This is a motion by the City of Jersey City to dismiss a third-party complaint on the ground that the city has immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. The basic action, which arises out of a fire loss, combines the uninsured loss of plaintiff and the subrogation claim of its insurance company.
A fire which occurred in a 20-building industrial complex on January 4, 1975 resulted in the destruction of property and interruption of business of National Spring Co., Inc., one of the tenants. The damage was sufficiently serious to require National to relocate its business of repairing and replacing automotive suspension systems to a new location.
It is National's contention that the fire did not originally involve the building wherein it was located but that the fire spread to and consumed its premises because of dangerous and inflammable conditions negligently created or permitted to continue by the owners of the complex and other tenants.
F&J Paper Storage Corp. conducted a waste paper and refuse business as a tenant in other premises within the complex. It has been charged with negligently contributing to the spread of the fire by storing baled waste paper within its premises, in violation of a Jersey City ordinance.
In December 1974, the month before the fire, members of the Jersey City Fire Department inspected a warehouse in the complex and observed that baled paper was stored throughout that building, in violation of a Jersey City ordinance. It was here that F&J was storing the baled paper which gives rise to the plaintiff's complaint. Nothing was done with respect to this apparent violation other than notifying the landlord and taking steps to identify the tenants who were thus violating the ordinance.
F&J has brought a third-party complaint against the city and its inspectors for failure to take active steps to
cause the paper to be removed and the violation to be eliminated.*fn1
Third party plaintiff eschews any notion it seeks to recover against the city for failure to enforce the ordinance or for making an inadequate or negligent inspection of property. As to the former, such a claim is clearly barred by N.J.S.A. 59:2-4, and as to the latter, it is clearly barred by N.J.S.A. 59:2-6. Rather, liability is predicated on a negligent failure to carry out a ministerial function, a claim which third-party plaintiff asserts is recognized by N.J.S.A. 59:2-3(d), citing Wuethrich v. Delia , 134 N.J. Super. 400 (Law Div. 1975).
Third-party plaintiff argues that under Wuethrich , and Bergen v. Koppenal , 52 N.J. 478 (1968), its pre-act precursor, a municipality can be liable for acts or omissions of a low-level discretionary or ministerial nature. It seeks to extrapolate from these two cases the concept that where a municipality has notice of a dangerous condition it has a ministerial duty to investigate and, semble , take steps to rectify the condition. Thus in the instant case third-party plaintiff contends that the City had notice of the storage of the paper and had a ministerial duty to take steps to abate the dangerous condition, for failure of which liability ensues for the resultant injury.
In Koppenal a township officer noted that an overhead traffic light on a state highway had broken loose and turned, so that its signal was misdirected. The township did nothing more than notify the State Highway Department when its office opened a few hours later. Before the ...