For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall, Schettino and Mountain. For affirmance -- None.
Two very serious fires, occurring on August 6 and September 11, 1963, caused extensive damage to the boardwalk in Asbury Park and to the property of the proprietors of certain adjoining stores. Suits for damages were brought by the municipality and by the storekeepers against New Jersey Natural Gas Company, which owned and operated a gas pipeline installed immediately under the boardwalk. These actions were consolidated and the case was tried solely on the issue of liability.
Following a trial of seven weeks, a jury verdict of no cause of action was returned as to all claims. A motion for a new trial having been denied, plaintiffs appealed to the Appellate Division which, in an unreported opinion, reversed the judgment below and remanded the matter for a new trial. This court granted defendant's petition for certification. 57 N.J. 142 (1970).
The conceptual grounds upon which plaintiffs proceeded, although never very clearly articulated, seem to have been two. It was first claimed that defendant had been negligent in permitting gas to escape from its pipeline, that this gas then ignited and caused or substantially contributed to the conflagration which resulted in damage to plaintiffs. Secondly, and less clearly, plaintiffs contended that defendant installed its pipeline at a place where it was reasonably foreseeable that there might be fires and that these fires might very likely rupture the line, thus permitting gas to escape which would in turn ignite. Hence, it was argued, such allegedly misplaced installation was itself an act of negligence.
At the time of the fires the boardwalk was relatively new. The planks or beams of which it was constructed, in order to make them more resistant to wear, had been heavily impregnated with creosote. This substance, according to certain testimony, emits a smell somewhat similar to that of odorized natural gas and, like gas, is distinctly flammable at a certain temperature. On the ocean side of the structure, in an effort to control beach erosion, a solid bulkhead had been built between the lower side of the boardwalk and the beach. The spaces between the planks of the boardwalk itself, however, were 3/16th of an inch wide so that the space beneath, although a closely chambered area, was by no means airtight.
Defendant's pipeline consisted of a single strand of 4 inch pipe suspended by chains from the lower side of the boardwalk. Service lines to accommodate consumers extended laterally into the various establishments. Pressure within the pipe was 1/4 pound per square inch.
All parties conceded that both fires -- remarkably similar -- were of unknown origin. Each was out of control very quickly, becoming a raging blaze well before any firefighting equipment could be brought to bear. Each was accompanied by billowing clouds of very dark smoke in addition to the flames.
The Appellate Division rested its conclusion that the judgment should be reversed upon alleged errors found in the judge's charge to the jury. These will be separately examined.
Upon the issue of proximate cause the court's charge stated that unless defendant's negligence was the proximate cause of the damage there could be no recovery. Plaintiffs' counsel took prompt exception and requested a corrective charge to the effect that defendant's negligence need only have been a proximate cause -- not necessarily the proximate cause -- of the damage, in order for there to be a recovery. The judge at once recognized the validity of the
argument, recalled the jury, and gave the following supplemental instruction,
Now, ladies and gentlemen, it's been brought to my attention and properly so that it's possible that I charged you with regard to proximate cause, that the plaintiffs have the duty of proving by a preponderance of the credible proof the negligence of the defendant which was the proximate cause of any damage. It should have been a proximate cause because the plaintiffs have the burden of proving by a greater weight of the credible proof the negligence of the defendant was a proximate cause of the damages. The obligation of the plaintiff on this issue is satisfied if the plaintiff establishes that the defendant's ...