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Adler''s Quality Bakery Inc. v. Gaseteria Inc.

Decided: March 22, 1960.


On appeal from Superior Court, Law Division.

For affirmance in part and reversal in part -- Justices Burling, Jacobs, Proctor, Hall and Schettino. Dissenting in part -- Chief Justice Weintraub, and Justice Francis. The opinion of the court was delivered by Burling, J. Weintraub, C.J., and Francis, J. (dissenting in part).


[32 NJ Page 64] This case arises out of a collision of an airplane with a television tower located in North Bergen Township, Hudson County, New Jersey on November 8, 1956. Numerous claims were made by persons living or working in the immediate area of the tower involving real and personal property and incidental pecuniary losses allegedly caused by the precipitation to earth of the debris of the accident. The Superior Court, Law Division, by its order dated August 20, 1957, adopted the following procedure: a complaint was filed by one of the plaintiffs, Adler's Quality Bakery, Inc.; the other parties claiming damages, 25 in number, were to be considered parties plaintiff but were named only in a schedule attached to the complaint, which schedule lists the name and address of each party, the nature of the claim, and the amount of damages sought. The complaint alleges that Gaseteria, Inc., the defendant, was the owner of the airplane involved in the collision, and thus was allegedly absolutely liable under the provisions of N.J.S.A. 6:2-7 for the damages sustained by the plaintiffs. In its answer, Gaseteria admits ownership of the airplane in question, and by a supplement to its answer, permitted by an order of the Superior Court, Law Division, dated March 7, 1959, attacks the constitutionality of the

statute on which the plaintiffs' theory of absolute liability is based.

On November 25, 1957 Gaseteria filed a third-party complaint against RKO Teleradio Pictures, Inc., hereinafter referred to as RKO, alleging that the latter was in control and possession, at the time of the collision, of the television tower into which the airplane crashed, and seeking contribution from RKO as a joint tortfeasor responsible for a pro rata portion of all damages recovered by plaintiffs against Gaseteria. RKO thereupon filed a fourth-party complaint against Bonded Gas & Oil System, Inc., hereinafter referred to as Bonded, and Roscoe Turner Aeronautical Corporation, hereinafter referred to as Roscoe Turner, seeking contribution against each under the Joint Tortfeasors Contribution Law, N.J.S. 2 A:53 A -1 et seq. According to the pleadings of RKO it is alleged that Bonded and Roscoe Turner maintained, managed, operated and controlled the aircraft in question. Service of process was not made personally upon the fourth-party defendants, but rather by serving the summons and complaint on the Secretary of State pursuant to N.J.S.A. 6:5-3. Bonded and Gaseteria filed a cross-claim for contribution against RKO. In its answer to the fourth-party complaint, Roscoe Turner offers three separate defenses, all attacking the effectiveness of service of process and denying the jurisdiction of the court.

On February 2, 1959 plaintiffs filed a motion for summary judgment against Gaseteria, together with affidavits in support thereof. By its order filed March 9, 1959, the Superior Court, Law Division, entered a summary judgment against Gaseteria on the issue of liability, holding Gaseteria absolutely liable under the terms of N.J.S.A. 6:2-7, and rejecting its constitutional attacks on that statute. From this order, Gaseteria filed an appeal with the Superior Court, Appellate Division.

On July 14, 1959 the Superior Court, Law Division, entered an order disposing of various motions made by the parties. Roscoe Turner moved the court to determine

the effectiveness of the service of process made on it, and to dismiss the fourth-party complaint for failure to state a claim on which relief could be granted. Gaseteria moved for leave to amend its third-party complaint against RKO, primarily to add a count for indemnification. RKO moved the court to dismiss the third-party complaint and the cross-claim for failure to state a claim on which relief could be granted, and further moved to amend its fourth-party complaint to include a count for indemnification in the event that Gaseteria's motion so to amend the third-party complaint was granted. The trial court rejected Roscoe Turner's argument that it was not properly before the court, holding that N.J.S.A. 6:5-3 was applicable and that service of process made in accordance with the terms of that statute was sufficient to give the court in personam jurisdiction over the party so served. In addition, the trial court granted RKO's motion to dismiss the third-party complaint and cross-claim and granted Roscoe Turner's motion to dismiss the fourth-party complaint. The trial court also denied Gaseteria's motion to amend its third-party complaint to include a count for indemnification, and denied RKO's motion to the same effect.

The Superior Court, Appellate Division, by its order of September 3, 1959, granted leave to appeal to Gaseteria, Bonded, Roscoe Turner, and RKO from those portions of the trial court's order of July 14, 1959 which were adverse to the respective parties. These appeals were consolidated with the appeal made by Gaseteria from the trial court's order of March 7, 1959 granting plaintiffs' motion for summary judgment on the issue of liability. While these appeals were pending in the Superior Court, Appellate Division, and before argument there, we certified them on our own motion.

There are several distinct questions, dealing with the various orders rendered by the trial court, to be considered on this appeal. The first is the order granting summary judgment in favor of plaintiffs and against Gaseteria on

the issue of liability. The second is the dismissal of the third- and fourth-party complaints and cross-claim by Gaseteria and Bonded for failure to state a claim on which relief could be granted. The third is the denial of Gaseteria's and RKO's motion to amend their respective complaints to include a count for indemnification. The fourth is the denial of Roscoe Turner's objections to the jurisdiction of the court based on the allegedly defective service of process.


The first question to be determined is whether the trial court properly granted plaintiffs' motion for summary judgment against Gaseteria on the issue of liability. R.R. 4:58-3 provides, inter alia, "A summary judgment or order, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages." Gaseteria attacks the judgment given on several grounds.

N.J.S.A. 6:2-7, the statute which was the basis of the trial court's order granting judgment, provides:

"The owner of every aircraft which is operated over the land or waters of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured. If the aircraft is leased at the time of the injury to person or property, both owner and lessee shall be liable, and they may be sued jointly, or either or both of them may be sued separately. An airman who is not the owner or lessee shall be liable only for the consequences of his own negligence. * * *"

Gaseteria argues that N.J.S.A. 6:2-7 is an unconstitutional exercise of the police power which deprives owners of airplanes of their property without due process of law. The argument is that "the imposition of absolute liability upon the aircraft owner by R.S. 6:2-7 cannot be sustained

unless the ownership and operation of aircraft be judicially determined to be an ultrahazardous activity as to persons for whose benefit absolute liability is imposed." Gaseteria thereupon cites Johnson v. Central Aviation Corp., 103 Cal. App. 2 d 102, 229 P. 2 d 114 (D. Ct. App. 1951); Boyd v. White, 128 Cal. App. 2 d 641, 276 P. 2 d 92 (D. Ct. App. 1954); and Southern California Edison Co. v. Coleman, 150 Cal. App. 2 d Supp. 829, 310 P. 2 d 504 (Super. Ct. 1957), to support its contention that aviation is no longer considered by the courts to be an ultrahazardous activity. But see United States v. Praylou, 208 F.2d 291, 293 (4 Cir. 1953), cert. denied 347 U.S. 934, 74 S. Ct. 628, 98 L. Ed. 1085 (1954); Margosian v. United States Airlines, Inc., 127 F. Supp. 464, 467 (D.C.E.D.N.Y. 1955); Restatement, Torts, § 520, comment (d) (1938).

The fault of this argument, however, lies in its premise. The doctrine that an extraordinary hazard will subject the persons responsible for it to absolute liability was infused upon the ordinary rule of liability for fault by the English case of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). See Morris, Torts, 240-242 (1953). But see Marshall v. Welwood, 38 N.J.L. 339, 340-341 (Sup. Ct. 1876). Some courts will use the device of the Rylands v. Fletcher doctrine to impose liability without fault when the complaint is of injuries arising from activities which may be termed extrahazardous. But that rule is concerned with common-law liability. It in no way applies to legislative acts and is not a limiting factor upon them. The Legislature has not improperly exercised the police power or violated due process merely because it imposes absolute liability on a person causing injuries. New York Central R.R. v. White, 243 U.S. 188, 37 S. Ct. 247, 61 L. Ed. 667 (1917); City of Chicago v. Sturges, 222 U.S. 313, 32 S. Ct. 92, 56 L. Ed. 215 (1911); Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598 (1932). Rather, when such action has been taken, the question is whether the law is reasonable, not arbitrary or capricious, and whether it bears

a real and substantial relation to the end sought to be attained. Nebbia v. New York, 291 U.S. 502, 525, 54 S. Ct. 505, 78 L. Ed. 940 (1934).

The essential reasonableness of the statutory imposition of absolute liability in question stems, at least, arguably, from the problems of proof of fault encountered by a person damaged by falling aircraft (or falling debris from aircraft) who seeks recovery for those damages. Proof of negligence, for many different reasons, is difficult to obtain in a large number of such cases. Sweeney, "Is Special Aviation Liability Legislation Essential ?", 19 J. Air L. & Com. 166, 168-170 (1952). Even if such proof is obtainable, the expense involved is frequently very high, and often prohibitive. See Speiser, "Liability Problems in Airline Crash Cases," Practical Lawyer, March 1957, p. 17. Application of the doctrine of res ipsa loquitur is an uncertain means of overcoming these problems. McLarty, "Res Ipsa Loquitur in Airline Passenger Litigation," 37 Va. L. Rev. 55, 80 (1951). A practical alternative, therefore, is to place the risk of ground damages caused by aircraft, or at least the risk of recovering from the person responsible for the fault causing such damages, on a person other than the damaged party -- such as the owner of the aircraft as was done in the statute in question. See Prentiss v. National Airlines, Inc., 112 F. Supp. 306, 310 (D.C.N.J. 1953). These considerations, some scholars argue, indicate that the aircraft industry should bear common-law absolute liability. Restatement, Torts, § 520, comment (d) (1938). Both France and Italy, by statute, impose absolute liability on some segment of the aviation industry in favor of the victim of a falling aircraft. Mankiewicz, "Some Aspects of Civil Law Regarding Nuisance and Damage Caused by Aircraft," 25 J. Air L. & Com. 44, 49-50 (1958). England has enacted several statutes with the same effect. Civil Aviation Act of 1940, 12 & 13 Geo. 6, c. 67, Air Navigation Act of 1920, 10 & 11 Geo. 5, c. 80. Concerning the latter, the British Aerial Transport Committee

Report of 1918, recommending the passage of the act, stated:

"Admittedly persons on land are practically powerless to ensure their own safety by precautionary measures against damage caused by the fall of aircraft or of objects carried therein. * * * [A]s far as damages done by aircraft is concerned the deprivation of the landowner of what is almost certainly an existing right of property should be compensated by what will be in effect insurance of himself and his property against such damage. Nor do we think that in practice the expense of insuring himself against third party risks will prove very burdensome to the owner of aircraft." Quoted in Bogert, "Problems in Aviation Law," 6 Cornell L.Q. 271, 300 (1921).

The statute to which the Committee referred bears striking resemblance to Section 5 of the Uniform Aeronautics Act (which was enacted in this State and appears as N.J.S.A. 6:2-7) and the comments of the Committee are as cogent now as then. Manifestly, to shift the risk of ground damages caused by aircraft from the victim thereof to the better risk bearer is within the legislative power to act in behalf of the general welfare.

The above discussion reveals that the statute in question is a reasonable measure, not arbitrary or capricious, and bears a real and substantial relation to the end sought to be achieved. The statute therefore does not violate Gaseteria's rights under Art. I, Par. 1 or 20 of N.J. Const. 1947, or under the due process clause of the Fourteenth Amendment of the Federal Constitution. See Gundaker Central Motors v. Gassert, 23 N.J. 71, 78 (1956).

The second ground of attack on the statute in question is that it contains an unconstitutional classification contrary to the equal protection clause of the Fourteenth Amendment to the Federal Constitution and contrary to Art. I, Par. 1 and Art. 4, Sec. 7, Pars. 8 and 9 of N.J. Const. 1947. The argument proceeds from those portions of N.J.S.A. 6:2-7 which impose absolute liability on the owner or lessee of the ...

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