National Spring Co., Inc. v. Pierpont Associates, Inc.

• Decision Date: 18 November 1976
• Citation: 146 N.J.Super. 63,368 A.2d 973
• Parties: NATIONAL SPRING CO., INC., a corporation of the State of New Jersey, Plaintiff, v. PIERPONT ASSOCIATES, INC., et al., Defendants and Third-Party Plaintiffs, v. The JERSEY CITY FIRE DEPARTMENT et al., Third-Party Defendants. AKZONA, INC., et al., Plaintiffs, v. PIERPONT ASSOCIATES, INC., et al., Defendants and Third-Party Plaintiffs, v. The JERSEY CITY FIRE DEPARTMENT et al., Third-Party Defendants.
• Court: New Jersey Superior Court

Page 63

146 N.J.Super. 63

368 A.2d 973

NATIONAL SPRING CO., INC., a corporation of the State of New

Jersey, Plaintiff, v. PIERPONT ASSOCIATES, INC., et al., Defendants and Third-Party Plaintiffs, v. The JERSEY CITY FIRE DEPARTMENT et al., Third-Party Defendants.

AKZONA, INC., et al., Plaintiffs, v. PIERPONT ASSOCIATES, INC., et al., Defendants and Third-Party Plaintiffs, v. The JERSEY CITY FIRE DEPARTMENT et al., Third-Party Defendants.

Superior Court of New Jersey,

Law Division.

Nov. 18, 1976.

Jeffrey M. Kadish, Livingston, for defendant and third-party plaintiff F & J Paper Storage Corp. (Morgan, Melhuish, Monaghan & Spielvogel, Livingston, attorneys).

Paul W. Mackey, Jersey City for third-party defendant Jersey City (Dennis L. McGill, Jersey City, attorney).

BILDER, J.S.C.

This is a motion by the City of Jersey City to dismiss a third-party complaint on the ground that the city has immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1--1 Et seq. The basic action, which arises out of a fire loss, combines the uninsured loss of plaintiff and the subrogation claim of its insurance company.

A fire which occurred in a 20-building industrial complex on January 4, 1975 resulted in the destruction of property and interruption of business of National Spring Co., Inc., one of the tenants. The damage was sufficiently serious to require National to relocate its business of repairing and replacing automotive suspension systems to a new location.

It is National's contention that the fire did not originally involve the building wherein it was located but that the fire spread to and consumed its premises because of dangerous and inflammable conditions negligently created or permitted to continue by the owners of the complex and other tenants.

F & J Paper Storage Corp. conducted a waste paper and refuse business as a tenant in other premises within the complex. It has been charged with negligently contributing to the spread of the fire by storing baled waste paper within its premises, in violation of a Jersey City ordinance.

In December 1974, the month before the fire, members of the Jersey City Fire Department inspected a warehouse in the complex and observed that baled paper was stored throughout that building, in violation of a Jersey City ordinance. It was here that F & J was storing the baled paper which gives rise to plaintiff's complaint. Nothing was done with respect to this apparent violation other than notifying the landlord and taking steps to identify the tenants who were thus violating the ordinance.

F & J has brought a third-party complaint against the city and its inspectors for failure to take active steps to cause the paper to be removed and the violation to be eliminated. ¹

Third-party plaintiff exchews any notion it seeks to recover against the city for failure to enforce the ordinance or for making an inadequate or negligent inspection of property. As to the former, such a claim is clearly barred by N.J.S.A. 59:2--4, and as to the latter, it is clearly barred by N.J.S.A. 59:2--6. Rather, liability is predicated on a negligent failure to carry out a ministerial function, a claim which third-party plaintiff asserts is recognized by N.J.S.A. 59:2--3(d), citing Wuethrich v. Delia, 134 N.J.Super. 400, 341 A.2d 365 (Law Div.1975).

Third-party plaintiff argues that under Wuethrich and Bergen v. Koppenal, 52 N.J. 478, 246 A.2d 442 (1968), its pre-act precursor, a municipality can be liable for acts or omissions of a low-level discretionary or ministerial nature. It seeks to extrapolate from these two cases the concept that where a municipality has notice of a dangerous condition it has a ministerial duty to investigate and, Semble, take steps to rectify the condition. Thus, in the instant case third-party plaintiff contends that the city had notice of the storage of the paper and had a ministerial duty to take steps to abate the dangerous condition, for failure of which liability ensues for the resultant injury.

In Koppenal a township officer noted that an overhead traffic light on a state highway had broken loose and turned, so that its signal was misdirected. The township did nothing more than notify the State Highway Department when its office opened a few hours later. Before the dangerous condition was rectified a collision occurred, and a claim was asserted against the township for failure to act to protect the public until the State could take action. The trial court had dismissed the claim for failure to state a cause of action. In affirming the Appellate Division's reversal, the Supreme Court said:

* * * we think it fair to say that a duty may be found if a police officer learns of an emergent road condition which is likely not to be observed by a motorist and which holds an unusual risk of injury. In such circumstances the municipality must act reasonably to guard the traveler until the appropriate authority, here the State's own agencies, can take over. In such an inquiry, the municipality may prove the police did not act because of competing demands upon the police force. If such proof is in the case, the jury should be instructed that, with respect to the issue of competing demands, the jury may not disagree with the police deployment judgment unless it is palpably unreasonable. (at 480, 246 A.2d at 444)

Wuethrich represented another special situation of an emergent and high risk nature to the public where it was held a municipality could be found to have a duty to act unless its omission was due to competing demands upon its police. In that case the police were notified that an individual was menacing people with a...