Weinberg v. Dinger

• Decision Date: 02 April 1987
• Citation: 106 N.J. 469,524 A.2d 366
• Parties: , 55 USLW 2580 Paul F. WEINBERG, and Milton Gross, t/a Twin Bridge Apartments, Plaintiffs- Appellants, v. Dennis DINGER and Shirley Dinger, his wife, Associated Developers, Milton Schwartz and Associates and Symes Engineering, Defendants, and Penns Grove Water Company, Defendant-Respondent. Steven A. COLE and Betty L. Cole, his wife, Plaintiffs-Appellants, v. Dennis and Shirley DINGER, his wife, Township of Carneys Point, John Doe, a fictitious name for the building inspector of the Township of Carneys Point, Colonial Mortgage Company, t/a Twin Bridge Apartments, Associated Developers, Bala Cynwyd, P.A., and Milton Schwartz, Defendants, and Penns Grove Water Company, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 469

106 N.J. 469

524 A.2d 366, 55 USLW 2580

Paul F. WEINBERG, and Milton Gross, t/a Twin Bridge

Apartments, Plaintiffs- Appellants, v. Dennis DINGER and Shirley Dinger, his wife, Associated

Developers, Milton Schwartz and Associates and

Symes Engineering, Defendants,

and

Penns Grove Water Company, Defendant-Respondent.

Steven A. COLE and Betty L. Cole, his wife, Plaintiffs-Appellants, v. Dennis and Shirley DINGER, his wife, Township of Carneys

Point, John Doe, a fictitious name for the building

inspector of the Township of Carneys Point, Colonial

Mortgage Company, t/a Twin Bridge Apartments, Associated

Developers, Bala Cynwyd, P.A., and Milton Schwartz, Defendants,

and

Penns Grove Water Company, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Oct. 8, 1985.

Reargued Oct. 6, 1986.

Decided April 2, 1987.

Susan M. Danielski, Westmont, for appellants Paul F. Weinberg, et al. (Cozen & O'Connor, attorneys; Susan Danielski and Joshua Wall, on the briefs).

Mark L. Antin and Samuel A. Gennet, Roseland, for appellants Steven A. Cole, et al. (Gennet and Kallmann, attorneys).

Joel A. Greenberg, Atlantic City, for respondent (Horn, Kaplan, Goldberg, Gorny & Daniels, attorneys; Leonard C. Horn, of counsel).

Richard E. Shapiro, Director, Div. of Public Interest Advocacy, Trenton, for amicus curiae Dept. of the Public Advocate (Alfred A. Slocum, Public Advocate, attorney; Richard Shapiro, James Hirschhorn, Sp. Asst., Div. of Rate Counsel and Ida M. Castro, Asst. Deputy Public Advocate, on the brief).

William R. Holzapfel, Edison, for amicus curiae National Ass'n of Water Companies, New Jersey Chapter (LeBoeuf, Lamb, Leiby & MacRae, attorneys; William R. Holzapfel, and Ruth A. Bosek, on the briefs).

Carla Vivian Bello, Deputy Atty. Gen., for amicus curiae Board of Public Utilities (W. Cary Edwards, Atty. Gen., attorney; James J. Ciancia, Asst. Atty. Gen., of counsel).

The opinion of the Court was delivered by

STEIN, J.

In this appeal we reconsider the longstanding New Jersey rule immunizing private water companies from liability for their negligence in failing to provide to fire hydrants water pressure of sufficient force to extinguish a fire. We now hold that private water companies are no longer immune from such liability, except with respect to subrogation claims asserted by fire-insurance companies.

I

The facts are not in dispute. On November 23, 1980, a fire broke out at the Twin Bridge Apartments in Penns Grove, New Jersey. Because of inadequate water pressure at the nearby fire hydrants, fire fighters were unable to extinguish the flames. Consequently, the fire spread throughout the building, gutting the twelve-unit structure.

Weinberg, the owner of the property, and the Coles, residents in the building, brought suit against the Penns Grove Water Company (Penns Grove), a private water company that installed and maintained the fire hydrants and water mains in the municipality. Penns Grove operated under a filed tariff and pursuant to the rules and regulations of the Board of Public Utility Commissioners (BPUC). Plaintiffs alleged that Penns Grove negligently failed to inspect, maintain, and repair its water system, resulting in water pressure inadequate for fire fighting.

Penns Grove's 1976 tariff provided:

1. Pennsgrove Water Supply Company, Inc., * * * hereby adopts Regulations promulgated by the Board of Public Utility Commissioners * * *, insofar as they may be applicable to Water Utilities * * *.

* * *

* * *

8. The Company will use due diligence at all times to provide continuous service of the character or quality proposed to be supplied but in case the service shall be interrupted or irregular or defective or fail, the Company shall be liable and obligated only to use reasonably diligent efforts in light of the circumstances then existing to restore or correct its characteristics.

* * *

* * *

10. The standard terms and conditions contained in this tariff are a part of every contract for service entered into by the Company and govern all classes of service where applicable * * *.

Weinberg had signed a service contract with Penns Grove. ¹ Like the tariff, this contract incorporated the rules and regulations of the BPUC. One of these regulations, N.J.A.C. 14:9-2.2, entitled "Pressure and volume of water service," provides as follows:

(a) Each water utility shall supply water service at adequate pressure and volume to the curb, or the point of connection with the customer's service line.

(b) Each water utility shall maintain sufficient pressure and volume of water at all fire hydrants to assure adequate streams for the fighting of fires.

The trial court granted summary judgment in favor of defendant Penns Grove, and the Appellate Division affirmed, 216 N.J.Super. 409, 524 A.2d 403, both ruling on the basis of our decision in Reimann v. Monmouth Consol. Water Co., 9 N.J. 134, 87 A.2d 325 (1952). In Reimann we held that absent an express contractual or statutory provision, a private water company is not liable for negligently failing "to provide a sufficient supply of water at sufficient pressure to fire hydrants to extinguish a fire which is destroying an individual's property." Id. at 137-38, 87 A.2d 325 (citing Baum v. Somerville Water Co., 84 N.J.L. 611, 87 A. 140 (E. & A. 1913)).

II

As we explained in Reimann, the duty of a water company to provide water sufficient to extinguish fires may stem from three distinct sources. It may be imposed by contract, by statute, or by common law. 9 N.J. at 137, 87 A.2d 325.

The contractual source of duty springs from ordinary principles of contract construction. In Middlesex Water Co. v. Knappman Whiting Co., 64 N.J.L. 240, 45 A. 692 (1899), the Court of Errors and Appeals construed a contract between a business and a water company that explicitly provided for the supply of water to extinguish fires. The Court held that the water company's duty was unconditional:

[W]here the contract is express, as it is in this case--to furnish water sufficient for fire purposes--to do a thing not unlawful, the contractor must perform it, and if, by some unforeseen accident, the performance is prevented, he must pay damages for not doing it. [Id. at 251, 45 A. 692.]

However, in Hall v. Passaic Water Co., 83 N.J.L. 771, 85 A. 349 (1912), the Court of Errors and Appeals denied recovery to a mill for its fire loss, finding no express agreement between the mill and water company as to the provision of water for fire-fighting purposes. The court found the contract to be between the city and the water company, and thus found no cause of action on behalf of the mill. Id. at 774, 776, 85 A. 349 (citing Middlesex Water Co. v. Knappman Whiting Co., supra, 64 N.J.L. 240, 45 A. 692).

In denying recovery absent an express contractual provision, the Court in Baum v. Somerville Water Co., supra, 84 N.J.L. 611, 87 A. 14, also made the first authoritative pronouncement of common-law tort immunity for New Jersey water companies. The plaintiff in Baum sued a water company with which he had no contractual relation. He argued that "a duty was owed to the public to supply sufficient water of sufficient pressure to extinguish fires." Id. at 613, 87 A. 14. The court held:

[I]n the absence of contract no liability exists on the part of the defendant for the benefit of the plaintiff. The common law does not impose such a liability and we have not been pointed to any statute which creates it. In the absence of contract it does not exist. [Id. at 615, 87 A. 14.]

In Atlas Finishing Co. v. Hackensack Water Co., 10 N.J.Misc. 1197, 163 A. 20 (Sup.Ct.1932), a manufacturer sued a water company for breach of its contractual, common-law, and statutory duties to provide water to extinguish fires. The court there denied relief on any of the three asserted grounds. As to the contract claim, it found that there existed at most an implied contract for ordinary water service, but that this was insufficient to ground a claim for failure to provide water sufficient to put out fires. The Atlas court asserted that "[t]he primary business of a water company, so far as private customers are concerned, is to furnish water as a commodity * * *. [I]t was never contemplated that from the simple relation of distributor and customer, the former undertook to assume liability for failure to furnish water to extinguish fires." Id. at 1199-1200, 163 A. 20. "Such liability," the court continued, "can only arise out of an express contract. It does not arise by implication." Id. at 1201, 163 A. 20.

Expanding on its conclusion that the primary business of water companies is to supply water as a commodity, and not to extinguish fires, the Atlas court rejected plaintiff's claim based on common-law negligence:

It may very well be that the object of connecting the plaintiff's pipe lines with the defendant's water system was for the purpose of enabling the plaintiff to obtain a supply of water to combat fires on its premises, but as we have seen, the obligation of the defendant would merely be to supply water as a commodity, in the absence of an express contractual obligation to furnish it for fire extinguishing purposes. [Id. at 1202, 163 A. 20.]

Finally, the court rejected the claimed existence of a statutory duty based on the Public Utility Act. The Act provided: "[N]or shall any public utility as herein defined provide or maintain any service that is unsafe, improper or inadequate." Id. at 1203, 163 A. 20. The court held that this statute gave no private right of action to aggrieved individuals. Id.

We reconsidered the issue of a water company's common-law duty to supply water pressure of adequate force to fight fires in Reimann, supra, 9 N.J. at 134, 87 A.2d 325. There, plaintiff owned a recreation area that was destroyed by a fire when defendant failed to provide sufficient water pressure to the nearby hydrants. Summarizing prior New Jersey law on the subject, the Court said:

Before there can be...