[109 NJSuper Page 249] The problem raised on this motion to dismiss count II of the complaint for failure to state a claim upon which relief can be granted pursuant to R. 4:6-2(a)
and 6:3-1 is whether, as a matter of law, a municipality may be held liable to a landowner for negligence in granting a certificate of occupancy.
The background facts are that defendant Summit Hill Construction Co., Inc. built a home for plaintiff for which the municipality issued a certificate of occupancy. The homeowner now complains that the builder improperly graded the land and failed in other respects to construct the home properly, and sues both builder and municipality. The municipality is charged with negligence in the issuance of the certificate of occupancy.
Viewed analytically, it is possible to build a chain of logic under which plaintiff might prevail. If the scope of duty is determined by whether "it was within the realm of foreseeability that some harm might result," Hartman v. Brigantine , 42 N.J. Super. 247, 262 (App. Div. 1956), aff'd 23 N.J. 530 (1957); Avedisian v. Admiral Realty Corp. , 63 N.J. Super. 129 (App. Div. 1960), and if the foreseeability of harm may be considered as a matter of hindsight, see Mitchell v. Friedman , 11 N.J. Super. 344 (App. Div. 1951), there is a question here for the trier of fact. Certainly it was foreseeable that a landowner might rely upon the certificate of occupancy, and that if the certificate of occupancy were negligently issued, a landowner so relying might suffer damage. On such analysis the breach of obligation of due care, and the chain of causation, would be satisfied. But as the cases have made clear, the consequences of the application of such a chain of logic may require limitation as a matter of policy. In Goldberg v. Housing Authority of Newark , 38 N.J. 578 (1962), Chief Justice Weintraub, in a decision holding a municipal housing authority under no duty to provide police protection in a housing project, said:
The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the
nature of the risk, and the public interest in the proposed solution. [at 583]
To the same effect, are the remarks of Justice Hall in Caputzal v. Lindsay Co. , 48 N.J. 69, 75 (1966).
The basic question was discussed in detail in Seidel v. Greenberg , 108 N.J. Super. 248 (Law Div. 1969). There it was said:
The existence of "causation in fact" having been established, the problems of "proximate cause," "foreseeability," "duty," "intervening cause" and the like are presented. In the last analysis, they resolve themselves down to problems, not simply of factual causation, but rather of policy, justice and fairness. [at 259]
The complaint states the case against the municipality as if it were a private individual, without charging active wrongdoing or specifying the position in the municipal chain of command of the officer who issued the certificate.
In the light of Hayden v. Curley , 34 N.J. 420 (1961), and Cloyes v. Delaware Tp. , 23 N.J. 324 (1957), I doubt that dismissing count II for failure to allege active wrongdoing is warranted.
In Hayden , the jury involved was caused by the natural growth of a tree. The court said:
To constitute 'active wrongdoing' a municipality's injury-conflicting conduct must consist of something more than a negligent failure or omission to act. [at 424]
The court, nevertheless, held that
By planting the tree, the city affirmatively created an obstruction in the public way. The jury could find it was reasonable [sic] foreseeable at the time of the planting that the tree in the course of its natural growth, which includes the growth and spreading of its roots, would probably disrupt the alignment of the sidewalk. Put another way, a jury could find it was reasonably foreseeable that the tree, if not properly inspected and maintained, ...