City of Bridgeton v. B. P. Oil, Inc.

• Decision Date: 17 December 1976
• Citation: 369 A.2d 49,146 N.J.Super. 169
• Parties: , 7 Envtl. L. Rep. 20,357 CITY OF BRIDGETON, in the County of Cumberland, a municipal corporation of the State of New Jersey, Plaintiff, v. B.P. OIL, INC., a corporation of the State of Ohio, authorized to do business in New Jersey, and Andrews Oil Company, Inc., a corporation of the State of New Jersey, Defendants.
• Court: New Jersey Superior Court

Page 169

146 N.J.Super. 169

369 A.2d 49, 7 Envtl. L. Rep. 20,357

CITY OF BRIDGETON, in the County of Cumberland, a municipal corporation of the State of New Jersey, Plaintiff, v. B.P. OIL, INC., a corporation of the State of Ohio authorized to do business in New Jersey, and Andrews Oil Company, Inc., a corporation of the State of New Jersey, Defendants.

Superior Court of New Jersey Law Division.

Dec. 17, 1976.

Allan H. Harbert, Bridgeton, for plaintiff.

Ira G. Megdal, Cherry Hill, for defendant B.P. Oil, Inc. (Hyland, Davis & Reberkenny, Cherry Hill, attorneys).

Michael Brooke Fisher, Bridgeton, for defendant Andrews Oil Co., Inc. (Lummis, Moore, Fisher, Pancari & Pagliughi, Bridgeton, attorneys).

MILLER, J.C.C., Temporarily Assigned.

Two summary judgment motions have been brought in a case which presents the following factual situation. Defendants B.P. Oil Company, Inc. and Andrews Oil Company, Inc. are the owner and lessee, respectively, of real estate located in the City of Bridgeton. Leaks occurred in certain gasoline or fuel oil tanks located thereon. The City of Bridgeton used its employees to prevent the spread of the resulting oil spill. Its fire department was present at the site for a week and it expended money for extensive overtime work. The city further purchased special equipment and chemicals for this purpose. In this action the municipality is attempting to collect these ascertained expenses from the two named defendants. Each defendant has moved for summary judgment.

The first motion is brought by Andrews Oil, the lessee of the premises where the leak occurred. It claims that discovery demonstrates that it was not negligent and further argues that, in any case, the city does not have the power to charge individuals for expenses incurred by its fire department. Thus the first issue for resolution is whether either or both of the defendants would be liable to a proper plaintiff under these circumstances. The second issue is whether the city is a proper plaintiff in this suit.

In considering the question of liability, for the purposes of this summary judgment motion all facts must be construed in a light most favorable to plaintiff. Judson v. Peoples Bank Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954). An unresolved fact issue exists as to whether or not the equipment on the property was in good repair or was in such a state of disrepair as to have been the cause of the leak.

A consideration of common law principles regarding the storage of dangerous substances on the land is informative. In Exner v. Sherman Power Const. Co., 54 F.2d 510 (2 Cir. 1931), the court considered a fact situation wherein dynamite which defendant kept on its property exploded, injuring plaintiff. The court noted that there was a question of whether there was an absolute liability under common law for the damages caused by the blast. It stated that there should not be different standards of liability for the results of an explosion depending on whether the explosion was a result of storing dynamite or a result of using it in blasting operations. In holding that imposing absolute liability is not out of accord with any general principle of law, the court stated:

As Professor Holdsworth has said: 'The dominant idea of Anglo-Saxon law' was 'that man acts at his peril.' 2 History of English Law, 42. See, also, Pollock on Torts (10th Ed.) 15. Accordingly the earlier forms of action such as trespass and trespass quare clausum fregit allowed recovery for a direct invasion of person or property without regard to fault. After the later action 'sur case' arose, there was a growing tendency to excuse an act causing damage if the defendant was without fault. But, in trespass, fault ordinarily remained a matter of no consequence, and even in cases of damage to the person the early decisions prior to Brown v. Kendall, 6 Cush. (60 Mass.) 292, seemed to have imposed liability where there was no negligence. Dickenson v. Watson, T. Jones, 205. Although liability for injury to the person has not in most instances survived except where there has been fault, there still remains absolute liability for trespasses to real estate and for actionable wrongs committed by servants no matter how carefully they are selected by the master. The extent to which one man in the lawful conduct of his business is liable for injuries to another involves an adjustment of conflicting interests. The solution of the problem in each particular case has never been dependent upon any universal criterion of liability (such as 'fault') applicable to all situations. If damage is inflicted, there ordinarily is liability, in the absence of excuse. When, as here, the defendant, though without fault, has engaged in the perilous activity of storing large quantities of a dangerous explosive for use in his business, we think there is no justification for relieving it of liability, and that the owner of the business, rather than a third person who has no relation to the explosion, other than that of injury, should bear the loss. The blasting cases seem to afford ample analogies and to justify this conclusion. (at 514)

The courts in Rylands v. Fletcher, 3 H. & C. 774 (Exch.1865), rev'd L.R. 1 Exch. 265 (1866), rev'd L.R. 3 H.L. 330 (1868), is the first case to consider in depth the issue of liability without fault.

In that case defendants constructed a reservoir to collect water. The reservoir was built over a shaft of an abandoned coal mine. After the water collected in the reservoir, the water broke into the shaft, flowed into the abandoned mine on defendant's land, and from there flowed into plaintiff's mine, doing damage there. The Court of Exchequer held that defendants were not negligent and that it was not a situation where the landholder was liable for the action of an independent contractor. Therefore, it did not impose liability. The Exchequer Chamber reversed the decision of the lower court and the House of Lords affirmed its reversal. The controlling rule of law was stated in the Exchequer Chamber.

We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of Vis major, or the act of God, but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.

Applying this rule in to the case at bar, a lessor who collected and kept the oil on his land, knowing that it was likely to do mischief if it escaped, kept it at his peril, and when it escaped became liable for the damages it caused. There is no evidence at this state in the proceedings to show that the escape of the oil was proximately caused by anything else such as fault of the plaintiff or an act of God.

Our New Jersey courts have followed a version of the rule stated in Rylands v. Fletcher, supra. In Brownsey v. General Printing Ink Corp., 118 N.J.L. 505, 193 A. 824 (1937), plaintiff was injured when a slab of ice and snow fell off defendant's garage roof onto his neighbor's land where plaintiff was an invitee. There was no trough or structural safeguard on the roof to prevent such accident. The court cited Rylands v. Fletcher, nothing that the case had been accepted in some jurisdictions, but rejected in others. It stated that in New Jersey negligence principles normally govern the relationship of owners of contiguous plots of land. The court held (at 511, 193 A. at 828) that the proper factual inquiry was whether 'a reasonably prudent man circumstanced as appellant was and mindful of his legal duty not to subject his neighbor to an unreasonable hazard, would have so acted * * *.' The rule, as thus stated, indicates a reliance on negligence principles, but imposes a higher than normal standard for his action when a person constructs a hazardous condition. In Black v. Public Services Elec. & Gas Co., 56 N.J. 63, 265 A.2d 129 (1970) the court noted that (at 76, 265 A.2d at 135) when there is a duty to anticipate danger, a sequential duty to 'exercise care commensurate with the risk inevitably arises.'

Restatement, Torts 2d follows the rule set forth in Rylands v. Fletcher, supra. In this case the oil in the tanks belonged to Andrews Oil, the the lessee. It is unclear from the facts presented which defendant was responsible for the construction of the facilities. Therefore, two sections of the Restatement are relevant here:

§ 364. Creation or Maintenance of Dangerous Artificial Conditions

A possessor of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land, which the possessor realizes or should realize will involve an unreasonable risk of such harm, if

(a) the possessor has created the condition, or

(b) the condition is created by a third person with the possessor's consent or acquiescence while the land is in his possession, or

(c) the condition is created by a third person without the possessor's consent or acquiescence, but reasonable care is not taken to make the condition safe after the possessor knows or should know of it. (2 Restatement Torts 2 d, § 364 at 259--260 (1965))

§ 366. Artificial Conditions Existing When Possession is Taken.

One who takes possession of land upon which there is an existing structure or other artificial condition unreasonably dangerous to persons or property outside of the land is subject to liability for physical harm caused to them by the condition after, but only after,

(a) the possessor knows or should know of the condition, and

(b) he knows or should know that it exists without the consent of those affected by it, and

(c) he has...