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

• Decision Date: 25 June 1969
• 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 491

106 N.J.Super. 491

256 A.2d 110

A & B AUTO STORES OF JONES STREET, INC., a Corporation, et

al., Plaintiffs, v. CITY OF NEWARK, Defendant.

Superior Court of New Jersey

Law Division.

June 25, 1969.

Herman D. Michels, Samuel A. Gennet, and Marvin A. Sachs, Newark, for plaintiffs (Feuerstein & Sachs, Samuel A. Gennet, Newark, Lieb & Teich, East Orange, Jung, Selikoff, Rathman & Dwyer, Lum, Biunno & Tompkins, Newark, Lamb, Blake, Hutchinson & Dunne, Jersey City, Sandles & Sandles, South Orange, Shurkin, Hersh & Fershing, Skoloff & Wolfe, Herman D. Michels, and Zucker, Lowenstein, Gurney & Zucker, Newark, 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.

This matter was tried before the court without a jury on issues of liability which could be appropriately decided as common questions of law and fact in the consolidated claims for property damage resulting from alleged riots in the City of Newark between July 12 and 17, 1967. Many of the legal issues were previously decided by this court in A & B Auto Stores, Inc. v. City of Newark, 103 N.J.Super. 559, 248 A.2d 258 (1968). This plenary trial was concerned with the evidential exploration of the two basic issues of liability against the city:

1. Is the city liable in common law negligence?

2. Was there a riot or riots within the contemplation of the statutory liability created by N.J.S. 2A:48--1 (N.J.S.A.)?

I

The evidence pertaining to the negligence count pointed generally to the alleged failure of the Newark police to Without detailing the factual support for those allegations, it is evident that the crux of the negligence charge is bottomed upon the failure of the city to act in the respects outlined above to restrain the rioters and to prevent and deter them from causing the extensive damages and losses sustained by the plaintiffs.

undertake appropriate steps and preparations to control the disturbances in a more efficient manner. Among the deficiencies asserted by plaintiffs were the failure to provide and equip the police with riot equipment of various types, such as riot sticks, shotguns, chemical devices, tear gas, gas masks, and the like. In addition, there was some evidence of superficial or inadequate training of police personnel in riot control, the failure to assign sufficient police personnel to the riot areas, the failure to seek outside assistance at an appropriate time, the failure to ease tensions by community activities through the mayor and other officials, the failure to create adequate planning for riot control, and the inability of the police to prevent and control much of the damage and looting which took place during the hectic days of July 1967.

Upon the presentation of all the evidence, the court granted a motion for judgment as a matter of law in favor of the city on the negligence count, and concluded that the failure of a municipality to prevent crimes, control mobs, apprehend criminals or prevent damage to property or persons encompasses a governmental function in the conduct of which the city is immune from common law tort liability. Prather v. City of Lexington, 52 Ky. 559 (Ct.App.1852); Ward v. City of Louisville, 55 Ky. 184 (Ct.App.1855); Western College, etc. v. Cleveland, 12 Ohio St. 375, 377 (Sup.Ct.1861); Gianforte v. City of New Orleans, 61 F. 64, 66, 24 L.R.A. 592 (C.C.E.D.La.1894); Marshall v. City of Buffalo, 50 App.Div. 149, 152, 64 N.Y.S. 411, 413 (App.Div.1900); Kretchmar v. City of Atchison, 133 Kan. 198, 200, 299 P. 621, 622 (Sup.Ct.1931); Shake v. Board of Commissioners of Sullivan County, 210 Ind. 61, 63, 1 Prior to adoption of the New Jersey Civil Riot Act (N.J.S.A. 2A:48--1 et seq.) it was settled law in New Jersey as in other states that a municipality was immune from tort liability for damage caused by mobs or riots. Wells Fargo & Co. v. Mayor, etc. of Jersey City, 207 F. 871, 878 (D.N.J.1913), affirmed 219 F. 699, 700 (3 Cir. 1915), certiorari denied 239 U.S. 650, 36 S.Ct. 284, 60 L.Ed. 485 (1916).

N.E.2d 132, 133 (Sup.Ct.1936); 146 West 117th Street v. City of New York, 50 N.Y.S.2d 569, 570 (N.Y.City Ct.1944); Mr. Paint Shop, Inc. v. City of Rochester, 44 Misc.2d 684, 685, 254 N.Y.S.2d 728, 730 (Sup.Ct.1964); Hart's Food Stores v. City of Rochester, 44 Misc.2d 938, 939, 255 N.Y.S.2d 390, 391 (Sup.Ct.1965); Jones v. County of Herkimer, 51 Misc.2d 130, 135, 272 N.Y.S.2d 925, 931 (Sup.Ct.1966); Roy v. Hampton, 108 N.H. 51, 52, 226 A.2d 870, 871 (Sup.Ct.1967).

It is for that reason that the Legislature acted to create liability to a limited extent where none had previously existed. And, in the ordinary course of events, it would be a matter of elementary logic to reach the conclusion that the creation of the statutory cause of action negates the existence of a common law cause of action founded in negligence. However, plaintiffs assert that the pre-1864 governmental immunity has been eroded to such a substantial extent in the modern development of municipal law in this State that the court should reexamine the defense without regard to the effect of the statute and the immunity law existing at the time of its adoption.

It is manifest, of course, that common law municipal immunity has fallen into disfavor and that the current legal trend is to treat the ordinary torts of municipalities and their agents in the same manner as those of private individuals and corporations. See B. W. King, Inc. v. Town of West New York, 49 N.J. 318, 230 A.2d 133 (1967); Jackson v. Hankinson, 51 N.J. 230, 238 A.2d 685 (1968); Bergen v. Koppenal, 97 N.J.Super. 265, 235 A.2d 30 (App.Div. 1967), affirmed as modified 52 N.J. 478, 246 A.2d 442 (1968).

Nevertheless, despite this trend, our courts have recognized as a matter of policy and fairness the necessity to insulate municipalities from liability in certain areas of activity which involve the process of decision and policy-making at the legislative or administrative level. For example, the determination of how, when and where to deploy snow removal equipment and personnel is a function involving governmental discretion allocated to the judgment of the local authorities, and should not be reviewed by the courts in a tort damage suit. Amelchenko v. Borough of Freehold, 42 N.J. 541, 201 A.2d 726 (1964); Miehl v. Darpino, 53 N.J. 49, 247 A.2d 878 (1968). Similarly, the decisions of a municipality whether to remove a traffic light at an intersection, Hoy v. Capelli, 48 N.J. 81, 222 A.2d 649 (1966), or whether to create a road having a certain number of lanes or dividers or traffic lights or circles, Fitzgerald v. Palmer, 47 N.J. 106, 109, 219 A.2d 512 (1966), or whether to designate a street as a one-way thoroughfare, Visidor Corp. v. Borough of Cliffside Park, 48 N.J. 214, 225 A.2d 105 (1966), certiorari denied 386 U.S. 972, 87 S.Ct. 1166, 18 L.Ed.2d 132 (1967), fall into the category of activities in which municipalities are immune from tort liability.

It is, therefore, evident in this State that with regard to certain of its activities, a municipality should not be subject to tort liability regardless of how those activities are defined or labeled. In Amelchenko, supra, Justice Francis pointed out some of the reasons for the continuation of immunity in snow removal cases as follows:

'Moreover, when a street department is established, obviously the governing body determines the number of employees to be assigned to it and the amount of snow removal equipment to be purchased and made available for ordinary municipal needs. That determination is a matter of judgment committed under our system of government to the local authority and it should not be interfered with by the courts in a tort damage suit.

Moreover, establishment of a general method of handling snowstorms is a matter of planning. The decision adopting a procedure regulating when, where and in what order of priority the equipment and personnel are to be used in dealing with them is legislative or governmental in nature. Such decisions cannot be subject to review in A similar approach is expressed by Chief Justice Weintraub in Fitzgerald, supra:

tort suits for damages, for this would take the ultimate decision-making authority away from those who are responsible politically for making the decisions. The extent and quality of governmental service to be furnished is a basic governmental policy decision. Public officials must be free to determine these questions without fear of liability either for themselves or for the public entity they represent. It cannot be a tort for government to govern.' (42 N.J. at pp. 549--550, 201 A.2d, at p. 730)

'A private entrepreneur may readily be held for negligent omissions within the chosen ambit of his activity. But the area within which government has the power to act for the public good is almost without limit, and the State has no duty to do everything that might be done. Rather there is a political discretion as to what ought to be done, as to priorities, and as to how much should be raised by taxes or borrowed to that end. If government does act, then, when it acts in a manner short of ordinary prudence, liability could be judged as in the case of a private party. So if a road were constructed of a design imperiling the user, the issue of fault would present no novel problem. But whether a road should have four or six or eight lanes, or there should be dividers, or circles or jughandles for turns, or traffic lights, or traffic policemen, or a speed limit of 50 or 60 miles per hour--such matters involve discretion and revenue and are committed to the judgment of the legislative and executive branches. As to such matters, the question is whether a judge or jury could review the policy or political decisions involved without in effect taking over the responsibility and power of those other branches.' (47 N.J.,...