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Bosch v. Hain

Decided: February 11, 1982.

BILLY BOSCH AND AIDA RIVERA, PLAINTIFFS,
v.
ISAAC AND GENONEA HAIN, THE CITY OF HOBOKEN, STATE OF NEW JERSEY, JOHN A. DOE, JOHN B. DOE, DEFENDANTS. PLACEDO SOTO, AS ADMINISTRATRIX AD PROSEQUENDUM FOR THE HEIRS-AT-LAW OF NICHOLAS TORRES ET AL., PLAINTIFF, V. ISAAC HAIN AND GENOVEA HAIN, DEFENDANTS. CETERAM DREPAUL, AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATES OF JACOB DREPAUL ET AL., PLAINTIFFS, V. CITY OF HOBOKEN, MUNICIPAL CORPORATION, ET AL., DEFENDANTS



O'Brien, A.j.s.c.

O'brien

[184 NJSuper Page 206] On January 20, 1979 21 people were killed and others injured in a fire in the City of Hoboken. These three suits are for the wrongful death and personal injuries suffered by some of the victims of this fire who were occupants of a multiple dwelling owned by defendants Isaac and Genovea Hain. Pursuant to the New Jersey Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 et seq. , the building was inspected on October 31, 1978. This inspection was performed by the Hoboken Housing Bureau

in accordance with an agreement between the State and the City of Hoboken, authorized by N.J.S.A. 55:13A-21.

The inspection revealed approximately 190 violations, many of which were later characterized as "life threatening" by the chief fire inspector. In accordance with customary procedure, a report was forwarded to the New Jersey Department of Community Affairs which issued a standard form "Notice of Violation" to defendant owners about 30 days after the inspection. The terms of the notice allowed defendant owners 60 days, or until February 6, 1979, to remedy the violations. N.J.S.A. 55:13A-13. Within that time the fire occurred.

According to the chief fire inspector, the fire was caused by three children from the fourth- and fifth-floor apartments, who allegedly set fire to newspapers and rubbish on the second- and third-floor landings.

Procedural History

The initial case was filed on March 21, 1980 by Billy Bosch and Aida Rivera against the owners of the building, the city and the State. On July 10, 1980 a separate complaint was filed by Placedo Soto et al. against the owners of the building, but did not name any public body as a defendant. On November 24, 1980 the Drepaul case was filed, naming as defendants, in addition to the owners, the City of Hoboken, County of Hudson and the State of New Jersey. On May 19, 1981 the Bosch and Soto cases were consolidated. The Drepaul case had not been consolidated.

The public entity defendants in the Drepaul case moved for summary judgment, which motion was heard on September 25, 1981. Defendants based their argument chiefly upon the holdings in Jennifer Brothers, etc. v. Highlands , 178 N.J. Super. 146 (App.Div.1978), and National Spring Co. v. Pierpont Associates, Inc. , 146 N.J. Super. 63 (Law Div. 1976). Drepaul's attorney did not present any substantial argument against application of the principles stated in those cases and accordingly the motions for summary judgment were granted.

Thereafter the City of Hoboken and the State of New Jersey, defendants in the Bosch case, moved for summary judgment. (Curiously the State of New Jersey is represented by a different Deputy Attorney General in the Bosch case than the Deputy appearing in the Drepaul case.) In opposition to that motion, the attorney for plaintiffs Bosch and Rivera advanced a number of theories of liability which had not been raised in the Drepaul action. These arguments advocating imposition of liability against public entities under certain circumstances were so persuasive that the court was moved to reconsider the ruling in the Drepaul matter as well.

Accordingly, a hearing was held with all counsel present from both the Bosch and the Drepaul cases (including the two separate Deputy Attorneys General). All parties agreed that the County of Hudson could not be held liable under any theory and thus the summary judgment previously entered in favor of the county was confirmed.

This case raises substantial questions as to the construction of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. The court is informed in the comment which accompanies N.J.S.A. 59:2-1 that the approach should now be "whether an immunity applies and if not, should liability attach." Further, the court is admonished that in utilizing this approach it exercise restraint in the acceptance of novel causes of action against public entities. Thus, although N.J.S.A. 59:2-2 appears to establish sweeping vicarious liability for the acts of public employees, such general liability is, of course, subject to and circumscribed by the express immunity provisions of the act. See Setrin v. Glassboro State College , 136 N.J. Super. 329 (App.Div.1975), and Wuethrich v. Delia , 155 N.J. Super. 324 (App.Div.1978), certif. den., 77 N.J. 486 (1978).

Defendants first rely upon the inspection immunity contained in N.J.S.A. 59:2-6. That section reads as follows:

A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property; provided, however, that nothing in this section shall exonerate a

public entity from liability for negligence during the course of, but outside the scope of, any inspection conducted by it, nor shall this section exonerate a public entity from liability for failure to protect against a dangerous condition as provided in Chapter 4.

With respect to the last phrase in this section, the comment states:

The inclusion of the reference to Chapter 4 is intended to indicate that this immunity shall not apply when dangerous conditions of public property are involved. In those cases Chapter 4 of this Act provides the controlling principles of liability.

Due to this reference, chapter 4 must be read in pari materia with N.J.S.A. 59:2-6.

N.J.S.A. 59:4-2 provides as follows:

A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably ...


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