Kolovsky, Fritz and Demos. The opinion of the court was delivered by Kolovsky, P.J.A.D.
In 1965 and early 1966 plaintiffs purchased from defendant Edmart, Inc. one-family homes in a building development in Bayonne known as "Shorecrest Homes." Edmart, Inc. had applied for, and had obtained in September 1964, subdivision approval for the development from the Planning Board of the City of Bayonne after posting a performance bond of $100,000 to assure the installation by it of various improvements, including streets, curbs, sidewalks, catch basins, fire hydrants and sewers.
On several dates beginning in May 1966 -- but all before the City of Bayonne adopted a resolution accepting the sewer lines in the development -- the sewer lines backed up during heavy rainstorms, causing damage in the basements of plaintiffs' homes. The fault was found to be in the inadequate depth of the sewer lines as compared with the depth of plaintiffs' homes.
The city, after an investigation, instituted an action against the developer and the surety on its performance bond. That action was settled on terms which called for and accomplished the elimination of the problem by the installation of new sewer lines at a lower depth.
Plaintiffs instituted this action to recover the damages which they allegedly had suffered by reason of the floodings which had occurred prior to the installation of the new sewer line. Joined as parties defendant were: the developer, Edmart, Inc.; its "engineer and designer of the development," one Curley; its general contractor, Apkel Building Corporation (Apkel); the City of Bayonne and the city engineer, Henry E. Kruse.
After trial before the court without a jury a judgment was entered awarding plaintiffs a total of $35,629.44 against the City of Bayonne and Kruse, its engineer, and a total of $51,840.17 against Edmart, Inc. and Apkel Building Corporation.
Defendants Bayonne and Kruse appeal from the judgment against them. Defendants Edmart, Inc. and Apkel do not
appeal. Plaintiffs, by a cross-appeal directed only to Bayonne and Kruse, challenge the allocation of damages among the several defendants and the refusal of the trial court to award them damages "for mental anguish or physical pain or discomfort by reason of the repeated flooding."
However, we do not reach the merits of the cross-appeal since we are satisfied that neither the city nor its engineer should have been held liable in damages to plaintiffs and that the judgments against them must be reversed.
The trial court imposed liability on the municipal defendants because it found that the sewer system shown on the plans submitted by the developer to the planning board and the installation thereof were defective and concluded that the municipal defendants were chargeable with "affirmative" negligent conduct for which -- under the purported authority of Fagliarone v. North Bergen Tp., 78 N.J. Super. 154 (App. Div. 1963), certif. den. 40 N.J. 221 (1963) -- they could be held to respond in damages to plaintiffs.
The court recognized that neither of the municipal defendants had either designed or installed the sewer system. It explained its finding of liability thusly:
However that may be, the facts of this case bespeak of an affirmative action on the part of the municipality even though it did not design or install the system. We need go no further than the affirmative action of its Planning Board in approving the subdivision plan with its sewer system which it knew or should have known, with the exercise of reasonable care and diligence, was improperly designed and which was not capable of handling the volume of drainage and sewage required for the subdivision. In granting its approval, it was ...