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Hinkes v. City of Newark

Decided: September 27, 1972.

MORRIS N. HINKES T/A LITTLE JOE'S TAVERN, PLAINTIFF,
v.
CITY OF NEWARK, A MUNICIPAL CORPORATION, DEFENDANT



Feinberg, J.d.c.

Feinberg

On August 7, 1972 this court entered judgment for plaintiff in the sum of $1,088.20 and costs for damages recoverable by plaintiff under N.J.S.A. 2A:48-1:

Liability of municipality or county; action

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 for the damages sustained thereby, recoverable in an action by or in behalf of such person.

This matter arises as a result of a motion by the plaintiff to add interest to the judgment in accordance with R. 4:42-11(b):

In tort actions, including products liability actions, the court shall include in the judgment interest at 6% per annum on the amount of the award from the date of the institution of the action or from a date 6 months after the date of the tort, whichever is later. * * *

The question before the court on this motion is whether plaintiff's action is a "tort action" within the meaning of the above rule.

"Tort" has been defined as a "private or civil wrong or injury. A wrong independent of contract." Black's Law Dictionary (4th ed. 1951), at 1660.

Plaintiff's assertion is in derogation of common law and must be strictly construed.

In A & B Auto Stores, etc. v. Newark , 106 N.J. Super. 491 (Law Div. 1969), aff'd 59 N.J. 5 (1971), the court held:

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 ...


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