of their position that a party who neither owns property on which a nuisance is located, nor creates that nuisance, may nevertheless be held liable under this tort theory. Accordingly, this court will dismiss plaintiffs' claims for private nuisance against Fox & Lazo and Galanti.
E. Ultrahazardous Activity
Plaintiffs fail to state a claim in strict liability for "ultrahazardous activity" for precisely the same reasons they cannot state a claim for private nuisance.
The general principle of strict liability for ultrahazardous activities states that: "One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. Restatement (Second) of Torts § 519.(1976). While there is authority in New Jersey holding that the storage of highly flammable or highly toxic substances is an abnormally dangerous activity under common law principles, see New Jersey Dept. of Envir. Protection v. Arlington Whse., 203 N.J. Super. 9, 14, 495 A.2d 882 (App. Div. 1985) (collecting cases), whether the storage of torpedo tubes is, in the circumstances of this case, an abnormally dangerous activity is an issue which need not be decided at this time.
Plaintiff has cited no cases imposing strict tort liability for ultrahazardous activity on a party who is not even alleged to have been connected with the abnormally dangerous activity. It is implicit in the Restatement's formulation of this tort that the liability attaches only to those who "carry on" abnormally dangerous activities. There is no allegation in the complaint that Fox & Lazo and Galanti "carried on" the activity of storing torpedo tubes at the Property. Plaintiffs seek to impose liability on parties whose connection to the alleged harmful conduct is too remote to support liability as a matter of law.
Having disposed of the two tort claims set forth in plaintiffs' complaint, it behooves this court to address plaintiffs' "claims," contained in the Eleventh Count of the complaint, under New Jersey's Joint Tortfeasors Contribution Act. N.J. Stat. Ann. §§ 2A:53A-1 to 53A-29 (as amended). This Act preserves the common law right to contribution which traditionally existed between joint tortfeasors. A common law cause of action for contribution arises "when two or more persons become liable in tort to the same person for the same harm." Restatement (Second) of Torts § 886A(1) (1977). Thus, contribution is a right of one liable party against another. The Joint Tortfeasors Contribution Act, however, creates no rights in a plaintiff.
Were the Lentzes determined to be potentially responsible parties under section 9607(a) of CERCLA, an issue which this court need not, and does not address at this time, they would have a statutory right to contribution pursuant to 42 U.S.C. § 9613(f)(1). In this event, however, plaintiffs would have a claim directly under the applicable provisions of CERCLA, not a claim under New Jersey's Joint Tortfeasors Contribution Act.
Accordingly, the Eleventh Count of plaintiffs' complaint will be dismissed.
F. The Remaining Claims
The Third, Fourth and Fifth Counts of plaintiffs' complaint set forth claims against Fox & Lazo and Galanti arising out of their alleged duty to monitor Mason's financial status. Plaintiffs assert that a credit check, and/or an investigation of Mason's mortgage application would have revealed problems which should have led Fox & Lazo and Galanti to prevent Mason from taking up residence at the Property. Defendants contend that these are essentially claims for breach of contract, and that the Listing Agreement, the relevant contract, did not oblige Fox & Lazo or Galanti to complete a credit check on Mason.
Plaintiffs allege that, as part of the Listing Agreement, they "requested that a credit check be performed on any potential purchasers or lessees." Complaint, Third Count, P 29. Plaintiffs state, on information and belief, that "neither defendant Galanti nor anybody at Galanti's request, nor anybody at Fox & Lazo did a credit check on Mason as required under the Listing Agreement." Complaint, Third Count, P 32. In the subsequent count, plaintiffs reallege that "Galanti failed to perform a credit check on defendant Mason as required under the listing Agreement," Complaint, Fourth Count, P 37, and state, again upon information and belief, that "Galanti never investigated or performed a due diligence check on the alleged mortgage company hired by defendant Mason," Complaint, Fourth Count, P 38. Plaintiffs also complain that "Galanti never took any affirmative steps to determine if Mason was making any efforts to obtain a mortgage." Complaint, Fourth Count, P 39. Finally, in paragraph 40, plaintiffs state that they "relied to their detriment upon Galanti's representations that she had the skill and expertise to handle the sale and/or lease of the [Property] and would act in the manner expected of a real estate broker with ordinary skills and experience. Complaint, Fourth Count, P 40.
These allegations, especially those contained in paragraph forty, although somewhat perplexing, suggest that plaintiffs may assert a claim for negligence, in addition to breach of contract. Drawing all reasonable inferences from the allegations in the complaint in the light most favorable to the plaintiffs, as this court must on a motion to dismiss, the complaint can be read to allege that Fox & Lazo and Galanti breached a standard of care applicable to realtors and their agents, and that plaintiffs suffered damages as a result.
In New Jersey, a realtor is a fiduciary of the seller, and its duties to its client may exceed those specifically set forth in the listing agreement. See Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 553, 236 A.2d 843 (1967). Even after a contract of sale has been executed, a realtor is obliged
"to periodically review the status of the contract, check to see if the buyers are attending to their obligations under the contract, and, at least when the realtor has introduced the buyers to the mortgagee, periodically communicate with the bank to ascertain if the application is proceeding smoothly. If there is a causal connection between the realtor's failure to oversee the transaction and the loss sustained by the sellers, the realtor may be held liable.
Farrell v. Janik, 225 N.J. Super. 282, 288, 542 A.2d 59 (L. Div. 1988) (citing Sullivan v. Jefferson, Jefferson & Vaida, 167 N.J. Super. 282, 400 A.2d 836 (App. Div. 1979)). As the court in Farrell stated, when a realtor holds itself out "as a specialist in the sale of real estate it [is] required to employ not merely the skill of a salesperson, but that special degree of skill normally possessed by the average realtor licensed in New Jersey who has devoted special study and experience in the field of real estate sales." Id. at 289. The Third, Fourth and Fifth Counts may not be dismissed, therefore, because, on a motion made pursuant to Rule 12(b)(6), this court may only dismiss if no relief could be granted under any set of facts consistent with the allegations of the complaint. Conley, 355 U.S. at 45-46.
Furthermore, it would be premature to declare that no breach of the Listing Agreement could be proven consistent with these allegations. Fox & Lazo and Galanti point out that the Listing Agreement itself does not oblige Fox & Lazo to perform a "credit check" or to "investigate" Mason's financial status, as neither is specifically mentioned in the agreement. Furthermore, the Residential Profile, on which plaintiffs indicated that prospective lessees would be required to undergo a credit check, does not state that Fox & Lazo or its agents are obliged to arrange for such a credit check. Nevertheless, paragraph forty alleges that plaintiffs relied on certain "representations" made by Galanti. If it could be shown that these representations included a statement to the effect that Fox & Lazo and/or Galanti would assume responsibility for the performance of the credit check requested in the Residential Profile, plaintiffs could make out a prima facie claim for breach of contract. In light of the allegations contained in the Third, Fourth and Fifth Counts of plaintiffs' complaint, the motion of Fox & Lazo and Galanti to dismiss these counts will be denied.
Because plaintiffs' complaint fails to state a claim against defendants, Fox & Lazo and Galanti, for violations of CERCLA, the New Jersey Spill Act, or for private nuisance or strict liability under the common law of New Jersey, these claims will be dismissed as against Fox & Lazo and Galanti. The Eleventh Count of plaintiffs' complaint, which purports to state a claim under New Jersey's Joint Tortfeasors Contribution Act, will also be dismissed. Insofar as Fox & Lazo and Galanti seek to dismiss the claims contained in the Third, Fourth and Fifth Counts of plaintiffs' complaint, their motion will be denied. The court will enter an appropriate order.
STEPHEN M. ORLOFSKY
United States District Judge
Dated: April 14, 1997
This matter having come before this Court on the motion of Defendants, Cathie Galanti and Fox & Lazo, Inc., to dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12(b)(6), Jeffrey T. Kampf, Esq., of Jay & Kampf, appearing on behalf of the Plaintiffs, and Thomas P. Bracaglia, Esq., of Kelly, McLaughlin & Foster, appearing on behalf of Defendants, Cathie Galanti and Fox & Lazo, Inc.; and,
The Court having considered the Complaint, and the Listing Agreement and Residential Profile referenced in the Complaint, as well as the Briefs filed in support of and in opposition to this motion, for the reasons set forth in this Court's Opinion filed concurrently with this Order;
It is on this 14th day of April, 1997, ORDERED that:
1. The motion of Defendants, Cathie Galanti and Fox & Lazo, Inc., to dismiss Plaintiffs' claims for violations of CERCLA and the New Jersey Spill Act, as well as plaintiffs' claims for private nuisance and strict liability for ultrahazardous activity, all contained in the Seventh, Eighth, Ninth, Tenth, Twelfth, Thirteenth, Fourteenth and Fifteenth Counts of Plaintiffs' Complaint, is GRANTED;
2. Plaintiffs' claim under New Jersey's Joint Tortfeasors Contribution Act, contained in the Eleventh Count of plaintiffs' complaint, is DISMISSED;
3. The motion of Defendants, Cathie Galanti and Fox & Lazo, Inc., to dismiss Plaintiffs' claims contained in the Third, Fourth and Fifth Counts of Plaintiffs' Complaint is DENIED.
STEPHEN M. ORLOFSKY
United States District Judge