For modification in part and affirmance in part -- Chief Justice Weintraub and Justices Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the Court was delivered by Weintraub, C.J.
This appeal involves some 450 suits pressing thousands of claims against the City of Newark arising out of widespread disorders in that City between July 12 and 17, 1967. The actions were consolidated for trial and have been handled by a committee of attorneys with the understanding embodied in a court order that all parties will be bound by the determination in these proceedings.
Plaintiffs urged two bases for liability: (1) that the City was negligent in its handling of the disorders, and (2) that the disorders were riots within the meaning of a statute, to which we will later refer, imposing liability upon the City without regard to fault. The trial court disposed of some issues by motion before trial. 103 N.J. Super. 559 (Law Div. 1968). The case then went to trial without a jury with respect to common issues of fact and law. The trial court decided that the City could not be held in negligence but was chargeable under the riot statute. 106 N.J. Super. 491 (Law Div. 1969). It reached these " Conclusions "
with respect to the statutory action (106 N.J. Super. at 514):
In consideration of all the evidence and the reasonable inferences therefrom, the court finds that there were many tumultuous disturbances of the peace in the Central, South, West and North Wards of the City of Newark between July 12 and 17, 1967. These disturbances involved groups of black persons in varying numbers in excess of three, who used force and violence to accomplish the common purpose of the militant blacks in a racist upsurge to destroy and injure the property of the white segment of the community. Although the disorders took place in various sections of the city and involved different mobs and bands, nevertheless they were all part of a cohesive movement wherein one group was inspired by and gained courage from other groups. And through the psychological and physical support of large menacing numbers, many individuals were enabled to set fires, to destroy, to enter and to loot with impunity.
The court finds from the overwhelming undisputed evidence that these disorders constituted a general 'riot' or a series of 'riots' within the reasonable meaning and intent of the applicable legislation, and that these 'riots' caused untold damage to real and personal property through fires, physical destruction, pillaging and looting.
These findings bring to a close the proceedings in the consolidated cases so far as they can be determined on common issues of fact and law. Henceforth, the individual cases will be set down for hearing on the remaining issues of damages and causal relationship between the riots and the damages. At those hearings, the city may assert the statutory defenses involving contributory negligence and notice requirements to the extent that they may be supported by evidence applicable to any of the particular claimants.
The disorders did not subside until after a large contingent of the New Jersey State Police and some 3,400 members of the New Jersey National Guard were sent to aid the local police forces. The nature and extent of the disorders are reflected in these statistics (106 N.J. Super. at 513-514):
1029 business establishments damaged
24 sniper incidents reported
Total arrests: approximately 1500
Many confiscated weapons, including revolvers, rifles, shotguns and knives.
The order entered on those findings being interlocutory, the parties sought leave to appeal. Leave was granted, and we certified the City's appeal and the plaintiffs' cross-appeal before argument in the Appellate Division.
It is convenient to deal first with the trial court's holding that plaintiffs cannot prevail on the theory of negligence, 106 N.J. Super. at 493-499, which plaintiffs challenge on their cross-appeal.
We agree with the trial court's treatment of the issue. Its opinion gathers the pertinent cases in our State. 106 N.J. Super. at 493-499. See also Willis v. Department of Conservation and Economic Development, 55 N.J. 534, 539-540 (1970). The barrier is not a technical doctrine of governmental immunity from suit, but rather the absence of a substantive basis for imposing liability. This is so because ultimately plaintiffs challenge administrative or legislative decisions of a discretionary character, and it would be intolerable to burden those decisions with a dollar liability whenever a trier of the facts disagrees with them. Hence in jurisdictions in which the doctrine of sovereign immunity from suit as such has been abandoned or eroded, it nonetheless remains true that an action will not lie to recover riot damages upon a charge of negligence with respect to discretionary decisions made by the authorities. Susman v. City of Los Angeles, 269 Cal. App. 2d 803, 75 Cal. Rptr. 240 (Ct. App. 1969); Silver v. Minneapolis, 284 Minn. 266, 170 N.W. 2d 206 (Sup. Ct. 1969); Westminster Investing Corp. v. G.C. Murphy Company, 296 F. Supp. 1300 (D.D.C. 1969), affirmed, 434 F.2d 521 (D.C. Cir. 1970); Note, "Riot Insurance," 77 Yale L.J. 541, 551-552 (1968).
Hence plaintiffs may prevail only if their claims come within the statute imposing liability upon municipal entities
for mob or riot damages. Our statute, N.J.S.A. 2A:48-1 to 7, was initially adopted in 1864 (p. 237) and was entitled "An Act to provide for compensating parties whose property may be injured or destroyed in consequence of mobs or riots." The statute was substantially similar to laws theretofore enacted in Pennsylvania and New York. Clark Thread Co. v. Hudson County, 54 N.J.L. 265, 266 (Sup. Ct. 1892).
No doubt our statute was prompted by "the draft riots of New York in 1863, when an entire army corps was withdrawn from the front, where it was sorely needed, to hold in check the rebellious elements of that city." County of Allegheny v. Gibson, 90 Pa. 397, 418, 35 Am. Rep. 670, 677 (Sup. Ct. 1879). New York City was held under the statute and paid riot damage claims totaling $1,216,209.55. Milton, Abraham Lincoln and the Fifth Column (Vanguard Press 1942), p. 152.
There were contemporaneous reactions to the draft in our State. As related in Knapp, New Jersey Politics During the Period of the Civil War and Reconstruction (1924), pp. 96-97:
"Although no draft was set for July, 1863 in New Jersey, the draft riots of that month in New York City were not without echo in New Jersey, for in Newark there were demonstrations on July 13, the opening day of the New York riots. The home of Provost-Marshal Miller was assailed, and the office of the Newark Mercury was attacked and stoned. A proclamation by Mayor Moses Bigelow and speeches by prominent citizens of the city cooled the excitement. On July 14 demonstrations were made in many places throughout the state against the draft, but they proved to be unimportant."
On July 15, 1863 the Governor of New Jersey issued a proclamation calling for calm, and 12 days later he issued another proclamation telling the people that "No draft has been ordered in New Jersey" and urging enlistments and the payment of bounties to that end. L. 1864, pp. 796-797. Those events were the backdrop against which the Legislature adopted the 1864 statute.
N.J.S.A. 2A:48-1 (prior to an amendment in 1968 to which reference will be made later) read:
When, by reason of a mob or riot, any property, real or personal, is destroyed or injured, the municipality if it has a paid police force, in which the mob congregates or riot occurs, or, if not in such a municipality, the county in which such property is or was situate, shall be liable to the person whose property was so destroyed or injured ...