B. W. King, Inc. v. Town of West New York

• Citation: 230 A.2d 133,49 N.J. 318
• Decision Date: 22 May 1967
• Docket Number: No. A--57,A--57
• Parties: B. W. KING, INC., a New York corporation, Plaintiff-Respondent, v. The TOWN OF WEST NEW YORK, a municipal corporation of New Jersey, Defendant-Appellant. HUDSON PROPERTY ASSOCIATES, INC., a New Jersey corporation, and Harbor Tank Storage Co., Inc., a New York corporation, Plaintiffs-Respondents, v. The TOWN OF WEST NEW YORK, a municipal corporation of New Jersey, Defendant-Appellant. MANTANK CORPORATION, a New Jersey corporation, Plaintiff-Respondent, v. The TOWN OF WEST NEW YORK, a municipal corporation of New Jersey, Defendant-Appellant.
• Court: United States State Supreme Court (New Jersey)

Page 318

49 N.J. 318

230 A.2d 133

B. W. KING, INC., a New York corporation, Plaintiff-Respondent, v. The TOWN OF WEST NEW YORK, a municipal corporation of New

Jersey, Defendant-Appellant.

HUDSON PROPERTY ASSOCIATES, INC., a New Jersey corporation,

and Harbor Tank Storage Co., Inc., a New York

corporation, Plaintiffs-Respondents, v. The TOWN OF WEST NEW YORK, a municipal corporation of New

Jersey, Defendant-Appellant.

MANTANK CORPORATION, a New Jersey corporation, Plaintiff-Respondent, v. The TOWN OF WEST NEW YORK, a municipal corporation of New

Jersey, Defendant-Appellant.

No. A--57.

Supreme Court of New Jersey.

Argued Jan. 23, 1967.

Decided May 22, 1967.

John H. Yauch, Newark, for plaintiffs-respondents, Hudson Property Associates, Inc., and B. W. King, Inc. (Yauch & Fagan, Newark, attorneys).

William F. Harth, Bloomfield, for plaintiff-respondent, Harbor Tank Storage Co., Inc. (Harth & Enright, Bloomfield, attorneys).

Robert H. Wall, Jersey City, for defendant-appellant.

The opinion of the court was delivered by

HANEMAN, J.

Plaintiffs sought the recovery of damages to their respective properties resulting from a fire which had its origin on lands owned by defendant. The jury having returned a verdict for plaintiffs, defendant moved for a judgment notwithstanding the verdict or in the alternative for a new trial. The trial court granted defendant's motion for judgment notwithstanding the verdict and granted the motion for a new trial conditionally, if the entry of that judgment should be reversed on appeal. Upon appeal, the Appellate Division reversed, reinstating plaintiffs' verdicts. This Court granted certification upon defendant's petition. 47 N.J. 424, 221 A.2d 224 (1966).

The facts as disclosed on the trial are as follows: On June 5, 1959 defendant held a $500,000 tax lien on certain lands then owned by the receivers of the New York, Ontario and Western Railway Co. In order to protect this lien, the defendant purchased the said lands at a public sale. The property was composed of two piers extending into the Hudson River and some adjacent high land. The piers consisted of an open lattice work trestle 30 feet high and 50 feet wide which extended 400 feet inland and a similar distance into the river. They were built for loading coal barges but had not been used for that purpose for at least 15 years.

Evidence as to the physical condition of the piers indicated that the wood was old and dry and in sections rotted and decayed. The state of disrepair was such that at least two persons had fallen through rotted or loose boards.

There was testimony that there was no 'housekeeping' practiced on the piers, i.e., that there existed wood debris, lumps of coal and coal dust thereon and that it had been brought to the attention of the municipality that people frequently trespassed on the piers. Although the area was visited every one-half hour by a police patrol car, the town neither maintained a watchman on the premises nor required a police officer to go thereon. There was a fire alarm box on the land near the piers but no such alarm nor any fire fighting or prevention equipment was available upon the piers. There was no fence or other means adopted to prevent access to the piers. The defendant did, however, post 'no smoking' signs. Barges were permitted to tie up to the piers for a fee of $1.50 per day.

On August 18, 1961 three teenage boys were trespassing on the southerly pier when one of them threw a lighted cigarette into a coal hopper. Shortly thereafter they noticed smoke in the vicinity of the hopper and discovered that a wooden beam was on fire. When they saw that they could not extinguish the fire they fled. Defendant's fire department was immediately thereafter notified. The fire rapidly consumed the piers and spread to adjoining real and personal property which plaintiffs owned.

Plaintiffs argue that the defendant municipality was engaged in a proprietary function in its ownership and management of the piers and was hence subject to liability. Plaintiffs proceed to rationalize that in the performance of this proprietary function, defendant breached its duty of reasonable care to prevent the spreading of fire to the property of others by failing to furnish adequate care, supervision and management of the property. The reason for plaintiffs' categorization of defendant's function as proprietary in connection with the pier ownership and management lies, of course, in the desire to avoid the necessity of proof of active wrongdoing and to bring defendant's conduct within the scope of municipal liability for torts on ordinary principles of negligence for failure to act. Schwartz v. Borough of Stockton, 32 N.J. 141, 160 A.2d 1 (1960).

The first problem, therefore, is whether defendant was under any duty. In fixing municipal liability for torts there has been a more or less blind adherence to the municipal proprietary-governmental distinction, without a real consideration of the reasons which gave birth to that doctrine and of whether, in the light of the general expansion of municipal activity, the doctrine has not outlived its usefulness. Municipal immunity from tort liability and the proprietary-governmental test have fallen into considerable disrepute. There is a consensus that most of the reasons for immunity have expired and that municipal liability should be subject to less restrictive limits. Further discussion of this topic is unnecessary because of past able discussion thereof. McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820, 88 A.L.R.2d 1313 (1960); Cloyes v. Delaware Twp., 23 N.J. 324, 129 A.2d 1, 57 A.L.R.2d 1327 (1957); Taylor v. N.J. Highway Authority, 22 N.J. 454, 126 A.2d 313, 62 A.L.R.2d 1211 (1956); Borchard, 'Government Liability in Tort,' 34 Yale L.J. 1, 129, 229 (1924--25); Davis, 'Tort Liability of Governmental Units,' 40 Minn.L.Rev. 751 (1956); 3 Davis, Administrative Law, § 25.07 (1958); 2 Harper and James, Law of Torts, § 29.6 (1956); 18 McQuillin, Municipal Corporations (3d ed. 1963), § 53.24a; Prosser, Torts (2d ed. 1964) § 109.

The difficulty with the articulation of a substitutionary rule lies in the ascertainment and expression of a perimeter for liability. It is most difficult if not impossible to academically visualize all the possible sets of circumstances which could give rise to a claimed municipal liability. There results an inability to state in advance a positive standard for that purpose. We have, however, recognized that certain municipal activities, regardless of how defined and tested, should continue to be immune from tort liability. Visidor Corp. v. Borough of Cliffside Park, 48 N.J. 214, 225 A.2d 105 (1966); Hoy v. Capelli, 48 N.J. 81, 222 A.2d 649 (1966); Fitzgerald v. Palmer, 47 N.J. 106, 219 A.2d 512 (1966); Amelchenko v. Borough of Freehold, 42 N.J. 541, 201 A.2d 726 (1964). The foregoing would perhaps be best resolved by legislative action. (See, e.g., R.S. 40:9--2, N.J.S.A.). However, in the absence of such action, we cannot and should not refuse to act. The problem should be approached by the court on a gradual case by case basis, permitting a new theory to metamorphize slowly. A firm rule can evolve with additional experience. The analytical approach ought not to be one of asking why immunity should not apply in a given situation but rather one of asking whether there is any reason why it should apply.

The case Sub judice is a classical example of the confusion which beclouds the issue under the traditional approach. The defendant acquired and held title to the premises solely in aid of its tax collecting power. The collection of taxes by a municipality has been held to be a governmental function. Muller v. Bayonne, 45 N.J.Eq. 237, 19 A. 614 (E. & A.1888); Plunkett's School for Boys v. City of Thomasville, 178 Ga. 625, 173 S.E. 656 (Sup.Ct.1934); City of San Angelo v. Deutsch, 126 Tex. 532, 91 S.W.2d 308 (Sup.Ct.1936); Black v. Baker, 130 Tex. 454, 111 S.W.2d 706 (Comm.App.1938); 18 McQuillin, Municipal Corporations (3d ed. 1963), § 53.54. On the other hand, defendant permitted vessels to tie up to the piers as had its individual predecessor in title for the nominal charge of $1.50 per day. The operation of a dock or pier with the charge of a fee or toll for wharfage has been held to be a proprietary function. Leemon v. South Jersey Port Commission, 145 F.Supp. 828 (D.N.J.1956); City of Orange, Tex. v. Lacoste, Inc., 210 F.2d 939 (5 Cir. 1954); City of Shawnee v. Faulkner, 205 Okl. 647, 240 P.2d 100 (Sup.Ct.1952); Heitman v. Lake City, 225 Minn. 117, 30 N.W.2d 18 (Sup.Ct.1947); 63 C.J.S. Municipal Corporations § 911. The activity of the municipality, therefore, could logically be classified as either proprietary or governmental by applying classical tests under the foregoing authorities. Realistically, the purpose of the acquisition of title was not to furnish any public service therewith but rather for the collection of pastdue taxes by the eventual sale of the premises. We can find no logical reason why the municipality should not be subject to the same duties and liabilities in relation to surrounding properties as are incurred by individuals in the ownership of realty, whether the capacity in which title to the real estate held by the municipality is denominated proprietary or governmental. 18 McQuillin Municipal Corporations (1962), §...