A & B Auto Stores of Jones Street, Inc. v. City of Newark

• Decision Date: 29 November 1968
• Docket Number: No. L--3234,L--3234
• Citation: 103 N.J.Super. 559,248 A.2d 258
• Parties: A & B AUTO STORES OF JONES STREET, INC., a corporation, et al., Plaintiffs, v. CITY OF NEWARK, Defendant.
• Court: New Jersey Superior Court

Page 559

103 N.J.Super. 559

248 A.2d 258

A & B AUTO STORES OF JONES STREET, INC., a corporation, et al., Plaintiffs, v. CITY OF NEWARK, Defendant.

No. L--3234.

Superior Court of New Jersey Law Division.

Nov. 29, 1968.

Herman D. Michels, and Samuel A. Gennet, Newark, for plaintiffs (Herman D. Michels, Samuel A. Gennet, Marvin A. Sachs, Newark, Lester Sandles, South Orange, Stanley M. Teich, East Orange, and William J. McGee, Edison, attorneys for committee representing plaintiffs in consolidated actions).

Norman N. Schiff, Newark, for defendant City of Newark (Philip E. Gordon, Corp. Counsel of City of Newark, attorney).

LARNER, J.S.C.

Approximately 450 suits were instituted against the City of Newark, involving thousands of claims for property damage resulting from riots alleged to have occurred in the city between July 12 and 17, 1967. All such actions were consolidated for trial pursuant to court order and in accordance with a cooperative plan whereby a representative committee of attorneys was designated to conduct all legal proceedings in the litigation. Under the terms of said order all parties are bound by the determination of the court in the consolidated proceeding.

In an effort to dispose of certain issues and clarify others prior to trial, counsel for both sides of the controversy brought on several pretrial motions. The determination of these motions at this time will serve to limit and clarify the factual and legal questions to be considered at the plenary trial, and this opinion is intended to encompass only the issues raised by these motions.

The major facet of plaintiffs' claims against the city is the statutory liability based upon the provisions of N.J.S. 2A:48--1, N.J.S.A. In addition, plaintiffs found their claims upon a charge of common law negligence. The current motions and this opinion, however, do not involve the validity of the cause of action or defenses in negligence. The scope of the court's determination at this time is limited to the legal issues raised by the motions addressed to the statutory cause of action.

I JUDICIAL NOTICE OF EXISTENCE OF RIOTS

The legal source of liability alleged by plaintiffs is N.J.S. 2A:48--1, N.J.S.A., which provides:

'When, by reason of a mob or riot, any property, real or personal, is destroyed or injured, the municipality if it has a paid police force, in which the mob congregates or riot occurs, or, if not in such a municipality, the county in which such property is or was situate, shall be liable to the person whose property was so destroyed or The Sine qua non for the city's responsibility under plaintiffs' factual allegations is the existence of a 'riot' in the City of Newark on the days in question and a causal connection between such riot and the claimed damages. Plaintiffs assert that the court should take judicial notice of the existence of 'riots' in the city between July 12 and 17, 1967 so as to obviate the necessity of proof thereof at the trial.

injured for the damages sustained thereby, recoverable in an action by or in behalf of such person.'

It is manifest that the term 'riot' in the statute is a word of art representing a determination based upon a mixed question of fact and law. 'Riot' is not defined in the legislation creating the cause of action, and resort must therefore be had to the common law definitions developed under the criminal law.

In State v. Lustig, 13 N.J.Super. 149, 80 A.2d 309 (App.Div.1951), the Appellate Division defined a riot in the context of an indictment for the common law offense of incitement to riot as follows:

'A riot is a disturbance of the peace by three or more persons unlawfully assembled together and acting in a violent and tumultuous manner.' (at p. 152, 80 A.2d at p. 310).

Feinstein v. City of New York, 157 Misc. 157, 283 N.Y.S. 335, 339 (Mun.Ct.1935), involved a claim for property damage against the city under the New York counterpart of N.J.S. 2A:48--1 et seq., N.J.S.A. The Municipal Court of the City of New York related and applied the definition of 'riot' that had been applied by English courts under the English Riot (Damage) Act (49 and 50 Vict., c. 38, § 2):

'* * * a riot consists of the following elements: (1.) number of persons, three at least; (2.) common purpose; (3.) execution or inception of the common purpose; (4.) an intent to help one another by force if necessary against any person who may oppose Corpus Juris Secundum defines the term as follows:

them in the execution of their common purpose; (5.) force or violence not merely used in demolishing, but displayed in such a manner as to alarm at least one person of reasonable firmness and courage.'

'* * * a tumultuous disturbance of the peace by three or more persons, assembled and acting with a common intent, either in executing a lawful private enterprise in a violent and turbulent manner, to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner.' 77 C.J.S. Riot § 1 (1952).

Cf. 9 Halsbury, The Laws of England 471 (1912). See Marshall v. City of Buffalo, 50 App.Div. 149, 64 N.Y.S. 411 (App.Div.1900).

At this juncture of the case the court is not called upon to verbalize the definitive language which will determine the meaning and limits of a riot within the intent of the applicable legislation. The foregoing definitions are reviewed rather for the purpose of setting the background for determining whether the court can or should take judicial notice of the existence of riots during the pertinent period.

Rule 9(2) of the Rules of Evidence (1967), N.J.S. 2A:84A--16, N.J.S.A., c. II, Rule 9(2), provides:

'Judicial notice may be taken, without request by a party, of (a) the decisional, constitutional, and public statutory law and rules of court of every other state, territory and jurisdiction of the United States, private acts and resolutions of the Congress of the United States and of the legislature of this State, and of every other state, territory and jurisdiction of the United States, and duly enacted ordinances and duly published regulations and determinations of governmental subdivisions or agencies of the United States, of this State, and of every other state, territory and jurisdiction of the United States; (b) records of the court in which the action is pending and of any other court of this State or federal court sitting in or for this State; (c) the law of foreign countries; (d) such facts as are so generally known or of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute; and (e) specific facts and propositions of generalized Plaintiffs contend that the court should take judicial notice of the existence of riots pursuant to the discretionary authority of section (d) of the aforesaid rule.

knowledge which are capable of immediate determination by resort to sources of reasonably indisputable accuracy.'

Although it is generally known that there were civil disturbances in various sections of the City of Newark in July of 1967 (see State v. Chandler, 98 N.J.Super. 241, 243, 236 A.2d 632 (Cty.Ct.1967), knowledge of such occurrences in the generic sense does not suffice to obviate the necessity of proof of riots in the statutory sense. The relevant proofs would involve the nature and extent of the disturbance, the number of persons involved, the presence or absence of a common purpose, the time and place of a particular disturbance, and the causal connection between such disturbance and the damage. Whether such riots existed and whether they proximately resulted in the damages claimed by plaintiffs are thus ultimate issues in this case to be determined by the trier of the facts in accordance with the applicable law. This court should not take judicial notice as such an ultimate fact question which depends upon definitive legal criteria. Plaintiffs' application is therefore denied.

II SUBROGATION CLAIMS

A substantial portion of the claims in these consolidated actions are subrogative in nature, having been instituted by insurance companies which covered the losses involved.

Defendant has moved to dismiss these subrogation claims on the ground that the statute contemplates payment only to the property owners who have suffered losses and should not be extended to afford recovery to insurance carriers in the absence of specific statutory authority. It is urged that since the statute is in derogation of common law, having created a cause of action which imposes liability without fault The insurance companies, on the other hand, point out that subrogation is a right arising Aliunde the statute, and that their subrogative claims are founded upon general equitable principles and contractual rights contained in the policies of insurance.

upon the municipality where none existed before, it must be strictly construed and recovery limited only to the property owners who are affirmatively included in the legislation.

Among the arguments advanced by the city in this connection is the assertion that N.J.S. 2A:48--7, N.J.S.A., which is a part of the overall legislation under consideration, grants a right of subrogation to the municipality against the rioters after payment to the claimants. It is suggested that this express provision for subrogation negates a legislative intent to permit recovery by any other subrogee against the city. This contention is without merit. This statutory right of subrogation is created in favor of the city against the active tortfeasors; it has no bearing upon the subrogative interest of an assignee of the claimant against the city. Such a statutory right of subrogation to the city does not Per se affirm or negate the subrogative rights of the insurance companies.

Whether or not the Legislature in 1864, when the statute was first adopted, even considered the question of compensation for subrogative claims is impossible to determine from the legislation or any available...