. If the Director should refuse or limit the discoveiy sought, his action would be reviewable for abuse of discretion just as would a similar ruling by a trial court in a judicial proceeding.

Further, it is neither arbitrary nor unreasonable for the Director normally to refuse to grant discovery to a party until there has first been a determination made, on the basis of the Director’s investigation, that there is probable cause for the complaint filed against it. Permitting discovery by a party before then will result in a waste of time and effort by all concerned if the Director’s investigation should result in a finding of no probbale cause. The delay in making discovery available to a respondent is not unreasonable. It will have a full opportunity to invoke the Division’s discovery rule in order to prepare for trial if probable cause is found and the case is set down for hearing, a fact which the Director acknowledged in the concluding paragraph of his decision denying Howard’s motion for discovery, viz.: “If a finding of probable cause is made, any reasonable request for discovery by the respondent will be granted if renewed at that time.”

Finally, it should be noted that the practice adopted by the Director is not unique. A similar practice is provided for in our criminal discovery rules which permit discovery by a deefndant only after he has been indicted, see R. 3 :13-3(e), and not while the grand jury is still investigating his alleged offense.

We are satisfied that N. J. A. C. 13 :4-8.2 is a valid regulation.

We turn next to the appeal in Sims v. The Howard Savings Institution, A-1519-73. That appeal first seeks to reverse the denial of appellant’s motion to take the complainant’s deposition and to serve interrogatories upon her, a denial which conformed to the Director’s normal practice of refusing discovery to a party until his investigation is completed. We have already upheld the validity of that practice and find nothing in appellant’s moving papers to show such unusual circumstances as to require the Director to deviate from his normal practice.

The balance of the appeal in the Sims ease involves interrogatories served by the Director on Howard during the course of his still pending investigation. Howard answered some of the interrogatories and, by motion before the Director, challenged and moved to strike the remainder of them, numbers 6, 7, 18(b), (c) and (d), 24(a) and (b), 25, 27 through 31 and 33.

Howard appeals from the action of the Director in refusing to strike the challenged interrogatories even though he did defer, “pending further investigation of the case,” any requirement that Howard answer any of those interrogatories other than numbers 6, 25, 30(a) and (b) and 33.

We have concluded from our review of the criticized interrogatories, the proofs submitted in support of appellant’s motion and the Director’s decision that:

(a) No. 6 is proper — indeed appellant withdrew its objection thereto at oral argument;

(b) No. 7, which was answered although its propriety was challenged, is proper;

(c) As to interrogatories 18(b), (c) and (d) and 24(a) and (b), it appears, from the record here, that unless and until the Director determines that there is probable cause for the complaint, it would be unreasonable to require Howard to search for and collate the voluminous information which those interrogatories call for;

(d) No. 25, which seeks certain information concerning all persons discharged by appellant during the past 12 months, is not unreasonable or unduly onerous;

(e) So much of No. 27 as requests copies of the charges, if any, filed against appellant during the past two years before the Equal Employment Opportunity Commission and of the disposition thereof is not improper; but since the similar information sought with respect to charges, if any, before the Division on Civil Rights is already possessed by the Division, that portion of the interrogatory should have been stricken;

(f) Interrogatories 28 and 29 are not oppressive since the Director has represented that if he does hereafter call for answers giving the information sought by those interrogatories, the information may be furnished by submitting copies of the federal EEO-1 forms Howard has filed for the past three years;

(g) Since interrogatory 30(a) specifies that it may be answered by submitting a copy of Howard’s latest EEO-1 reporting form, and 30(b) calls for only a simple answer, we find nothing oppressive or unreasonable in either of them;

(h) The challenge to interrogatory 31 is moot since the information requested thereby already has been furnished in Howard’s answer to interrogatory 18 (a);

(i) If interrogatory 33 is amended to specify the particular position to which it refers, there will be nothing improper therein.

In A-186-73 judgment is hereby entered declaring that N. J. A. C. 13 :4-8.2 is a valid regulation.

In A-1519-73: (a) we affirm the Director’s order denying appellant’s motion to take the deposition of the complainant and to serve interrogatories upon her; (b) we affirm the refusal of the Director to strike interrogatories 6, 7, 27 (insofar as it refers to charges before the Equal Employment Opportunity Commission), 28, 29, 30 and 33 (to be amended as indicated above), and (c) we reverse the Director’s refusal to strike interrogatories 18(b), (c) and (d), 24(a) and (b) and so much of 27 as refers to charges filed with the Division on Civil Rights.


author: Dwyer, J. S. C.

text:
    SARAH FENNELL AND WILLIE FENNELL, HER HUSBAND, PLAINTIFFS, v. FRANCISCO FERREIRA, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided February 21, 1975.

      Mr. Elliot M. Bross for plaintiffs (Messrs. Horowitz, Bross and Sinins, attorneys).

      Mr. Donald B. Connolly for defendant (Messrs. Oppenheim & Oppenheim, attorneys).
   Dwyer, J. S. C.

In an action brought for personal injuries sustained by Sarah Pennell in an automobile accident in New Jersey on September 8, 1973, defendant Francisco Ferreira moves for summary judgment against plaintiffs Sarah Fennell and Willie Fennell, her husband, on the ground that defendant is exempt from tort liability under N. J. S. A. 39 :6A-8, a section of the No-Fault Law, N. J. S. A. 39 :6A-1 et seq., based on answers to interrogatories which showed that the injury was “sprains of cervical spine and left shoulder”, and that the wife is no longer under treatment. Another answer refers to an attached medical report dated December 3, 1973 specifying the wife’s medical expenses and treatments, here summarized as follows:

The following expenses are listed:

Date Place Service Charge

9/8/73 Office Initial examination and medication $35

9/10/73 " X-Ray cervical spine 30

X-Ray left shoulder 20

9/10/73 to " Infra-red treatments,

11/9/73 exam, medication 170

$255

In the section of the medical report directed to whether or not wife’s condition was permanent, the answer is “guarded”, and an answer concerning present complaints is that wife still has pain and limitation of cervical motion.

In Hammond v. Doan, 127 N. J. Super. 67, 72 (Law Div. 1974), the court held that an action for declaratory judgment was not proper procedure to determine if exemption under N. J. S. A. 39 :6A-8 made trial unnecessary but suggested that a motion for summary judgment if the facts were undisputed would be proper. Defendant’s motion is apparently based on this suggestion.

The discovery in this case has been conducted under the applicable New Jersey court rules. Since plaintiffs’ claim is based on tort liability and not for payment of benefits under N. J. S. A. 39 :6A — 4, defendant is probably limited to decide that question. Defendant’s motion, therefore, is to discovery under the aforesaid rules and not entitled to discovery under N. J. S. A. 39 :6A-13, but there is no need to be determined as would any other motion for summary judgment under R. 4:46-1 et seq.

Defendant urges that plaintiffs have the burden of establishing initially that they are not subject to the exemption and that if they do not, the answers to interrogatories show that they have expended less than $200, the threshold for tort exemption, because the initial examination ($35) must be regarded as diagnostic and hence excludable from the threshold amount together with the X-ray charges ($50). If so, medical expenses would total $170 for treatment.

Plaintiffs urge that the exemption is an affirmative defense to be established by defendant and that the initial examination of the wife for purposes of deciding what treatment to administer must be regarded as treatment and not a diagnostic expense. See Harris v. Osorio, 125 N. J. Super. 463 (Law Div. 1973).

Counsel for neither party has referred the court to any decision construing the statute, and the court has not found any New Jersey decision which answers the two questions posed. The court treats them in the order stated.

Although not necessary for the decision in Rugamer v. Thompson, 130 N. J. Super. 181 (Law Div. 1974), the court there stated:

N. J. S. A. 39:6A-8 provides for exemption from tort liability and it has been suggested that tort exemption be treated like any other affirmative defense, such as charitable immunity, governmental immunity or contributory negligence, [at 186]

This is consistent with the view expressed in Iavicoli, No Fault and Comparative Negligence in New Jersey, § 57 at 139 (1973). Indeed, defendant in this matter asserted the exemption as the fourth separate defense in his answer.

These views are consistent with general guidelines for construing statutes containing exemptions. In 29 Am. Jur. 2d, Evidence, § 147 at 179, it is stated:

Where an exception or exemption of a statute appears in the enacting clause thereof, the party relying upon the statute to establish a cause of action or defense must prove facts showing that his case does not come within the exception. However, where an exception or exemption appears in a different section, subdivision, or clause from that containing the enacting words of a statute, the party relying upon the statute need not prove that his ease [sic] does not some [sic] within the exception or exemption, but the burden of proof thereof is upon the opposite party.

In Schlemmer v. Buffalo, Rochester & Pittsburg Railway Co., 205 U. S. 1, 27 S. Ct. 407, 51 L. Ed. 681 (1907), Justice Holmes, in noting a proviso in § 6 of the Safety Appliance Act of 1893 that the act did not apply to four-wheel train cars, stated that if defendant wishes to rely on the proviso, he must satisfy the burden of bringing himself within the statutory exception.

This is the practice in New Jersey as well. In Raison v. Berkeley Tp. Bd. of Ed., 103 N. J. L. 547 (Sup. Ct. 1927), defendant demurred to plaintiff’s complaint seeking an order based upon a statute directing the admission of his child to a school within the system, preferably the nearest one to his home, on the ground that the complaint failed to state that no other suitable provision had been made for the admission of the child into a convenient school. The court overruled the demurrer and said:

«. * * There are provisions in other sections [of the relevant statute] whereby for purposes of convenience such child may be assigned to another school, but they are exceptions not in the enacting clause, which need not be negatived by the relator [plaintiff] but should be invoked by the respondent [defendant]. State v. Terry, 73 N. J. L. 554; State v. Reilly, 89 Id. 627, 628; Wheatman v. Andrews, 85 Id. 107, 112, where other cases are collected, [at 5480; explanatory brackets supplied]

See No-Worry Chemical Co. v. Du-All Chemical Co., 16 N. J. Misc. 99, 197 A. 364 (Cir. Ct. 1938); Annotation, “Burden of Allegation and Proof In Civil Cases As Regards Exception In Statute,” 130 A. L. R. 440 (1941).

The statutory exemption in the instant case is found in L. 1972, c. 70, § 8, and not in the enacting clause.

The New Jersey Automobile Insurance Study Commission Report (December 1971) contained the following recommendation concerning tort exemption:

Recommendation 3. Limited Tort Exemption for Certain Soft Tissue Injuries.
(3.0) The right of an injured person to bring an action in tort for damages over and beyond the benefits provided by PIPO (section 1.2) [Personal Injury Protection Benefits under No Fault Insurance] shall be guaranteed, provided however, that injuries involving and limited to “soft tissue” as to which medical treatment by a licensed physician, osteopath, or chiropractor is valued at not more than $100, will not be subject to payment of benefits in excess of those provided by PIPO. (Neither diagnostic nor hospital charges shall be included in valuing the medical treatment for such injuries.) This limitation shall not apply to fatal injuries.

The language of N. J. S. A. 39:6A-8 is not phrased in terms of creating a condition that a plaintiff must satisfy in order to sue. This statute is substantially different from that entitled Death By Wrongful Act, N. J. S. A. 2A:31-1 et seq., referred to by defendant, • where a plaintiff should allege facts to bring himself, or herself, within the coverage of the act. Cf. Engel v. Gosper, 71 N. J. Super. 573 (Law Div. 1962).

The language in question is better analogized to the language in the statute limiting charitable liability for negligence, N. J. S. A. 2A:53A-7 et seq. It has been held in other jurisdictions that charitable status and the existence of facts which will bring an immunity doctrine into play are matters of defense to be proved by the defendant. Barrett v. Brooks Hospital, Inc., 338 Mass. 754, 157 N. E. 2d 638 (Sup. Jud. Ct. 1959); White v. Central Dispensary and Emergency Hospital, 69 App. D. C. 122, 99 F. 2d 355 (D. C. Cir. 1938).

The court concludes that the exemption from tort liability afforded in N. J. S. A. 39:6A-8 is one that Plaintiffs do not have to negate, but Defendant must prove.

Accordingly, defendant has the burden of showing that the exemption is applicable. The first step is to show that the plaintiffs have a status to which the exemption applies, i. e., either plaintiffs are persons required to maintain the coverage required by the No-Fault Law or are persons entitled to receive benefits under the act, and that defendant has a status which entitles him to assert it — i. e., defendant is an owner registrant, operator or occupant of an automobile to which N. J. S. A. 39:6A-4 applies, or a person or organization responsible for his acts or omissions. The second step in the process would be to plead the exemption and, if an assertion is made as to its applicability by motion for summary judgment, to establish by undisputed facts the exemption in the manner provided in R. 4:46.

On the record before the court, the complaint lists an address in New Jersey for plaintiffs and alleges ownership of a car involved in an accident in New Jersey on a date after the effective date of the statute. No reply was filed as to the fourth separate defense setting forth facts that would negate plaintiffs being subject to the statute or the exemption. The allegations in the complaint suggest that plaintiffs probably are within the status, but the allegations do not state that the car was registered in New Jersey. The test for plaintiffs is whether they are required to have coverage under the statute. Defendant should have established this by affidavit.

The answer prepared and filed by an attorney for whom defendant’s present counsel was substituted contains no address for defendant. See R. 1:4-1. It denies the allegation in the complaint concerning the assertion that defendant owned the car he was operating. There is no affidavit on file that states defendant was an "owner * * * [or] operator * * * of an automobile to which [N. J. S. A. 39 :6A-4], personal injury protection coverage, regardless of fault, applies * * The standard for the defendant is that he in fact has the insurance coverage, and not just that he is required to have it, for otherwise §4 of the act would not apply to him. Defendant therefore has not made an initial showing that the exemption is applicable.

The decision of the first question makes it unnecessary to answer the second. The motion for summary judgment is denied.

The court also denies plaintiffs’ motion to impose sanctions in the form of costs against defendant. The legislation involved herein is new and there are no applicable decisions construing it in respect to the questions posed. Such assistance as the court received was in the form of letter memoranda from the respective parties after appearance on the motion. There is nothing in the record to indicate that defendant acted in bad faith or solely for the purposes of delay.

Submit order accordingly.

        N. J. S. A. 39:6A-8 provides:
      “Every owner, registrant, operator or occupant of an automobile to which section 4, personal injury protection coverage, regardless of fault, applies, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for damages to any person who is required to maintain the coverage mandated by this act, or to any person who has a right to receive benefits under section 4 of this act as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State, if the bodily injury, is confined solely to the soft tissue of the body and the medical expenses incurred or to be incurred by such injured person or the equivalent value thereof for the reasonable .and necessary treatment of such bodily injury, is less than $200.00, exclusive of hospital expenses, X-rays and other diagnostic medical expenses. There shall be no exemption from tort liability if the injured party has sustained death, permanent disability, permanent significant disfigurement, permanent loss of any bodily function or loss of a body member in whole or in part, regardless of the right of any person to receive benefits under section 4 of this act. Bodily injury confined solely to the soft tissue, for the purpose of this section means, injury in the form of sprains, strains, contusions, lacerations, bruises, hematomas, cuts, abrasions, scrapes, scratches, and tears confined to the muscles, tendons, ligaments, cartilages, nerves, fibers, veins, arteries and skin of the humán body.”

        N. J. S. A. 2A :53A — 7 states :
      “No nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes shall, excei>t as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association; but nothing herein contained shall be deemed to exempt the said agent or servant individually from their liability for any such negligence.” (L. 1959, e. 90, § 1).

      The historical note under N. J. S. A. 39 :6A-1 states that L. 1972, c. 70, § 19 provided that “the required compulsory insurance, personal injury protection coverage benefits, and tort exemption provisions shall be mandatory on and after January 1, 1973.” The accident occurred on September 8, 1973.