At issue on motion for judgment notwithstanding the verdict, R. 4:40-2, is whether the governmental-proprietary distinction in municipal tort liability survives the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. That issue is critical because the amended complaint joining the City of New Brunswick as party defendant was filed two years and eight days after the accrual of the claim for damage to plaintiff's boat basin and boat yard. If the Tort Claims Act is applicable the two-year statute of limitations in N.J.S.A. 59:8-8 is a bar. Otherwise, the ten-year period of limitation in N.J.S.A. 2A:14-1.1 or the six-year period of limitation in N.J.S.A. 2A:14-1 governs. Timely notice of plaintiff's claim was presented to defendant city in conformity with N.J.S.A. 59:8-8.
Because of an injunction count the action was transferred from the Law Division to the Chancery Division, R. 4:3-1(a)(2). The tort cause of action against defendant city was for negligence or trespass in opening the sluice gate of Weston's Mill dam upstream from plaintiff's boat basin and boat yard on Lawrence Brook, without notice or warning to plaintiff. Lawrence Brook is a tributary of the Raritan River; plaintiff's marina is near their confluence. The injunction count was resolved by a consent order providing for at least three hours' notice by defendant city to plaintiff prior to opening the sluice gate of the dam in the future.
Defendant city owns and maintains Weston's Mill dam and two other upstream dams by a water department financed through its own revenues. The water department supplies defendant city's water supply and the water supplies of other
nearby municipalities from Weston's Mill pond and elsewhere along Lawrence Brook. Weston's Mill dam was built around 1888.
Unquestionably, under the governmental-proprietary distinction prevailing prior to the Tort Claims Act municipal operation of a water utility is a proprietary function. Fay v. Trenton , 126 N.J.L. 52 (E. & A. 1941). The effect of the distinction has been recognized to be that a municipality is liable for "simple negligence" in a proprietary activity, Cloyes v. Delaware Tp. , 23 N.J. 324 (1957), but for "active wrongdoing" only in a governmental activity, Milstrey v. Hackensack , 6 N.J. 400, 408 (1951).
On July 20, 1975 a rainstorm of a magnitude predictable once in a hundred years struck the area, including the Lawrence Brook watershed. According to a United States Geodetic Survey measurement at Farrington Lake dam four miles upstream from Weston's Mill pond, the discharge rate reached 4,922 cubic feet a second, 60% higher than the highest previous measurement during Hurricane Doria in 1971.
The peak overflow over the spillway on Weston's Mill dam was calculated at 3,880 cubic feet a second. Plaintiff's marina, about 7,000 feet downstream on a peninsula reaching into the brook, was exposed to a rush of water. The depth of Lawrence Brook stayed almost level without flooding of the banks. In the early morning hours of July 21 George Searle, plaintiff's principal owner, became aware of the increased velocity of Lawrence Brook and was almost continuously at the marina thereafter through the day.
At about ten in the morning, with heavy, drenching rain still falling and surface water run-off adding increasingly to the volume in Lawrence Brook because of saturation of the watershed, defendant Kane, city engineer of defendant city, determined to protect the dam against the unprecedented velocity in the brook. The sluice gate was opened at about half past eleven. Little damage had occurred at plaintiff's marina until that time.
At noon Lawrence Brook surged into plaintiff's marina with a further increase in velocity and turbulence. Two engineering
experts attributed this surge to the opening of the sluice gate. Boats broke loose, pilings and docks were twisted and washed away. The most severe wreckage was in the moorings in the ...