Bosch v. Hain

• Decision Date: 11 February 1982
• Citation: 445 A.2d 465,184 N.J.Super. 204
• Parties: Billy BOSCH and Aida Rivera, Plaintiffs, v. Isaac and Genovea HAIN, The City of Hoboken, State of New Jersey, John A. Doe, John B. Doe, Defendants. Placedo SOTO, as administratrix ad prosequendum for the heirs-at-law of Nicholas Torres et al., Plaintiff, v. Isaac HAIN and Genovea Hain, Defendants. Ceteram DREPAUL, as administratrix ad prosequendum of the Estates of Jacob Drepaul et al., Plaintiffs, v. CITY OF HOBOKEN, Municipal Corporation, et al., Defendants.
• Court: New Jersey Superior Court

Page 204

184 N.J.Super. 204

445 A.2d 465

Billy BOSCH and Aida Rivera, Plaintiffs, v. Isaac and Genovea HAIN, The City of Hoboken, State of New

Jersey, John A. Doe, John B. Doe, Defendants.

Placedo SOTO, as administratrix ad prosequendum for the heirs-at-law of Nicholas Torres et al., Plaintiff, v. Isaac HAIN and Genovea Hain, Defendants.

Ceteram DREPAUL, as administratrix ad prosequendum of the

Estates of Jacob Drepaul et al., Plaintiffs, v. CITY OF HOBOKEN, Municipal Corporation, et al., Defendants.

Superior Court of New Jersey, Law Division Hudson County.

Decided Feb. 11, 1982.

Frederick J. Dennehy, Woodbridge, for plaintiffs Bosch and Rivera (Wilentz, Goldman & Spitzer, Woodbridge, attorneys).

Bennett J. Wasserman, Fair Lawn, for plaintiffs Drepaul.

Peter E. Markens, Deputy Atty. Gen., for defendant State of N. J. (in Bosch) (James R. Zazzali, Atty. Gen., attorney).

Howard M. Nirenberg, Deputy Atty. Gen., for defendant State of N. J. (in Drepaul) (James R. Zazzali, Atty. Gen., attorney).

Jay M. Liebman, Asst. County Counsel, Jersey City, for defendant County of Hudson (in Drepaul) (Francis P. Morley, County Counsel, Jersey City, attorney).

Carl F. Schaefer, Hoboken, for defendant City of Hoboken (Lawrence E. Florio, City Atty., Hoboken, attorney).

Charles M. James, Jersey City, for defendant Hain (James & Addas, Jersey City, attorneys).

O'BRIEN, A. J. S. C.

On January 20, 1979, 21 people were killed and others injured in a fire in the City of Hoboken. These three suits are for the wrongful death and personal injuries suffered by some of the victims of this fire who were occupants of a multiple dwelling owned by defendants Isaac and Genovea Hain. Pursuant to the New Jersey Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 et seq., the building was inspected on October 31, 1978. This inspection was performed by the Hoboken Housing Bureau in accordance with an agreement between the State and the City of Hoboken, authorized by N.J.S.A. 55:13A-21.

The inspection revealed approximately 190 violations, many of which were later characterized as "life threatening" by the chief fire inspector. In accordance with customary procedure, a report was forwarded to the New Jersey Department of Community Affairs which issued a standard form "Notice of Violation" to defendant owners about 30 days after the inspection. The terms of the notice allowed defendant owners 60 days, or until February 6, 1979, to remedy the violations. N.J.S.A. 55:13A-13. Within that time the fire occurred.

According to the chief fire inspector, the fire was caused by three children from the fourth- and fifth-floor apartments, who allegedly set fire to newspapers and rubbish on the second- and third-floor landings.

Procedural History

The initial case was filed on March 21, 1980 by Billy Bosch and Aida Rivera against the owners of the building, the city and the State. On July 10, 1980 a separate complaint was filed by Placedo Soto et al. against the owners of the building, but did not name any public body as a defendant. On November 24, 1980 the Drepaul case was filed, naming as defendants, in addition to the owners, the City of Hoboken, County of Hudson and the State of New Jersey. On May 19, 1981 the Bosch and Soto cases were consolidated. The Drepaul case had not been consolidated.

The public entity defendants in the Drepaul case moved for summary judgment, which motion was heard on September 25, 1981. Defendants based their argument chiefly upon the holdings in Jennifer Brothers, etc. v. Highlands, 178 N.J.Super. 146, 428 A.2d 528 (App.Div.1978), and National Spring Co. v. Pierpont Associates, Inc., 146 N.J.Super. 63, 368 A.2d 973 (Law Div. 1976). Drepaul's attorney did not present any substantial argument against application of the principles stated in those cases and accordingly the motions for summary judgment were granted.

Thereafter the City of Hoboken and the State of New Jersey, defendants in the Bosch case, moved for summary judgment. (Curiously the State of New Jersey is represented by a different Deputy Attorney General in the Bosch case than the Deputy appearing in the Drepaul case.) In opposition to that motion, the attorney for plaintiffs Bosch and Rivera advanced a number of theories of liability which had not been raised in the Drepaul action. These arguments advocating imposition of liability against public entities under certain circumstances were so persuasive that the court was moved to reconsider the ruling in the Drepaul matter as well.

Accordingly, a hearing was held with all counsel present from both the Bosch and the Drepaul cases (including the two separate Deputy Attorneys General). All parties agreed that the County of Hudson could not be held liable under any theory and thus the summary judgment previously entered in favor of the county was confirmed.

This case raises substantial questions as to the construction of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. The court is informed in the comment which accompanies N.J.S.A. 59:2-1 that the approach should now be "whether an immunity applies and if not, should liability attach." Further, the court is admonished that in utilizing this approach it exercise restraint in the acceptance of novel causes of action against public entities. Thus, although N.J.S.A. 59:2-2 appears to establish sweeping vicarious liability for the acts of public employees, such general liability is, of course, subject to and circumscribed by the express immunity provisions of the act. See Setrin v. Glassboro State College, 136 N.J.Super. 329, 346 A.2d 102 (App.Div.1975), and Wuethrich v. Delia, 155 N.J.Super. 324, 382 A.2d 929 (App.Div.1978), certif. den., 77 N.J. 486, 391 A.2d 500 (1978).

Defendants first rely upon the inspection immunity contained in N.J.S.A. 59:2-6. That section reads as follows:

A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property; provided, however, that nothing in this section shall exonerate a public entity from liability for negligence during the course of, but outside the scope of, any inspection conducted by it, nor shall this section exonerate a public entity from liability for failure to protect against a dangerous condition as provided in Chapter 4.

With respect to the last phrase in this section, the comment states:

The inclusion of the reference to Chapter 4 is intended to indicate that this immunity shall not apply when dangerous conditions of public property are involved. In those cases Chapter 4 of this Act provides the controlling principles of liability.

Due to this reference, chapter 4 must be read in pari materia with N.J.S.A. 59:2-6.

N.J.S.A. 59:4-2 provides as follows:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) a public entity had actual or constructive notice of the dangerous condition under § 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.

Plaintiff contends that a dangerous condition did in fact exist on the property; that it was public property, as defined in N.J.S.A. 59:4-1(c); that the dangerous condition was a proximate cause of the injuries, and that failure by defendant to protect against the dangerous condition was palpably unreasonable. This contention is based upon the allegedly "life threatening" nature of the housing code violations and the long delay after the inspection before anything was done, even sending a written notice to the owner as mandated by N.J.S.A. 55:13A-13.

In order for chapter 4 to be brought into play in construing N.J.S.A. 59:2-6, the property upon which the dangerous condition exists must be "public" property. This determination hinges upon whether defendants had sufficient title or control over the premises to label it "public," as defined in N.J.S.A. 59:4-1(c).

It is, of course, conceded that neither the city nor the State had title to the property in question. Plaintiff contends that the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 et seq., compels a finding of regulatory control over the property by defendant public entities. Pursuant to this law, defendants are empowered to conduct inspections, N.J.S.A. 55:13A-13, promulgate building regulations for health and safety, N.J.S.A. 55:13A-7, and require procurement of a certificate of registration, N.J.S.A. 55:13A-12.

In addition to these administrative mandates, it is further noted that the public entity has a variety of enforcement mechanisms to assist in the abatement of violations. For example, defendant is required to issue written notice to the owner stating in what manner it does not comply with the act or regulations and fixing a date for compliance. N.J.S.A. 55:13A-13. Furthermore, if such violations are not remedied, the Commissioner has the authority to seek injunctive relief, N.J.S.A. 55:13A-16, and to issue an order directing that the multiple dwelling be vacated, N.J.S.A. 55:13A-17, if inspection reveals "an imminent hazard to health, safety or welfare of the occupants." In total, plaintiff argues that the Hotel and Multiple Dwelling Law has provided defendant with sufficient regulatory control over the...