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A & B Auto Stores of Jones Street Inc. v. City of Newark

June 25, 1969

A & B AUTO STORES OF JONES STREET, INC., A CORPORATION, ET AL., PLAINTIFFS,
v.
CITY OF NEWARK, DEFENDANT



Larner, J.s.c.

Larner

This matter was tried before the court without a jury on issues of liability which could be appropriately decided as common questions of law and fact in the consolidated claims for property damage resulting from alleged riots in the City of Newark between July 12 and 17, 1967. Many of the legal issues were previously decided by this court in A & B Auto Stores, Inc. v. City of Newark , 103 N.J. Super. 559 (1968). This plenary trial was concerned with the evidential exploration of the two basic issues of liability against the city:

1. Is the city liable in common law negligence?

2. Was there a riot or riots within the contemplation of the statutory liability created by N.J.S. 2 A:48-1?

I

The evidence pertaining to the negligence count pointed generally to the alleged failure of the Newark police to

undertake appropriate steps and preparations to control the disturbances in a more efficient manner. Among the deficiencies asserted by plaintiffs were the failure to provide and equip the police with riot equipment of various types, such as riot sticks, shotguns, chemical devices, tear gas, gas masks, and the like. In addition, there was some evidence of superficial or inadequate training of police personnel in riot control, the failure to assign sufficient police personnel to the riot areas, the failure to seek outside assistance at an appropriate time, the failure to ease tensions by community activities through the mayor and other officials, the failure to create adequate planning for riot control, and the inability of the police to prevent and control much of the damage and looting which took place during the hectic days of July 1967.

Without detailing the factual support for those allegations, it is evident that the crux of the negligence charge is bottomed upon the failure of the city to act in the respects outlined above to restrain the rioters and to prevent and deter them from causing the extensive damages and losses sustained by the plaintiffs.

Upon the presentation of all the evidence, the court granted a motion for judgment as a matter of law in favor of the city on the negligence count, and concluded that the failure of a municipality to prevent crimes, control mobs, apprehend criminals or prevent damage to property or persons encompasses a governmental function in the conduct of which the city is immune from common law tort liability. Prather v. City of Lexington , 52 Ky. 559 (Ct. App. 1852); Ward v. City of Louisville , 55 Ky. 184 (Ct. App. 1855); Western College, etc. v. Cleveland , 12 Ohio St. 375, 377 (Sup. Ct. 1861); Gianforte v. City of New Orleans , 61 F. 64, 66, 24 L.R.A. 592 (C.C.E.D. La. 1894); Marshall v. City of Buffalo , 50 App. Div. 149, 152, 64 N.Y.S. 411, 413 (App. Div. 1900); Kretchmar v. City of Atchison , 133 Kan. 198, 200, 299 P. 621, 622 (Sup. Ct. 1931); Shake v. Board of Commissioners of Sullivan County , 210 Ind. 61, 63, 1

N.E. 2 d 132, 133 (Sup. Ct. 1936); 146 West 117th Street v. City of New York , 50 N.Y.S. 2 d 569, 570 (N.Y. City Ct. 1944); Mr. Paint Shop, Inc. v. City of Rochester , 44 Misc. 2 d 684, 685, 254 N.Y.S. 2 d 728, 730 (Sup. Ct. 1964); Hart's Food Stores v. City of Rochester , 44 Misc. 2 d 938, 939, 255 N.Y.S. 2 d 390, 391 (Sup. Ct. 1965); Jones v. County of Herkimer , 51 Misc. 2 d 130, 135, 272 N.Y.S. 2 d 925, 931 (Sup. Ct. 1966); Roy v. Hampton , 108 N.H. 51, 52, 266 A. 2 d 870, 871 (Sup. Ct. 1967).

Prior to adoption of the New Jersey Civil Riot Act (N.J.S.A. 2 A:48-1 et seq.) it was settled law in New Jersey as in other states that a municipality was immune from tort liability for damage caused by mobs or riots. Wells Fargo & Co. v. Mayor, etc., of Jersey City , 207 F. 871, 878 (D.N.J. 1913), affirmed 219 F. 699, 700 (3 Cir. 1915), certiorari denied 239 U.S. 650, 36 S. Ct. 284, 60 L. Ed. 485 (1916).

It is for that reason that the Legislature acted to create liability to a limited extent where none had previously existed. And, in the ordinary course of events, it would be a matter of elementary logic to reach the conclusion that the creation of the statutory cause of action negates the existence of a common law cause of action founded in negligence. However, plaintiffs assert that the pre-1864 governmental immunity has been eroded to such a substantial extent in the modern development of municipal law in this State that the court should reexamine the defense without regard to the effect of the statute and the immunity law existing at the time of its adoption.

It is manifest, of course, that common law municipal immunity has fallen into disfavor and that the current legal trend is to treat the ordinary torts of municipalities and their agents in the same manner as those of private individuals and corporations. See B.W. King, Inc. v. Town of West New York , 49 N.J. 318 (1967); Jackson v. Hankinson , 51 N.J. 230 (1968); Bergen v. Koppenal , 97 N.J. Super. 265 (App. Div. 1967), affirmed as modified 52 N.J. 478 (1968).

Nevertheless, despite this trend, our courts have recognized as a matter of policy and fairness the necessity to insulate municipalities from liability in certain areas of activity which involve the process of decision and policy-making at the legislative or administrative level. For example, the determination of how, when and where to deploy snow removal equipment and personnel is a function involving governmental discretion allocated to the judgment of the local authorities, and should not be reviewed by the courts in a tort damage suit. Amelchenko v. Borough of Freehold , 42 N.J. 541 (1964); Miehl v. Darpino , 53 N.J. 49 (1968). Similarly, the decisions of a municipality whether to remove a traffic light at an intersection, Hoy v. Capelli , 48 N.J. 81 (1966), or whether to create a road having a certain number of lanes or dividers or traffic lights or circles, Fitzgerald v. Palmer , 47 N.J. 106, 109 (1966), or whether to designate a street as a one-way thoroughfare Visidor Corp. v. Borough of Cliffside Park , 48 N.J. 214 (1966), certiorari denied 386 U.S. 972, 87 s. ct. 1166, 18 L. Ed. 2 d 132 (1967), fall into the category of activities in which municipalities are immune from tort liability.

It is, therefore, evident in this State that with regard to certain of its activities, a municipality should not be subject to tort liability regardless of how those activities are defined or labeled. In Amelchenko, supra , Justice Francis pointed out some of the reasons for the continuation of immunity in snow removal cases as follows:

"Moreover, when a street department is established, obviously the governing body determines the number of employees to be assigned to it and the amount of snow removal equipment to be purchased and made available for ordinary municipal needs. That determination is a matter of judgment committed under our system of government to the local authority and it should not be interfered with by the courts in a tort damage suit.

Moreover, establishment of a general method of handling snowstorms is a matter of planning. The decision adopting a procedure regulating when, where and in what order of priority the equipment and personnel are to be used in dealing with them is legislative or governmental in nature. Such decisions cannot be subject to review in

tort suits for damages, for this would take the ultimate decision-making authority away from those who are responsible politically for making the decisions. The extent and quality of governmental service to be furnished is a basic governmental policy decision. Public officials must be free to determine these questions without fear of liability either for themselves or for the public entity they represent. It cannot be a tort for government to govern." (42 N.J. , at pp. 549-550)

A similar approach is expressed by Chief Justice Weintraub in Fitzgerald, supra:

"A private entrepreneur may readily be held for negligent omissions within the chosen ambit of his activity. But the area within which government has the power to act for the public good is almost without limit, and the State has no duty to do everything that might be done. Rather there is a political discretion as to what ought to be done, as to priorities, and as to how much should be raised by taxes or borrowed to that end. If government does act, then, when it acts in a manner short of ordinary prudence, liability could be judged as in the case of a private party. So if a road were constructed of a design imperiling the user, the issue of fault would present no novel problem. But whether a road should have four or six or eight lanes, or there should be dividers, or circles or jughandles for turns, or traffic lights, or traffic policemen, or a speed limit of 50 or 60 miles per hour -- such matters involve discretion and revenue and are committed to the judgment of the legislative and executive branches. As to such matters, the question is whether a judge or jury could review the policy or political decisions involved without in effect taking over the responsibility and power of those other branches." (47 N.J. , at p. 109)

The New York Court of Appeals reached the same conclusion in the leading case of Weiss v. Fote , 7 N.Y. 2 d 579, 585, 200 N.Y.S. 2d 409, 413, 167 N.E. 2 d 63, 66 (1960), wherein Judge Fuld noted the following:

"To accept a jury's verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally consisted and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts. Acceptance of this conclusion, far from effecting revival of the ancient shibboleth that 'the king can do no wrong', serves only to give expression to the important and continuing need to preserve the pattern of distribution of governmental functions prescribed by constitution and statute."

See also Van Alstyne, "Governmental Tort Liability: A Decade of Change," 1966 U. Ill. L.F. 919, 975 (1966):

"The principal rationale of the new version articulates a felt need to prevent juries, or judges sitting as triers of fact, from passing judgment upon decisions made by public officials in areas of policy and discretion where, by law, fundamental responsibility for making such decisions has been vested in them. It seems clear that the notion of fault has diminished relevance in this context. Wholly arbitrary and capricious governmental action is rare, indeed; and it is difficult to discern how a lay jury can decide rationally, in the artificial environment of a civil trial, that a responsible public official or board acted negligently in making a particular discretionary decision which ultimately had tort consequences. Almost invariably, a reasonable man could have decided either way; the presence of discretion and judgment as elements in the decisional process necessarily implies choice between alternatives which are equally defensible as rational conclusions drawn from good faith evaluation of competing arguments and policies. Since a rational determination in this context is inconsistent with the fault concept which underlies most tort law, the 'discretionary immunity' has strong appeal along traditional conceptual lines."

In the context of the asserted facets of negligence in this case, the City of Newark and its police department were faced with many decisions of governmental policy which cannot now be subjected to judicial review.

For example, whether the city should have purchased or used extraordinary riot equipment such as shotguns, riot sticks, chemical devices or tear gas depended on the exercise of discretion by the responsible officials to determine whether the budget and taxes should be increased to encompass the necessary expenditures involved, whether the presence or use of such equipment would effectively control the mobs or rather increase the tensions and violence, and whether the deployment of such tools of danger would result in a greater holocaust of injury and death to members of the public, innocent and otherwise. How can a fact finder, whether a judge or a jury, reach a sensible conclusion as to fault in this type of activity where the use of discretion and judgment defy analysis under the accepted standards of reasonably prudent conduct?

In the same vein, how is it possible to test the reasonableness of the actions of the police administration in the deployment of police to the riot areas when they are faced with the limitation of personnel within budget requirements and available recruits, and with the necessity to utilize the police force in all parts of the city for ordinary police duties involving traffic, investigation and detection of crimes, arrests and general protection of the members of the public?

Or who is to say that the mayor of the city was negligent in failing to ask for assistance from the State before he did, when his decision involves such complex determinants as the reaction of the public and the rioters to a state of military siege? And how is a fact finder to arrive at a determination of fault or cause and effect in such nebulous areas as riot training or planning or community relations between city officials and militant racial groups?

It is abundantly clear that the ambit of activity encompassed herein involves areas of discretion and policy committed to the judgment of the legislative and executive branches of the local government and beyond the pale of appropriate judicial review.

The dismissal of the negligence count is further dictated by the absence of expert testimony to establish the standard of conduct applicable to the Newark police under the existing factual circumstances. The nature of police administration dealing with the judgment of those engaged in a field of professional expertise is beyond the ken of fact-finding laymen, such as jurors or judges. In such an area, expert testimony is necessary to establish the basic standard of conduct of a reasonably prudent head of a police department faced with the panorama of existing facts before a fact-finder can determine whether negligent conduct is demonstrated. Cf. Carbone v. Warburton , 22 N.J. Super. 5, 10 (App. Div. 1952), affirmed 11 N.J. 418 (1953); 7 Wigmore on Evidence (3 d ed. 1940), § 2090; McCormick on Evidence 28 (1954); 31 Am. Jur. 2 d, Expert and Opinion Evidence, § 16 (1967).

In the absence of such expert testimony, the fact-finder is plunged into a morass of allegations without a concrete test by which to judge the conduct under attack. It is axiomatic that the nub of a finding of negligence is the existence of a standard of conduct and the violation of that standard. And if the factfinder in this area of police administration is ill-equipped to utilize a standard of conduct based upon common experience, he cannot reach the question of whether there was a violation of that standard without the expert testimony of one steeped in experience and knowledge in the field.

II

The City of Newark has a paid police force and therefore liability attaches for property "destroyed or injured" "by reason of a mob or riot." N.J.S. 2A:48-1. The plaintiffs assert that the proofs support the conclusion that "riots" took place in the City of Newark between July 12 and 17, 1967, and that property was destroyed or damaged by reason thereof.

In determining whether a riot or riots took place in the light of the evidence produced at trial, it is essential to establish first the meaning of the term "riot" as contained in the applicable legislation. This meaning must be gleaned from sources outside the particular section of the statute under which this action was instituted, since the legislation does not contain a definition of the significant term "riot."

The common law offense of riot has been defined as "a disturbance of the peace by three or more persons unlawfully assembled together and acting in a violent and tumultuous manner," or "an unlawful assembly that has developed to the stage of violence." State v. Lustig , 13 N.J. Super. 149, 151, 152 (App. Div. 1951).

Inherent in the commission of a riot is an unlawful assembly, which in turn has been defined to be "any gathering together of three or more persons, with intent to disturb the public ...


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