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Fanning v. Town of Montclair

Decided: December 18, 1963.

MARION J. FANNING, PLAINTIFF-RESPONDENT,
v.
TOWN OF MONTCLAIR, A MUNICIPAL CORPORATION IN THE COUNTY OF ESSEX AND STATE OF NEW JERSEY, DEFENDANT-APPELLANT



Conford, Freund and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

Defendant municipality appeals from a judgment of $1,000 in favor of plaintiff as well as from the refusal of the trial court to grant defendant's motions for an involuntary dismissal.

The suit arises out of a break in a municipal water main with resultant water damage to plaintiff's property. On June 11, 1960 plaintiff was the owner of premises 85 Upper Mountain Avenue, Montclair. About midnight on that date a break occurred in an underground water main in front of plaintiff's property. Plaintiff telephoned the Water Bureau and reported the incident and a repair crew was dispatched to the scene. The crew arrived about 12:45 A.M., shut off the water in the main, located the break in the pipe and repaired it. However, prior to the shutting off of the main, the escaping water flowed over plaintiff's property in considerable volume and flooded the basement apartment in her house. It is undisputed that plaintiff suffered some damage.

The instant suit charges defendant with negligence in failing to make periodic examinations and tests of its water mains in order to determine their condition and their ability to resist

water pressure, and in increasing the water pressure without determining the ability of the mains to withstand the increased pressure.

At trial plaintiff testified to the events of the night in question and the resultant damage to her real and personal property. Plaintiff's other witness was Arnold S. Giannetti, the Superintendent of the Montclair Water Bureau. His testimony may be summarized as follows: Such records as were available in the Bureau indicated that the water main under Upper Mountain Avenue was laid about 1890. It was a 12-inch unlined cast iron pipe. The water runs through the main by gravity from a storage tank in the Watchung Mountains. The water pressure in the main in question at the time of the break was about 100 pounds. No examinations or tests of the pipes along Upper Mountain Avenue had been made in recent years. In December 1959 there had been a break in a water main within a mile of plaintiff's property.

On cross-examination the witness testified that the Bureau ran periodic tests and inspections of fire hydrants and gate valves. He said that the system is manned on a 24-hour basis and has controls and gauges showing water pressure and amount of water in the tank and an alarm system which will respond to any major break.

After plaintiff rested her case defendant moved for a judgment of involuntary dismissal which was denied.

Defendant recalled the Superintendent of the Water Bureau as its witness and showed that he is a licensed professional engineer with a degree in engineering from "Pennsylvania Polytechnic Institute, Renssalaer" (sic). He is also certified by the New Jersey State Board of Health "to operate a water system." He testified that originally the water supply was stored in a smaller storage tank but that in 1929 a larger tank with a greater storage capacity was installed and was still in use in 1960. He intimated that the change-over to the larger tank in 1929 caused an increase in water pressure from about 96 or 97 pounds to the present pressure of about 100 pounds.

The Superintendent was at the scene with the repair crew and described how the main was found about four feet underground. He estimated that the break was repaired and water restored in the main about 6 or 7 A.M. He also testified from the Bureau's graph records for the night in question which showed a rise in the water level of the storage tank up to midnight and shortly thereafter a rapid decline in the water level until about 12:45 A.M., when the decline stopped.

The Superintendent stated that the life of cast iron pipe was indefinite and that such pipe is in service in places in the United States over a hundred years, and much longer in European countries. He testified that at the present time pipe is inspected at the foundry, and also at the time of installation by means of steam pressure, but that once pipe is buried in the ground and goes into service there is no method whereby the pipe can be reasonably ...


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