For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
Plaintiffs sought the recovery of damages to their respective properties resulting from a fire which had its origin on lands owned by defendant. The jury having returned a verdict for plaintiffs, defendant moved for a judgment notwithstanding the verdict or in the alternative for a new trial. The trial court granted defendant's motion for judgment notwithstanding the verdict and granted the motion for a new trial conditionally, if the entry of that judgment should be reversed on appeal. Upon appeal, the Appellate Division reversed, reinstating plaintiffs' verdicts. This Court granted certification upon defendant's petition. 47 N.J. 424 (1966).
The facts as disclosed on the trial are as follows: On June 5, 1959 defendant held a $500,000 tax lien on certain lands then owned by the receivers of the New York, Ontario and Western Railway Co. In order to protect this lien, the defendant purchased the said lands at a public sale. The property was composed of two piers extending into the Hudson River and some adjacent high land. The piers consisted of an open lattice work trestle 30 feet high and 50
feet wide which extended 400 feet inland and a similar distance into the river. They were built for loading coal barges but had not been used for that purpose for at least 15 years.
Evidence as to the physical condition of the piers indicated that the wood was old and dry and in sections rotted and decayed. The state of disrepair was such that at least two persons had fallen through rotted or loose boards.
There was testimony that there was no "housekeeping" practiced on the piers, i.e., that there existed wood debris, lumps of coal and coal dust thereon and that it had been brought to the attention of the municipality that people frequently trespassed on the piers. Although the area was visited every one-half hour by a police patrol car, the town neither maintained a watchman on the premises nor required a police officer to go thereon. There was a fire alarm box on the land near the piers but no such alarm nor any fire fighting or prevention equipment was available upon the piers. There was no fence or other means adopted to prevent access to the piers. The defendant did, however, post "no smoking" signs. Barges were permitted to tie up to the piers for a fee of $1.50 per day.
On August 18, 1961 three teenage boys were trespassing on the southerly pier when one of them threw a lighted cigarette into a coal hopper. Shortly thereafter they noticed smoke in the vicinity of the hopper and discovered that a wooden beam was on fire. When they saw that they could not extinguish the fire they fled. Defendant's fire department was immediately thereafter notified. The fire rapidly consumed the piers and spread to adjoining real and personal property which plaintiffs owned.
Plaintiffs argue that the defendant municipality was engaged in a proprietary function in its ownership and management of the piers and was hence subject to liability. Plaintiffs proceed to rationalize that in the performance of this proprietary function, defendant breached its duty of reasonable care to prevent the spreading of fire to the property of others by failing to furnish adequate care, supervision and management
of the property. The reason for plaintiffs' categorization of defendant's function as proprietary in connection with the pier ownership and management lies, of course, in the desire to avoid the necessity of proof of active wrongdoing and to bring defendant's conduct within the scope of municipal liability for torts on ordinary principles of negligence for failure to act. Schwartz v. Borough of Stockton, 32 N.J. 141 (1960).
The first problem, therefore, is whether defendant was under any duty. In fixing municipal liability for torts there has been a more or less blind adherence to the municipal proprietary-governmental distinction, without a real consideration of the reasons which gave birth to that doctrine and of whether, in the light of the general expansion of municipal activity, the doctrine has not outlived its usefulness. Municipal immunity from tort liability and the proprietary-governmental test have fallen into considerable disrepute. There is a consensus that most of the reasons for immunity have expired and that municipal liability should be subject to less restrictive limits. Further discussion of this topic is unnecessary because of past able discussion thereof. McAndrew v. Mularchuk, 33 N.J. 172 (1960); Cloyes v. Delaware Twp., 23 N.J. 324 (1957); Taylor v. N.J. Highway Authority, 22 N.J. 454 (1956); Borchard, "Government Liability in Tort," 34 Yale L.J. 1, 129, 229 (1924-25); Davis, "Tort Liability of Governmental Units," 40 Minn. L. Rev. 751 (1956); 3 Davis, Administrative Law, § 25.07 (1958); 2 Harper and James, Law of Torts, § 29.6 (1956); 18 McQuillin, Municipal Corporations (3 d ed. 1963), § 53.24a; Prosser, Torts (2 d ed. 1964), § 109.
The difficulty with the articulation of a substitutionary rule lies in the ascertainment and expression of a perimeter for liability. It is most difficult if not impossible to academically visualize all the possible sets of circumstances which could give rise to a claimed municipal liability. There results an inability to state in advance a positive standard for that purpose. We have, ...