source: Caselaw Access Project

author: Laknbe, J. S. C.

license: Public Domain

text:
    A & B AUTO STORES OF JONES STREET, INC., A CORPORATION, ET AL., PLAINTIFFS, v. CITY OF NEWARK, DEFENDANT.
    Superior Court of New Jersey Law Division
    June 25, 1969.

      Messrs. Herman D. Michels, Samuel A. Gennet and Marvin A. Sachs argued the cause for plaintiffs (Messrs. Feuerstein & Sachs, Samuel A. Gennet, Lieb & Teich, Jung, Selikoff, Bathman & Dwyer, Lum, Biunno & Tompkins, Lamb, Blake, Hutchinson & Dunne, Sandies <& Sandies, Shurkin, Hersh & Fershing, Skoloff & Wolfe, Herman D. Michels, and Zucker, Lowensiein, Gurney & Zuclcer, attorneys for committee representing plaintiffs in consolidated actions).

      Mr. Norman N. Schiff argued the cause for defendant City of Newark (Mr. Philip E. Gordon, Corporation Counsel of the City of Newark, attorney).
   Laknbe, J. S. C.

This matter was tried before the court without a jury on issues of liability which could be appropriately decided as common questions of law and fact in the consolidated claims for property damage resulting from alleged riots in the City of Newark between July 12 and 17, 1967. Many of the legal issues were previously decided by this court in A & B Auto Stores, Inc. v. City of Newark, 103 N. J. Super. 559 (1968). This plenary trial was concerned with the evidential exploration of the two basic issues of liability against the city:

1. Is the city liable in common law negligence?
2. Was there a riot or riots within the contemplation of the statutory liability created by N. J. S. 2A :48~1?

I

The evidence pertaining to the negligence count pointed generally to the alleged failure of the Newark police to undertake appropriate steps and preparations to control the disturbances in a more efficient manner. Among the deficiencies asserted by plaintiffs were the failure to provide and equip the police with riot equipment of various types, such as riot sticks, shotguns, chemical devices, tear gas, gas masks, and the like. In addition, there was some evidence of superficial or inadequate training of police personnel in riot control, the failure to assign sufficient police personnel to the riot areas, the failure to seek outside assistance at an appropriate time, the failure to ease tensions by community activities through the mayor and other officials, the failure to create adequate planning for riot control, and the inability of the police to prevent and control much of the damage and looting which took place during the hectic days of July 1961.

Without detailing the factual support for those allegations, it is evident that the crux of the negligence charge is bottomed upon the failure of the city to act in the respects outlined above to restrain the rioters and to prevent and deter them from causing the extensive damages and losses sustained by the plaintiffs.

Upon the presentation of all the evidence, the court granted a motion for judgment as a matter of law in favor of the city on the negligence count, and concluded that the failure of a municipality to prevent crimes, control mobs, apprehend criminals or prevent damage to property or persons encompasses a governmental function in the conduct of which the city is immune from common law tort liability. Prather v. City of Lexington, 52 Ky. 559 (Ct. App. 1852); Ward v. City of Louisville, 55 Ky. 184 (Ct. App. 1855); Western College, etc. v. Cleveland, 12 Ohio Ct. 875, 877 (Sup. Ct. 1861); Gianforte v. City of New Orleans, 61 F. 64, 66, 24 L. R. A. 592 (C. C. E. D. La. 1894); Marshall v. City of Buffalo, 50 App. Div. 149, 152, 64 N. Y. S. 411, 413 (App. Div. 1900); Kretchmar v. City of Atchison, 133 Kan. 198, 200, 299 P. 621, 622 (Sup. Ct. 1931); Shake v. Board of Commissioners of Sullivan County, 210 Ind. 61, 63, 1 N. E. 2d 132, 133 (Sup. Ct. 1936); 146 West 117th Street v. City of New York, 50 N. Y. S. 2d 569, 570 (N. Y. City Ct. 1944); Mr. Paint Shop, Inc. v. City of Rochester, 44 Misc. 2d 684, 685, 254 N. Y. S. 2d 728, 730 (Sup. Ct. 1964); Hart’s Food Stores v. City of Rochester, 44 Misc. 2d 938, 939, 255 N. Y. S. 2d 390, 391 (Sup. Ct. 1965); Jones v. County of Herkimer, 51 Misc. 2d 130, 135, 272 N. Y. S. 2d 925, 931 (Sup. Ct. 1966); Roy v. Hampton, 108 N. H. 51, 52, 266 A. 2d 870, 871 (Sup. Ct. 1967).

Prior to adoption of the New Jersey Civil Riot Act (N. J. S. A. 2A:48-1 et seq.) it was settled law in New Jersey as in other states that a municipality was immune from tort liability for damage caused by mobs or riots. Wells Fargo & Co. v. Mayor, etc., of Jersey City, 207 F. 871, 878 (D. N. J. 1913), affirmed 219 F. 699, 700 (3 Cir. 1915), certiorari denied 239 U. S. 650, 36 S. Ct. 284, 60 L. Ed. 485 (1916).

It is for that reason that the Legislature acted to create liability to a limited extent where none had previously existed. And, in the ordinary course of events, it would be a matter of elementary logic to reach the conclusion that the creation of the statutory cause of action negates the existence of a common law cause of action founded in negligence. However, plaintiffs assert that the pre-1864 governmental immunity has been eroded to such a substantial extent in the modern development of municipal law in this State that the court should reexamine the defense without regard to the effect of the statute and the immunity law existing at the time of its adoption.

It is manifest, of course, that common law municipal immunity has fallen into disfavor and that the current legal trend is to treat the ordinary torts of municipalities and their agents in the same manner as those of private individuals and corporations. See B. W. King, Inc. v. Town of West New York, 49 N. J. 318 (1967); Jackson v. Hankinson, 51 N. J. 230 (1968); Bergen v. Koppenal, 97 N. J. Super. 265 (App. Div. 1967), affirmed as modified 52 N. J. 478 (1968).

Nevertheless, despite this tread, onr courts have recognized as a matter of policy and fairness the necessity to insulate municipalities from liability in certain areas of activity which involve the process of decision and policy-making at the legislative or administrative level. Eor example, the determination of how, when and where to deploy snow removal equipment and personnel is a function involving governmental discretion allocated to the judgment of the local authorities, and should not be reviewed by the courts in a tort damage suit. Amelchenko v. Borough of Freehold, 42 N. J. 541 (1964); Miehl v. Darpino, 53 N. J. 49 (1968). Similarly, the decisions of a municipality whether to remove a traffic light at an intersection, Hoy v. Capelli, 48 N. J. 81 (1966), or whether to create a road 'having a certain number of lanes or dividers or traffic lights or circles, Fitzgerald v. Palmer, 47 N. J. 106, 109 (1966), or whether to designate a street as a one-way thoroughfare Visidor Corp. v. Borough of Cliffside Park, 48 N. J. 214 (1966), certiorari denied 386 U. S. 972, 87 s. ct. 1166, 18 L. Ed. 2d 132 (1967), fall into the category of activities in which municipalities are immune from tort liability.

It is, therefore, evident in this State: that with regard to certain of its activities, a municipality should not be subject to tort liability regardless of how those activities are defined or labeled. In Amelchenko, supra, Justice Erancis pointed out some of the reasons for the continuation of immunity in snow removal cases as follows:

“Moreover, when a street department is established, obviously the governing body determines the number of employees to be assigned to it and the amount of snow removal equipment to be purchased and made available for ordinary municipal needs. That determination is a matter of judgment committed under our system of government to the local authority and it should not be interfered with by the courts in a tort damage suit.
' Moreover, establishment of a general method of handling snowstorms is a matter of planning. The decision adopting a procedure •regulating when, where and in what order of priority the equipment and personnel are to be used in dealing with them is legislative or governmental in nature. Such decisions cannot be subject to review in tort suits for damages, for this would take the ultimate decision-making authority away from those who are responsible politically for making the decisions. The extent and quality of governmental service to be furnished is a basic governmental policy decision. Public oflieials must be free to determine these questions without fear of liability either for themselves or for the public entity they represent. It cannot be a tort for government to govern.” (42 N. J., at pp. 549-550)

A similar approach is expressed by Chief Justice Weintraub in Fitzgerald, supra:

“A private entrepeneur may readily be held for negligent omissions within the chosen ambit of his activity. But the area within which government has the power to act for the public good is almost without limit, and the State has no duty to do everything that might be done. Rather there is a political discretion as to what ought to be done, as to priorities, and as to how much should be raised by taxes or borrowed to that end. If government does act, then, when it acts in a manner short of ordinary prudence, liability could be judged as in the case of a private party. So if a road were constructed of a design imperiling the user, the issue of fault would present no novel problem. But whether a road should have four or six or eight lanes, or there should be dividers, or circles or jughandles for turns, or traffic lights, or traffic policemen, or a speed limit of 50 or 60 miles per hour — such matters involve discretion and revenue and are committed to the judgment of the legislative and executive branches. As to such matters, the question is whether a judge or jury could review the policy or political decisions involved without in effect taking over the responsibility and power of those other branches.” (47 N. J., at p. 109)

Tlie New York Court of Appeals reached the same conclusion in the leading case of Weiss v. Fote, 7 N. Y. 2d 579, 585, 300 N. Y. S. 2d 409, 413, 167 N. E. 2d 63, 66 (1960), wherein Judge Puld noted the following:

“To accept a jury’s verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally consisted and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts. Acceptance of this conclusion, far from effecting revival of the ancient shibboleth that ‘the king can do no wrong’, serves only to give expression to the important and continuing need to preserve the pattern of distribution of governmental functions prescribed by constitution and statute.”

See also Van Alstyne, “Governmental Tort Liability: A Decade of Change,” 1966 U. Ill. L. F. 919, 975 (1966) :

“The principal rationale of the new version articulates a felt need to prevent juries, or judges sitting as triers of fact, from passing judgment upon decisions made by public officials in areas of policy and discretion where, by law, fundamental responsibility for making such decisions has been vested in them. It seems clear that the notion of fault has diminished relevance in this context. Wholly arbitrary and capricious governmental action is rare, indeed; and it is difficult to discern how a lay jury can decide rationally, in the artificial environment of a civil trial, that a responsible public official or board acted negligently in making a particular discretionary decision which ultimately had tort consequences. Almost invariably, a reasonable man could have decided either way; the presence of discretion and judgment as elements in the decisional process necessarily implies choice between alternatives which are equally defensible as rational conclusions drawn from good faith evaluation of competing arguments and policies. Since a rational determination in this context is inconsistent with the fault concept which underlies most tort law, the ‘discretionary immunity’ has strong appeal along traditional conceptual lines.”

In the context of the asserted facets of negligence in this case, the City of Newark and its police department were faced with many decisions of governmental policy which cannot now be subjected to judicial review.

For example, whether the city should have purchased or used extraordinary riot equipment such as shotguns, riot sticks, chemical devices or tear gas depended on the exercise of discretion by the responsible officials to determine whether the budget and taxes should be increased to encompass the necessary expenditures involved, whether the presence or use of such equipment would effectively control the mobs or rather increase the tensions and violence, and whether the deployment of such tools of danger would result in a greater holocaust of injury and death to members of the public, innocent and otherwise. How can a fact finder, whether a judge or a jury, reach a sensible conclusion as to fault in this type of activity where the use of discretion and judgment defy analysis under the accepted standards of reasonably prudent conduct?

In the same vein, how is it possible to test the reasonableness of the actions of the police administration in the deployment of police to the riot areas when they are faced with the limitation of personnel within budget requirements and available recruits, and with the necessity to utilize the police force in all parts of the city for ordinary police duties involving traffic, investigation and detection of crimes, arrests and general protection of the members of the public ?

Or who is to say that the mayor of the city was negligent in failing to ask for assistance from the State before he did, when his decision involves such complex determinants as the reaction of the public and the rioters to a state of military siege? And how is a fact finder to arrive at a determination of fault or cause and effect in such nebulous areas as riot training or planning or community relations between city officials and militant racial groups?

It is abundantly clear that the ambit of activity encompassed herein involves areas of discretion and policy committed to the judgment of the legislative and executive branches of the local government and beyond the pale of appropriate judicial review.

The dismissal of the negligence count is further dictated by the absence of expert testimony to establish the standard of conduct applicable to the Newark police under the existing factual circumstances. The nature of police administration dealing with the judgment of those engaged in a field of professional expertise is beyond the ken of fact-finding laymen, such as jurors or judges. In such an area, expert testimony is necessary to establish the basic standard of conduct of a reasonably prudent head of a police department faced with the panorama of existing facts before a fact-finder can determine whether negligent conduct is demonstrated. Cf. Carbone v. Warburton, 22 N. J. Super. 5, 10 (App. Div. 1952), affirmed 11 N. J. 418 (1953); 7 Wigmore on Evidence (3d ed. 1940), § 2090; McCormick on Evidence 28 (1954) ; 31 Am. Jur. 2d, Expert and Opinion Evidence, § 16 (1967).

In the absence of such expert testimony, the fact-finder is plunged into a morass of allegations without a concrete test by which to judge the conduct under attack. It is axiomatic that the nub of a finding of negligence is the existence of a standard of conduct and the violation of that standard. And if the factfinder in this area of police administration is ill-equipped to utilize a standard of conduct based upon common experience, he cannot reach the question of whether there was a violation of that standard without the expert testimony of one steeped in experience and knowledge in the field.

II

The City of Newark has a paid police force and therefore liability attaches for property “destroyed or injured” Ciby reason of a mob or riot.” N. J. S. 2A:48-1. The plaintiffs assert that the proofs support the conclusion that “riots” took place in the City of Newark between July 12 and 17, 1967, and that property was destroyed or damaged by reason thereof.

In determining whether a riot or riots took place in the light of the evidence produced at trial, it is essential to establish first the meaning of the term “riot” as contained in the applicable legislation. This meaning must be gleaned from sources outside the particular section of the statute under which this action was instituted, since the legislation does not contain a definition of the significant term “riot.”

The common law offense of riot has been defined as “a disturbance of the peace by three or more persons unlawfully assembled together and acting in a violent and tumultuous manner,” or “an unlawful assembly that has developed to the stage of violence.” State v. Lustig, 13 N. J. Super. 149, 151, 152 (App. Div. 1951).

Inherent in the commission of a riot is an unlawful assembly, which in turn has been defined to be “any gathering together of three or more persons, with intent to disturb the public peace, accompanied by some overt act or acts to effect that intent.” State v. Butterworth, 104 N. J. Law 579, 583, 58 A. L. R. 744 (E. & A. 1928).

Other courts have varied the definitional terms. In International Wire Works v. Hanover Fire Insurance Co., 230 Wis. 72, 283 N. W. 292, 293 (Sup. Ct. 1939), the court stated that a riot is “an assembly of individuals who commit a lawful or unlawful act in a violent or tumultuous manner, to the terror or disturbance of others.” The leading case under the English Eiot (Damage) Act, 49 and 50 Vict., c. 38, §2, states the necessary elements of a riot to be the following:

“* * * (1.) number of persons, three at least; (2.) common purpose; (3.) execution or inception of the common purpose; (4.) an intent to help one another by force if necessary against any person who may oppose them in the execution of their common purpose; (5.) force or violence not merely used in demolishing, but displayed in such a manner as to alarm at least one person of reasonable firmness and courage.” Fields v. Receiver of Metropolitan Police, [1907] 2 K. B. 853, 860.

Corpus Juris Secundum defines the term as follows:

“* s= * a tumultuous disturbance of the peace by three or more persons, assembled and acting with a common intent, either in executing a lawful private enterprise in a violent and turbulent manner, to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner.” 77 G. J. S. Riot § 1 (1952).

According to Blackstone,

“A riot is where 3 or more actually do an unlawful act of violence, either with or without a common cause or quarrel * * * or do any other unlawful act with force and violence * * * or even do a lawful act, as removing a nuisance, in a violent or tumultuous manner.” 4 Blachsione Commentaries (3d ed. 1862), 152.

In 1 Russell on Crimes (9th ed. 1877), 376, a riot is the following:

“* * * a tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprise of a private nature, and afterwards actually executing the same, in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.”

Hawhins, Pleas of the Crown, defines a riot in this manner:

“A riot seems to be a tumultuous disturbance of the peace, by three persons (a) or more, assembling together of their own authority, with an intent mutually to assist one another, against any who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.” 1 Hatolcins, Pleas of the Crown, c. 65, § 1 (1787).

Einally, according to the noteworthy case of People v. Judson, 17 N. Y. C. P. (11 Daly) 1 (C. P. 1849), there is a riot “whenever three or more persons, in a tumultuous manner, use force or violence in the execution of any design wherein the law does not allow the use of force * * *.”

At this point it is useful to note the following appropriate comment made by a Yew York court in a civil riot act case after reviewing various definitions of the term “riot

“We should not be unduly governed or controlled by the application of technical rules or definitions, as in a criminal prosecution, but rather by a reasonable, fair, liberal, and, at the same time, prudent, interpretation of this remedial statute, imposing the obligation on the city on the one hand, and creating the right to compensation by the property owner on the other.” Marshall v. Buffalo, supra, 64 N. Y. S., at p. 416.

A distillation of all the definitions of a riot contained in past precedents leads this court to the conclusion that a riot is simply a tumultuous disturbance of the peace by a group of three or more persons having a common purpose who act in concert to accomplish their purpose through force or violence.

Ill

Although the city acknowledges that the foregoing quotations represent the classic definitions of a “riot” under common law precedents, it urges that the history of the legislation in New Jersey requires more rigid requirements of proof to qualify the disturbance as a riot for recovery of damages against the municipality.

The original legislation of 1864 (L. 1864, c. 150), which is the forerunner of N. J. S. 2A :48-l to 7, was couched substantially in the same language as the current legislation. In the Revised Statutes of 1877, the Legislature combined all the acts dealing with mobs, riots and tumultuous assemblies, civil and criminal, into one statute entitled “An Act to Prevent Eouts, Eiots and Tumultuous Assemblies.” Rev. 1877, p. 978, § 1 et seq.

Included in that act was a provision dealing with the duty of the sheriff and other peace officers to “read the riot act,” i. e., to proclaim to those assembled to disperse under pain of criminal penalties (now N. J. 8. 2A:126-4). Incorporated in this section is the provision that it applies only where there are 12 or more persons “armed with clubs, guns, swords or other weapons” or “any number of persons, consisting of thirty or more * * * unlawfully, routously, riotously, or tumultuously assembled * * *.” Rev. 1877, § 1.

Paragraphs 2, 3 and 4 of the 1877 Revision provided, inter alia, for criminal penalties for those who fail to desperse after the reading of the riot act or who obstruct the officials from carrying out their duties. (Now N. J. 8. 2A:126-5 and 7).

Paragraphs 5 to 11 of the 1877 Revision contained the civil provisions for compensation for damaged property now incorporated in N. J. 8. 2A :48-l to 7. The 1877 Revision was continued virtually unchanged in the Compiled Statutes of 1910, 4 C. 8., p. 4380, § 1 et seq.

In 1923 the Legislature adopted an additional act entitled “An Act to Suppress Mob Violence” (L. 1923, c. 147) which incorporated civil and criminal provisions. The criminal section of the 1923 statute found their way into the 1937 Revision and are presently designated as N. J. 8. 2A :126-1, 2 and 3. Section 1 defines a “mob” as a collection of five or more individuals assembled for the unlawful purpose of offering violence to the person or property of one supposed to have violated the law, or for the purpose of exercising correctional powers over a person by violence. Sections 2 and 3 create criminal liability for those participating in a “mob.”

The portions of the statute dealing with the civil right of action for damages against a municipality for death or injury to person or property at the hands of a “mob” were incorporated in the 1937 Revision, and now appear in N. J. S. 2A :48-8 and 9. State v. Algor, 26 N. J. Super. 527 (App. Div. 1953); Hailey v. City of Newark, 22 N. J. Misc. 139, 36 A. 2d 210 (C. P. 1944). N. J. S. 2A:48-8 contains its own definitions of a “mob,” which parallels the definition in the criminal sections of the act now set forth in N. J. S. 24:126-1.

In all this legislation and revisions there is absent any effort on the part of the Legislature to define a “riot.” The city contends that the terms “riot” and “mob” are synonymous and that the court should adopt the definition contained in N. J. S. 24 :126-1 or 24:48-8 as the test of whether plaintiffs have proved the existence of a riot. This contention is based solely upon the fortuitous circumstance that all the statutes dealing with mobs and riots, both criminal and civil, were codified in one act in the Revision of 1877, and that by this comprehensive treatment the Legislature intended that the definition of a “mob” pervade all the sections of the statute involving mobs or riots.

Such a simplistic analysis has no real merit. The current statute which is pertinent to this litigation has no relationship physically or substantively with the statutory enactments involving the legislative definition of a “mob.” Eurthermore, the court cannot overlook the fact that the Legislature utilized two separate terms: mob or riot, and that every word in a statute must be given significance. Fiscilla v. Nulton, 22 N. J. Super. 367, 372 (App. Div. 1952); Foy v. Dayko, 82 N. J. Super. 8, 13 (App. Div. 1964), certification denied 41 N. J. 602 (1964).

It is the court’s conclusion that a “riot” is distinguishable from a “mob” and that the definition of a “riot” is not controlled by the statutory definition of a “mob”. See Hailey, supra, at p. 142. Furthermore, it is manifest that plaintiffs have proceeded on the allegation of the existence of a “riot,” and the evidence will therefore be judged by the elements of a “riot,” and not by those of a “mob” as defined in the other statutes.

IV

Defendant also advances the argument that the statute granting civil recovery against a municipality should only be invoked in a situation where the rioters are a “specific identifiable group with a common objective directed against a specific property,” and that the nature of the disturbances in Newark in July 1967 did not have these characteristics. There is no basis in precedent or logic to assume that the Legislature intended to engraft such refined limitations on the general definition of a riot; and this court therefore rejects the defendant’s suggestion to that effect.

The mere circumstance that most of the fact situations arising in the past under civil riot statutes have involved damage caused to a particular property owned or controlled by the intended victim of the riot does not exclude the application of the statute to other types of disturbances that may occur in our society. It is immaterial whether the rioters have a common purpose of injuring or damaging a broad segment of society rather than an individual member thereof.

Similarly, it is of no significance whether there is a single, identifiable group or a number of riotous groups whose overall motivation is inflamed by one common purpose — to injure and destroy. And whether the riotous acts are limited in physical scope to one property, one street, one section of the city, or are wide-spread throughout many areas of the city, is irrelevant.

“Where many individuals are acting separately, or in small parties distinct from each other, at different times and at different places, but manifestly for the same general purpose, as to break into a theater, or to injure it by the throwing of stones and missiles, or to resist or attack those who are there in authority to preserve the peace, it is not a series of affrays, but a general riot.” People v. Judson, supra, 17 N. Y. C. P. R., at pp. 2-3, 11 Daly 1.

Finally, the city urges that the July 1967 disturbances represented a unique phenomenon — “an amorphous explosion” — arising out of sociological causes, which were not within the contemplation of the legislation granting civil recovery against the city. In essence, it asserts that the disturbances were so intense and widespread that they approached the characteristics of an insurrection and that the statutory cause of action was never intended to impose liability for such a holocaust.

Undoubtedly, if the damage to the property of plaintiffs was the result of a true insurrection or rebellion, the court would refuse to impose liability upon the city. It can be assumed that the legislation in question was never intended to create municipal responsibility for the results of a rebellion or insurrection. It is beyond reason to conclude that the Legislature intended to hold municipalities liable for the effects of that type of uprising.

However, the basic target or object of an insurrection or rebellion is established authority — government itself. 46 G. J. 8. Insurrection and Sedition § 1 (1946). The participants in an insurrection combine for the avowed purpose of resistance to established government.

“Insurrection is distinguished from rout, riot, and offenses connected with mob violence by the fact that in insurrection there is an organized and armed uprising against authority or operations of government, while crimes growing out of mob violence, however serious they may be and however numerous the participants, are simply unlawful acts in disturbance of the peace which do not threaten the stability of the government or the existence of political society.” Id., at p. 1085.

The Newark disturbances, as revealed by the evidence, were not motivated by such a purpose and lacked the essential characteristics of an insurrection. If they did not fall into that extreme category, does the fact that the violence was intense or the damage extensive or the riotous activities widespread, distinguish the disturbances so that they are not to be designated as riots under the definition adopted by the court? Or does the fact that the disturbances arose out of socio-racial tensions, or that their object was white society, signify that they are not riots?

The court is of the Arm opinion that these factors are not significant in determining whether there were riots within the intent of the applicable legislation. Eiots exist under the adopted definition whether there is one or more of them, whether they are mild or intense, whether they affect one property or many, whether they are limited to one area or are widespread through the community, whether the cause is sociological or private pique, and whether the object is an individual, a group of individuals, or a broad segment of society.

V

The outbreak of the disorders took place during the night of Wednesday, July 12, in the area of the Fourth Precinct Police Station. A black taxi driver named John W. Smith had been arrested, brought to that station, and held in custody. Apparently, an unfounded rumor had spread that Smith had been beaten to death by the police. In consequence, a group of civil rights leaders appeared at the precinct to investigate the facts, and thereupon a large crowd of Negroes, ultimately numbering several hundred, assembled outside the precinct. They were milling about, uttering epithets at police officers, acting boisterously, and hurling rocks and stones at the precinct building and parked police cars.

Although the arrest of Smith was the spark which ignited the disorders, it has been theorized that the latent causes arose out of deteriorating conditions in the Negro ghetto and frustration with the failure of established authority to correct them. In addition, there had been a few specific sources of irritation on the part of the black community, including the controversy over the location of the New Jersey College of Medicine with its accompanying dislocation of black residents, and the recommendation of a white councilman for the position of secretary of the Board of Education instead of a qualified Negro who had been proposed by whites and Negroes in the community. Moreover, the atmosphere and tensions were ripe for serious disorders, not only in the City of Newark but in many large cities throughout the nation.

Unquestionably, there were many causes, tangible and intangible, which brought about the events of July 12 to 17, 1967 in the City of Newark. Nevertheless, regardless of the causes, the initial manifestation of mob violence pertinent to this litigation occurred at the Fourth Precinct on July 12, as already described. In addition to the hurling of rocks and stones, someone threw a Molotov cocktail at the building. A woman Negro leader was exhorting the crowd to storm the precinct and enter it by force, while other Negro leaders urged the people to go home but “were interrupted when fire bombs were thrown at the precinct.” Several policemen and firemen put out a fire in an abandoned car and were stoned as they left the area.

When a group of 20 to 25 policemen charged out the front door of the precinct, a portion of the crowd dispersed. However, a large group of teenagers, 60 to 75 in number, continued their activities in marching formation, throwing missiles at the precinct building. Ultimately, approximately 50 officers in four squads equipped with helmets and nightsticks left the station and patrolled the area. They were also harassed by missiles thrown by the teenagers from time to time. Finally, the marchers were dispersed, and the crowd around the precinct was dissipated.

That same night, many store windows were shattered and a liquor store was looted in the area of the Fourth Precinct.

The daylight hours of Thursday, July 13, were relatively quiet. There was a wishful hope that the events of the night before were isolated incidents and that there was a return to normalcy. Meetings were held at City Hall to consider the demands and suggestions of Negro leaders and to map out plans for easing existing tensions.

It was learned late Thursday afternoon that leaflets had been distributed in the City stating:

“Stop! Police Brutality Come out and join us at the Mass Rally TONIGHT, 7:30 P. M. FOURTH PRECINCT”

By 6 :45 p.m. a group of about ten persons had formed a picket line in front of the Fourth Precinct, and gradually the line grew larger. By 7 :30 p.m. a crowd of 300 Negroes had gathered across the street. At about 8 :00 p.m. a “heavy barrage of rocks, stones, bottles and pieces of wood and metal hit the front of the precinct, breaking several windows.” The appearance of a group of 50 policemen with night sticks caused the crowd to flee. However, groups of 30 to 50 young teenagers in gwasi-military formation continued to attack the building and the police with missiles and then run back, whereupon they would regroup and proceed with another assault. When more police reserves had been deployed to the Fourth Precinct, the assaults of these youngsters started to quiet down, but reports were coming in to the police of the spread of disorders to various other sections of the city.

Along Springfield Avenue there were crowds milling around — breaking store windows, removing and destroying metal gratings, entering business establishments and looting and vandalizing indiscriminately and as the night wore on, the crowds became larger and the destruction and violence progressively worse.

This activity took place not only along Springfield Avenue and its various side streets, but also in the areas of South Orange Avenue, Clinton Avenue, Elizabeth Avenue and Bergen Street.

The terror was aggravated by bands of 10 to 15 persons, on foot and in cars, looting and starting fires. As testified by Deputy Chief Thomas M. Henry, as the police would approach a place where they had seen a group break in, they came under a barrage of gunfire and stones from nearby rooftops. Molotov cocktails, stones and bottles were common missiles used to prevent the police from performing their duty.

Scenes were frequent of windshields shattered on vehicles with white occupants, and of bloody injuries to citizens, police and firemen.

Ultimately four of the five precincts in the city were substantially involved.

In the words of Captain Christian J. Volz, it was “pretty wild” ■—• it was a “riot.” Captain Charles M. Zizza was patrolling in a police car going easterly on Springfield Avenue. The sight was described by him as “ten thousand animals going crazy” — rioting from 11th Street to Eairmount Avenue, smashing windows, looting and burning stores, turning over cars, attaching lines to steel gratings of store fronts and pulling them away to gain entrance. Bottles and debris were hurled from roof tops at the Hayes housing project.

By midnight there was rioting, burning and looting in four precincts of the city.

Other witnesses' described the crowds as “mobile,” going from store to store and followed by families who entered the stores and looted them indiscriminately. The crowds were extremely noisy and disorderly. As one witness observed, “It looked like wild herds of cattle. Hundreds of them in waves.”

Three specific incidents described by the victims are illustrative of the mood of the crowds and the mortal fear instilled by their violent conduct.

Dominick P. De Anthony owned a food store at 142 Peshine Avenue and lived in an apartment above the store. On Thursday night he looked out his window and saw many black people, estimated at 100 or so, “running like mad,” damaging cars, breaking store windows and removing merchandise from stores, including his own. When he spoke up, some of the crowd yelled, “White man, get back or you’ll be killed.” Others were yelling, “Black power — Let’s get Whitey.” Shops in the area owned by Negro proprietors were not touched. Mr. De Anthony, in fear of his life, finally managed to get out of the area by lying on the floor of the car of a sympathetic black neighbor. When he went back the next day, he was again threatened by a group of teenagers who yelled, “Get out Whitey, we’ll burn you down.”

Prank Gzjz was in his car in the area of Springfield Avenue and Morris Avenue on July IS at about 9 p.m. He saw the mobs shouting, throwing bricks at stores and breaking store windows. A group of 15 or 20 surrounded his ear so that he could not move. They broke the windows of the car and removed him, whereupon they proceeded to rip off all his clothes, take everything of value and “beat the bell out of him.” He roamed around in this condition for a half hour until he was finally rescued by two priests who helped get Mm to a hospital.

Alexander Plax, who was employed in a baby furniture store which had been burned down, testified that as he drove down Springfield Avenue and up South Orange Avenue, he saw gangs with bars and sticks breaking store windows and removing merchandise. He also heard sounds of gunfire. When he ran for cover into a phone booth, 15 Negro youngsters stoned him from all sides yelling, “Come out, you white bastard, we’ll kill you.”

In toto, the actions of the mobs in the various sections of the city were wholly out of control, there was mass violence and disorder, and the police were unable to cope with the situation. Finally, at approximately 2:30 a.m. of July 14, the responsible officials of the city decided that they needed outside assistance. It was at that time that the mayor called Governor Hughes for help, and the State Police and National Guard were dispatched to help restore order.

In the police report of the disorders it is noted that close to 100 persons were injured on July 14 between 3 and 5 a.m. as police and bands of Negroes fought a hit-and-run battle in the Central Ward and the downtown shopping area. As of that time approximately 2,000 persons became involved in more than a hundred incidents.

The same report points out the following:

“Throughout the day there was continuous rioting, acts of arson and sniper fire. Lotting [sic] was rampant. As evening approached the rebellion picked up momentum and fanned out into all directions. It was a repetition of the night before but with many more repreeussions [sic]. Sniper fire was taking its toll. The bands of looters were larger and it seemed that they were more organized. The constant fire alarms were too much for the Newark Fire Department to handle. It was open rebellion. It was street fighting. Guerilla tactics now took hold.”

The State Police arrived in Newark on July 14 at 3 a.m. The National Guard came in the same morning, ultimately reaching a strength of 3,400 troops. In the State Police summary of the disorders, it is pointed out that the riot area contained approximately 12 square miles, about two-thirds of the total residential and commercial area of the city.

Superintendent David B. Kelly of the State Police was in the city from July 13 to 17. His observations revealed many fires and much looting. He toured the city in the early morning of July 14 with the Governor, Mayor and Newark Police Director, and saw crowds of boisterous and hilarious people in groups of 20 to 50. There was a "carnival” atmosphere.

The troubled areas were sealed off by the State Police and National Guard and efforts were commenced to get the crowds off the streets. In addition to the problems arising from destruction, breaking and entering, looting, stoning, and burning, the police and guard troops were faced with an additional danger consisting of many incidents of sniper fire from apartment buildings and roof tops. Firemen who were attempting to fight fires were also harassed by snipers and hurlers of missiles and required police protection to carry on their labors.

On July 14 the Governor of the State was compelled to declare a state of emergency in a proclamation which recited the existence of "a state of disaster in which acts of homicide, violence, looting and burning are prevalent.” He also issued a set of regulations controlling activities in the city, including a night curfew. The state of emergency remained in effect until July 17 at 3 p.m.

The violence tapered off on July 15 with the presence of State Police and National Guard troops who sealed off the riotous areas, although looting and sniper fire continued. By Sunday, July 16, the violence and tensions seemed to ease in the city, and on July 17 conditions were completely under control, so that the emergency was terminated; and on July 18 businesses and schools were open again.

The many photographs and lengthy motion pictures introduced in evidence graphically depicted some of the activities of the rioters and the State Police and National Guard and the extensive damage which resulted from the few violent days.

The statistical aftermath reveals the following:

24 persons killed
1200 persons injured
1029 businesses establishments damaged
29 residences damaged
02 major fires
24 sniper incidents reported
Total arrests: approximately 1500
Many confiscated weapons, including revolvers, rifles, shotguns and knives

Conclusions

In consideration of all the evidence and the reasonable inferences therefrom, the court finds that - there were many tumultuous disturbances of the peace in the Central, South, West and North Wards of the City of Newark between July 12 and 17, 1967. These disturbances involved groups of black persons in varying numbers in excess of three, who used force and violence to accomplish the common purpose of the militant blacks in a racist upsurge to destroy and injure the property of the white segment of the community. Although the disorders took place in various sections of the city and involved different mobs and bands, nevertheless they were all part of a cohesive movement wherein one group was inspired by and gained courage from other groups. And through the psychological and physical support of large menacing numbers, many individuals were enabled to set fires, to destroy, to enter and to loot with impunity.

The court finds from the overwhelming undisputed evidence that these disorders constituted a general “riot” or a series of “riots” within the reasonable meaning and intent of the applicable legislation, and that these “riots” caused untold damage to real and personal property through fires, physical destruction, pillaging and looting.

These findings bring to a close the proceedings in the consolidated cases so far as they can be determined on common issues of fact and law. Henceforth, the individual cases will be set down for hearing on the remaining issues of damages and causal relationship between the riots and the damages. At those hearings, the city may assert the statutory defenses involving contributory negligence and notice requirements to the extent that they may be supported by evidence applicable to any of the particular claimants.


author: Weidefbuefee, J. S. C.

text:
    ANNIE OSTERMAN AND PETER OSTERMAN, PLAINTIFFS, v. LIONEL EHRENWORTH, DEFENDANT.
    Superior Court of New Jersey Law Division
    Argued April 9, 1969—
    Decided July 15, 1969.

      Mr. David R. Simon argued the cause for plaintiffs (Messrs. Simon & Allen, attorneys; Mr. George L. Seltzer on the brief).

      Mr. Richard M. Iciclan argued the cause for defendant {Messrs. Lamb, Blake, Hutchinson & Dunne, attorneys).
   Weidefbuefee, J. S. C.

This is a medical malpractice action in which the defendant-physician objects to answering certain interrogatories on the ground that the answers sought would be in violation of the patient-physician privilege recently created by L. 1968, c. 185 {N. J. 8. 2A :84J.~22.1 et seq.).

The complaint alleges that the defendant negligently prescribed the drug prednisone for the treatment of an arthritic condition in plaintiff’s legs. Plaintiff served the defendant with interrogatories. When defendant did not respond to the interrogatories now in question, plaintiff moved to strike defendant’s answer and direct a trial as to damages only. The interrogatories under attack are the following:

“14. Has defendant ever previously utilized prednisone in the treatment of arthritis or any other illness, disease or symptom? If yes, state (a) the names and addresses of all those so treated, (b) the illness, symptom or disease for which they were treated, (c) defendant’s reasons for utilizing prednisone in such treatment, (d) the length of time for which prednisone was prescribed, (e) whether such persons are still under defendant’s care.
15. If the answer to question 14(e) is no with regard to any person, state the name and address of each such person or persons, together with the date and reason that treatment was discontinued.
16. If the answer to question 14(e) is yes with regard to any person but prednisone is no longer used in the treatment of such person or persons, state the name and address of each of such patients, together with the date and reasons that the use of prednisone was discontinued.
19. If question 17 (inquiring as to whether it was defendant’s practice to treat all patients exhibiting the same symptoms as the plaintiff with prednisone) is answered in the negative, state the names and addresses of at least three patients exhibiting symptoms similar to plaintiff Annie Osterman’s, for whom defendant did not prescribe prednisone, and state why said drug was not used. (Parentheses supplied).
20. Has defendant ever prescribed prednisone for any person other than plaintiff Annie Osterman, where such prescriptions were renewed continuously for three years or longer?
21. If question 20 is answered in the affirmative, state (a) the names and addresses of all those so treated, and (b) the length of such treatment.
22. If the answer to question 20 is no, state (a) the longest length of time for which defendant continuously prescribed prednisone, (b) the name and address of each such patient or patients, and (c) the length of such treatment.
50. Has defendant ever prescribed prednisone for any patient other than plaintiff Annie Osterman, to be taken more than 7 tablets per day? If so, state the names and addresses of each such patient and length of time such treatment was continued.
51. Had defendant knowledge, during the course of his treatment or thereafter, of any other physician who has proscribed prednisone in dosages exceeding 7 tablets per day? If so, state the names and addresses of each such physician, the dosage defendant understood them to prescribe, and the length of time such treatment was continued.”

At common law and prior to 19G8 New Jersey did not formally recognize a patient-physician privilege. Hague v. Williams, 37 N. J. 328, 334-335 (1962) and cases and authorities there cited.

Prior to the legislative recognition of the patient-physician privilege in this State (N. J. S. 2A:84A-22.1 ei seq., supra), however, our highest courts compelled disclosure of information relating to a patient’s health, which was received or obtained in the course of the patient-physician relationship, without the patient’s consent, only where the public interest Williams, supra, p. 336; Myers v. St. Francis Hospital, 91 or the patient’s private interest required it. Hague v. N. J. Super. 377, 386-387 (App. Div. 1966).

In Hague the plaintiffs sued the defendant-physician for medical malpractice. Defendant prevailed in the trial court and on appeal the question was stated to be:

“* * * whether there exists a duty which defendant allegedly breached, i. e., whether the knowledge of the child-patient’s pathological condition obtained by defendant physician in the course of consultation or treatment is of such a confidential nature that the physician is barred from an extra-judicial disclosure thereof, absent plaintiffs’ consent.” (Hague v. Williams, supra, p. 332).

The court in the cited case held that the physician might disclose the information possessed by him concerning the physical condition of the patient to a person with a legitimate interest in the patient’s health where the physical condition of the patient is made an element of a claim. At the same time the court recognized the limited right of the patient against disclosure in the absence of a statutory patient-physician privilege in the following language :

“A patient should be entitled to freely disclose his symptoms and condition to his doctor in order to receive proper treatment without fear that those facts may become public property. Only thus can the purpose of the relationship be fulfilled. So here, when the plaintiffs contracted with defendant for services to be performed for their infant child, he was under a general duty not to disclose frivolously the information received from them, or from an examination of the patient.
This is not to say that the patient enjoys an absolute right, but rather that he possesses a limited right against such disclosure, subject to exceptions prompted by the supervening interest of society. We conclude, therefore, that ordinarily a physician receives information relating to a patient’s health in a confidential capacity and should not disclose such information without the patient’s consent, except where the public interest or the private interest of the patient so demands. Without delineating the precise outer contours of the exceptions, it may generally be said that disclosure may, under such compelling circumstances, be made to a person with a legitimate interest in the patient’s health. See 43 Minn. L. Rev., supra, 960; 8 Wigmore, supra, 856. One of these exceptions arises where, as here, the physical condition of the patient is made an element of a claim. While that claim had not yet been pressed to litigation, the same policy which during litigation permits, even demands, disclosure of information acquired during the course of the physician-patient relationship allows the disclosure thereof to the person against whom the claim is made, when recovery is sought prior to or without suit. At this point the public interest in an honest and just result assumes dominance over the individual’s right of non-disclosure. (Hague v. Williams, supra, p. 336).”

In Myers v. St. Francis Hospital, supra, pp. 386-387, it was held that interrogatories directed to a defendant-physician in a malpractice action asking “the number of occasions he treated conditions similar to infant plaintiff’s, inducing him to perform an exchange transfusion, and the name, address, date and factual account of every patient for whom he performed an exchange transfusion in the preceding two years” must be answered to enable the plaintiff “to cross-examine the doctor with respect to his qualifications and experience” and on his represented status as a specialist in the treatment of infant children.

The general question presented for decision here is whether the new statutory patient-physician privilege has effected any change in our prior decisional law, and, specifically, whether the newly-enacted privilege permits a physician, without the consent of a patient who is not a party to litigation, to respond to interrogatories which would reveal the identity of the non-party patient, the ailment for which he was treated, and the details and duration of such treatment.

The research of counsel and the Court has not disclosed any decisions on the question involved subsequent to New Jersey’s legislative enactment of the patient-physician privilege. Although it is recognized that, as a general rule, a trial court is under a duty to follow the law as enunciated by courts of superior authority [Fox v. Bd. of Ed. of West Milford Tp., 93 N. J. Super. 544, 557-558 (Law Div. 1967) and cases there cited], a trial court cannot ignore a subsequent legislative enactment which represents an expressed public policy [Cf. McGrath v. Jersey City, 70 N. J. Super. 143, 148 (Law Div. 1961), affirmed 38 N. J. 31 (1962); Hague v. Williams, supra, p. 335], if litigants are to enjoy the right to expect the judiciary to have issues before it “met and decided when presented.” Ridgefield Park v. Bergen Co. Bd. of Taxation, 31 N. J. 420, 426 (1960). In this forum, as in courts of higher authority, action and decision “is inescapable” (Ibid.) where legislative expression of public policy may have effected a change in the law of the State. Cf. 21 C. J. S. Courts, § 187, p. 304.

This Court, therefore, proceeds to determine what effect, if any, the statute has on the principles enunciated in our prior decisional law.

N. J. S. 2A:84A-22.2 provides in pertinent part as follows:

“Except as otherwise provided in this Act, a person, whether or not a party, has a privilege in a civil action * * * to refuse to disclose, and to prevent a witness from disclosing, a communication, if he claims the privilege and the Judge finds that (a) the communication was a confidential communication between patient and physician, and (b) the patient or the physician reasonably believed the communication to bo necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor, and (c) the witness (i) is the holder of the privilege, or (ii) at the time of the communication was the physician or a person to whom disclosure was made because reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted * * * and (d) the claimant is the holder of the privilege or a person authorized to claim the privilege for him.”

The definitions of “holder of the privilege” and “confidential communication between patient and physician” are found in N. J. S. 2A:84A-22.1. This section of the statute defines these phrases as follows:

“* * * (e) ‘holder of the privilege’ means the patient while alive and not under the guardianship or the guardian of the person of an incompetent patient, or the personal representative of a deceased patient; (d) ‘confidential communication between physician and patient’ means such information transmitted between physician and patient, including information obtained by an examination of the patient, as is transmitted in confidence and by a means which, so far as the patient is aware, discloses the information to no third persons other than those reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it is transmitted.”

Our statute provides for certain, exemptions from and exceptions to the patient-physician privilege. See N. J. S. 2A:84A-22.3 through 22.7. Without reciting the statutory exemptions from and exceptions to the privilege, it may be observed that they disclose that the legislative draftsmen were cognizant of and subscribed to the philosophy expressed by the Supreme Court in Hague v. Williams, supra, pp. 335-336, and penetrate the statutory shield only where a legislative policy determination was made that the public interest or the private interest of the patient required it. Giving full recognition to the general principle that “[privileges which enable a person * * * to decline to testify himself, whether they arise from the marital status, or physician and patient relationship, or relate to self-incrimination or otherwise, are obstacles in the path of the normal trial objective of a search for ultimate truth” [State v. Briley, 53 N. J. 498, 505 (1969) (Emphasis supplied)], this Court is constrained to hold that the statute reflects a legislative determination that the policy behind the patient-physician privilege is of greater weight than the evidence it makes unavailable. See Comments and Annotations on the New Jersey Rules of Evidence by the Rules of Evidence Study Commission of the New Jersey Legislature (1968), p. 5. None of the statutory exemptions from and exceptions to the privilege evince any legislative intention to subordinate the benefits which inure to the relationship of patient-physician from the privilege to any countervailing benefit to society by subscription to the principle of liberal pre-trial discovery to the degree that a physician would be required, without the consent of the patient, to disclose confidential information to a third-party plaintiff where the Legislature has not made a policy determination in the statute that the public interest or the patient’s private interest demanded it.

It is obvious that the defendant’s knowledge of his patients’ conditions and maladies was gained by his observation and examination of them in the discharge of his professional duties. Although the affected patients of the defendant, who are the “holders of the privilege” (N. J. S. 2A:84A-22.1), are not parties to this litigation and not

present to object, the defendant-physician has the right to assert the claim. N. J. S. 2A:84A-22.2(c) (ii). This right and duty of a defendant-physician is generally recognized. See Mayer v. Albany Medical Center Hospital, 56 Misc. 2d 239, 288 N. Y. S. 2d 771, 773 (Sup. Ct. 1968); Shepherd v. McGinnis, 257 Iowa 35, 131 N. W. 2d 475, 481-482 (Sup. Ct. 1964); Peters v. Campbell, 80 Wyo. 492, 345 p. 2d 234, 239 (Sup. Ct. 1959); Costa v. Regents of University of California, 247 p. 2d 21, 34 (Calif. Ct. of App. 1952), reversed on other grounds, 116 Cal. App. 2d 445, 254 p. 2d 85 (Calif. Ct. of App. 1953); Metropolitan Life Ins. Co. v. Howle, 68 Ohio St. 614, 68 N. E. 4 (Sup. Ct. 1903); and 97 C. J. S. Witnesses § 302(a), p. 841.

In Costa the court upheld a trial court ruling under the patient-physician privilege statute of California in the following language:

“An objection to the question put to the defendant Low-Beer to name another of his patients that had a similar result was correctly sustained on the ground that the name was immaterial and would violate the confidence between the physician and said patient.” (247 P. 2d, at p. 34)

In Shepherd the defendant-physician testified on direct examination about the number of major operations performed by him and the limited number thereof in which operative wound infection had occurred. On cross-examination he was required, over objection to testify concerning the specifics of those cases and name the numerous other patients involved. On appeal the court stated:

“We have held several times the privilege extends not only to confidential communications to the physician, necessary and proper to enable him to treat the patient, hut also to knowledge and information the physician gained by observation and examination of the patient in the discharge of the physician's duties. (Citations omitted). Accordingly, a physician cannot testify to the nature of the disease with which the patient is afflicted. (Citation omitted). It is plain Dr. McGinnis’ knowledge of his patients’ maladies was gained by his observation and examination of them in the discharge of his duties.
Plaintiff asserts that only the patient may claim the privilege and the physician may not do so. It is true the privilege is for the benefit of the patient, not the physician. If the patient were a party to the action or present at the trial and did not claim the privilege such failure would be a waiver thereof. (Citations omitted). Here, the dozen or more patients of defendant-doctor about whom he was cross-examined were not parties and there is no indication or suggestion any of them were present at the trial. Their failure to claim the privilege which they were not in a position to assert may not be deemed a waiver thereof.
Since those in whose favor the privilege existed had not waived it, it. was the doctor’s duty to claim the privilege.
Chicago, G. W. R. Co. v. McCaffery, 178 Iowa 1147, 1155, 160 N. W. 818; Schwimmer v. United States, 8 Cir. (Mo.), 232 F. 2d. 855, 863, (cert. den., 352 U. S. 833, 77 S. Ct. 48, 1 L. Ed. 2d 52); In re Myer’s Will, 184 N. Y. 54, 76 N. E. 920, 921. See also 97 C. J. S. Witnesses § 303, pages 845-846.
The Schwimmer opinion, supra, quotes this with approval from 58 Am. Jur., Witnesses, Section 467, ‘The seal of the law once fixed upon (such a privileged communication) remains unless removed by the party in whose favor it is there placed.’ ” (131 N. W. 2d, at pp. 481-482).

The plaintiffs contend that our statute distinguishes between the communication necessary or helpful to diagnosis and treatment of the patient and the treatment itself. They further urge that the names and addresses of other patients are not within the difinition of “confidential communications” contained in the statute. Support for these contentions is based upon Lindner v. First National Bank and Trust Co. of Montclair, 9 N. J. Super. 569, 574 (Law Div. 1950) and Kaplan v. Manhattan Life Ins. Co. of New York, 71 App. D. C. 250, 109 F. 2d 463 (1939).

Neither of the cited cases is germane. In Lindner plaintiff brought a medical malpractice action against the personal representative of the deceased doctor. The defendant objected to certain interrogatories on the ground that they called for answers concerning a matter which was “privileged”. The interrogatories assailed sought the names and addresses of all persons present when the X-ray treatments, which were the basis for the malpractice allegation, were given by the deceased physician, the nature of the employment of each such person, the number of such treatments and of what they consisted. The court held that the so-called Dead Man’s Statute (then R. S. 2:97-2; now N. J. S. 2A:81-2) did not bar the answers and in dictum questioned the claim of privilege by differentiating between “a confidential communication” and “treatment” as follows:

“So far the issue has been considered as presented by counsel, i. e., as to the existence of a privilege. But, it is questionable whether the matter of privilege is presently involved at all. For, privilege, in this aspect, concerns confidential communications between persons holding confidential relationships to each other, a husband and wife, attorney and client, and fellow jurors, plus the privileges, question (sic) at common law, of priest and penitent, physician and patient. (Wigmore, Evidence, 2d Ed., § 2197) Public policy — the law — requires that these confidences shall not be revealed to third parties, without consent, at any time, in court or out of court.
But here, even as between plaintiff-patient and defendant’s decedent-doctor, no confidential communication is involved, the transaction being simply a matter of X-ray treatment. Rather the present question is whether, if the answers to the interrogatories might help the living party by his own testimony, to win his case against the dead party, contrary to the policy of the above statute, such answers will be inadmissible at the trial.” (9 N. J. Super., p. 574).

It is patent that no valid claim of privilege could be raised on the facts of Lindner, either under our prior decisional law or under the present statute, for the plaintiff-patient was “the holder of the privilege” and entitled to waive it in the prosecution of a claim made by him. See Hague v. Williams, supra, p. 336; 8 Wigmore, Evidence, § 2196, p. 111 and § 2386, p. 851 (McNaughton rev. 1961) ; and N. J. S. 2A:84A-22.4.

In Kaplan the beneficiary of a deceased-insured brought an action on an insurance policy and a defense of fraudulent misrepresentation of age was interposed. The court approved the admissibility of a hospital record showing the name, address and age of the deceased, but, contrary to the argument of the plaintiff in the instant ease, only on the condition that there be no disclosure of the diagnosis or treatment. The court said:

“In the application the insured stated his age as 55, and evidence in corroboration was introduced on the trial. The company produced evidence which tended to show that he was older. This included a hospital record, made a year later, which gave his age as 84. The admission of this record is assigned as error. Hospital records of diagnosis and treatment are usually held to be covered by statutes which, like D. C. Code, Tit. 9, § 20, forbid physicians to disclose confidential information acquired while attending a patient in a professional capacity. But a properly authenticated record of the patient’s name, address, age, etc., is admissible, provided there is no disclosure of diagnosis or treatment.’’ 109 F. 2d, at p. 465. (Emphasis supplied).

As distinguished from the facts in Kaplan, some of the questions propounded by plaintiffs here seek disclosure not of name, address and age of a patient whose representation as to age is a material issue in litigation instituted by one claiming through the deceased patient, but of the names and addresses of third persons, not parties to the instant litigation personally or through representatives, as well as the nature of their illnesses, their treatment and the duration of the same. The decision in Kaplan cannot, even by the most extreme interpretation, be regarded as authority for the proposition that the names and addresses of third persons, not parties, personally or through representatives, to the litigation must be disclosed in conjunction with the nature of their illnesses and the treatment thereof. The emphasized language in Kaplan, supra, clearly destroys such a contention. Authority elsewhere also supports this conclusion. See Costa v. Regents of University of California, supra; and Shepherd v. McGinnis, supra.

Applying the foregoing conclusions of law to the interrogatories here involved, it is obvious that those numbered 20 and 51 would not violate any patient-physician privilege and must be answered. However, to require the physician to reveal the names and addresses of other patients conjoined with the nature of their illnesses and treatment provided for each would amount to judicial disregard of the legislatively expressed public policy; it would disclose that which the legislature has specifically acted to protect. This the judiciary may not do, for it is our function to interpret, not to make, the law. Cf. Eckert v. New Jersey State Highway Dept., 1 N. J. 474, 479 (1949); Stellmah v. Hunterdon Co-op, G. L. F. Service, Inc., 47 N. J. 163, 171 (1966). If the sub-sections of interrogatories numbered 14, 15, 16, 19, 21, 22 and 50, calling for the names and addresses of past and present patients of defendant, are deleted, “no violence is done to the privilege as expressed in” the statutory rule of evidence and it is “construed and applied in sensible accommodation to the aim of a just result.” State v. Briley, supra, pp. 505-506. Any violation of the privilege is thus obviated and the plaintiff would obtain the remaining information requested for such use as may be indicated in the cross-examination of the defendant on his “qualifications and experience.” Cf. Myers v. St. Francis Hospital, supra, p. 386.

The motion to strike the answer and order a trial as to damages only is denied and defendant is ordered to answer the interrogatories involved in accordance with this opinion. Counsel for defendant shall present an appropriate Order within 10 days. R. R. 4:55-1.


author: Labrecqtje, J. A. D.

text:
    JULIA GALLAS, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF STEPHEN GALLAS, DECEASED, PLAINTIFF-APPELLANT, v. PUBLIC SERVICE ELECTRIC AND GAS CO., HATCO CHEMICAL COMPANY, A DIVISION OF W. R. GRACE & COMPANY, A CORPORATION, AND W. R. GRACE & COMPANY, A CORPORATION, DEFENDANTS AND THIRD-PARTY PLAINTIFFS-RESPONDENTS, AND BETHLEHEM STEEL CORPORATION — BUFFALO TANK DIVISION, THIRD-PARTY DEFENDANT-RESPONDENT.
    Superior Court of New Jersey-Appellate Division
    Argued December 2, 1968—
    Decided August 4, 1969.

      Before Judges Gatjlkijst, Collester and Labrecqtje.

      Mr. Alan E. Davis argued the cause for appellant (Messrs. Wilentz, Goldman & Spiizer, attorneys; Mr. Henry M. Spiizer, of counsel).

      Mr. Edward E. Kuebler argued the cause for respondent Hateo Chemical Company, a division of W. R. Grace & Company, a corporation, and W. R. Grace & Company, a corporation.

      Mr. Luke A. Kiernan, Jr. argued the cause for respondent Public Service Electric and Gas Co. (Mr. Herman H. Wille, Jr., of counsel).

      Mr. John M. Walsh argued the cause for respondent Bethlehem Steel Corporation ■—■ Buffalo Tank Division (Messrs. O’Mara, Schumann, Davis & Hession, attorneys).
   The opinion of the court was delivered by

Labrecqtje, J. A. D.

In this wrongful death action plaintiff Julia Gallas, administratrix ad prosequendum of the estate of her husband Stephen, appeals from judgments of involuntary dismissal entered at the conclusion of the case in favor of defendants Public Service Electric and Gas Company (Public Service), Hateo Chemical Company and IV. E. Grace & Company (Grace) and Bethlehem Steel Corporation — Buffalo Tank Division (Bethlehem).

Decedent had been employed as a welder by K. L. 0. Welding Erectors Co. (K. L. 0.) for eight to ten years prior to his death. K. L. 0. is primarily engaged in the construction of steel tanks, smoke stacks and water towers. On January 23, 1964 Hateo Chemical Company (Hateo), a division of Grace, contracted with Bethlehem for the purchase and construction of a steel water tank on the premises of its chemical plant at Fords, Middlesex County. Bethlehem-subcontracted the construction of the tank to Kb L. 0., which was to construct the tank with fabricated steel provided by Bethlehem. The tank was to be 33 feet high with a;, diameter of 40 feet and a capacity of 300,000 gallons. The foundation for the tank — consisting of a concrete ring wall extending four feet below and two feet above ground, and filled with sand — was to be constructed by another contractor and was, in fact, ready at least two weeks prior to the accident. It was located to the left of the access road into this portion of the premises and beyond a fence which separated the parking lot from this area.

On the morning of September 21, 1965 three K. L. 0. employees, including the decedent and Patrick Ivan, K. L. Ods field superintendent, visited the job site, but did no work and remained for only a few hours. The mobile crane or “cherry picker” here involved — which was to be used in the construction of the tank — had arrived earlier in the day and was on a trailer which was parked in the Plateo parking lot. Mounted on caterpillar treads and powered by a gasoline motor, the crane had a 26-foot boom, mounted on top, which could be raised or lowered and could be turned in all directions (360 degrees).

On the following morning Ivan, Gallas and Gnral, another welder, returned to the job site at approximately 8 a.m. In the absence of the regular crane operator (he was not due to arrive until 10:30 a.m.), Ivan — who was qualified ■— received permission to operate the crane. In the meantime a truckload of steel plates to be used on the job had arrived and Ivan asked the driver of the truck to move the trailer from the parking lot to the job site. The trailer was then brought through the gate at the far end of the parking lot to a position on the access road within 50 feet of the job site. The access road was macadam and ran at a slight incline downhill from the gate. Some 75 feet beyond the point where the trailer was first stopped the access road was crossed by two electric lines, 26 feet high, each consisting of three wires mounted on wooden poles, which led into a power substation owned by Hateo, located approximately 200 feet from the job site. The wires •— which, it later appeared, carried 26,400 volts ■— were uninsulated. They were operated and maintained by Public Service whose employees had allegedly last inspected them on September 21, 1965.

Before the crane was actually unloaded, the trailer had to be backed down the access road a few more feet (towards the wires) to facilitate the passage of an oil delivery truck. The crane was then backed off the trailer through the use of skids approximately 18 feet long, and was moved three to four feet beyond the skids. At this time, the boom was down flat and pointed toward the gate. Then, upon noticing a faulty cable, Ivan directed Gallas to assist him in changing it. When installing a new cable it is the usual practice to raise the boom in order to insure that the cable remains taut. The new cable was almost on and Ivan had started to raise the boom, when another truck driver asked that the crane be moved. Acceding to this request, Ivan backed the crane another 30 feet down the road toward the wires. The front of the crane (the radiator) was now only ten feet (using an imaginary perpendicular plum line) from the nearest wire. Ivan, who by then was aware of the presence of the electric wires, then proceeded to raise the boom to an angle of 70 degrees and instructed Gallas to get a “bull pin” (a foot long piece of tapered steel) and hit the new cable so that it would be tight as it was wrapped around the cable drum. The crane was then several feet away and to the right of a stack of from one to two hundred metal barrels, piled three and four high. As Gallas was in a position between the crane and the barrels doing as he was ordered, the boom in some manner contacted the overhead wire and the electric current passed through him. Ivan testified he leaped from the crane and was immediately “bolted” about ten feet. He stated that although the hog line — a supporting cable extending from the top of the boom backward to the rear of the crane — had been at least three feet from the nearest wire before the accident, afterwards it was in contact with it. The area surrounding the crane, including the stack of barrels, remained electrified until someone knocked the cable away from the latter.

At the conclusion of the testimony defense motions for dismissal were granted, the court finding that absent knowledge by Public Service of the work being performed by K. L. 0., the proofs could not support an inference that it had violated any statutory duty or its common law duty to exercise a high degree of care in installing and maintaining its wires and poles. It ruled that the installation conformed with the electrical code requirements and that it was not foreseeable that work would be done in proximity to the wires without notice to it as required by statute. The court also determined that Bethlehem owed neither a statutory nor a common law duty to plaintiff since it had merely engaged the services of K. L. 0. and exercised no control over the job, and that Grace (Hateo) breached no duty owing to decedent since (1) it was not obligated to notify Public Service of the impending work to be done by K. L. 0. or Bethlehem, (2) it was not required to guard against the hazard posed by the electric wires and (3) the movement of the boom by Ivan was an independent intervening cause which was not within the realm of foreseeability. Plaintiff appeals from the court’s ruling as to all three defendants.

It is axiomatic that in passing upon a defendant’s motion for involuntary dismissal the court is compelled to view plaintiff’s evidence as true and draw therefrom every legitimate inference of fact in her favor. Long v. Landy, 35 N. J. 44, 53-54 (1961). The motion is to be denied unless it can be said that reasonable men may not honestly differ as to whether defendant had breached a duty owing to plaintiff. Black v. Public Service Elec. & Gas Co., 98 N. J. Super. 366, 376 (App. Div. 1968). Plaintiff urges that each of the defendants owed a duty to decedent and the evidence adduced was sufficient to call for a jury determination as to whether there had been a breach of that duty.

AS TO BETHLEHEM STEEL

In seeking to impose liability upon Bethlehem, plaintiff relies principally upon its omission to give notice to Public Service as allegedly required by N. J. S. A. 34:6-47.5. That statute then provided:

“When any operations are to be performed, tools or materials are to be handled, or equipment is to be moved or operated, within six feet of any high-voltage line, the person or persons responsible for the work to be done, shall promptly notify the operator of the high-voltage line of the work to be performed and such person shall be responsible for the completion of the safety measures, which are required by sections two and three of this act, before proceeding with any work which would impair the aforesaid clearance.”

A high voltage line is defined as one carrying in excess of 750 volts. N. J. S. A. 34:6-47.1. Here, as noted, the voltage was 26,400.

The trial court interpreted N. J. S. A. 34:6-47.5 as placing responsibility for compliance with it upon the party exercising control and dominion over the work project and reasoned that since the evidence failed to demonstrate that Bethlehem was exercising such control it was not a “person * * * responsible for the work to be done.”

Plaintiff urges that the court erred in so holding and that by virtue of the statute Bethlehem (as well as Grace) was required to notify Public Service of the impending work to be performed by El. L. 0. It is conceded that no such notice was given by either.

We know of no reported case in this State which has passed upon the issue presented. The cited section was a portion of the so-called High Voltage Lines Act, L. 1948, c. 249. Section 2 thereof, N. J. 8. A. 34:6-47.2, provided:

“No person, firm, or corporation, or agent of same, shall require or permit any employee to perform any function in proximity to high-voltage lines; to enter upon any land, building, or other premises and there to engage in any excavation, demolition, construction, repair or other operation; or to erect, install, operate or store in or upon such premises any tools, machinery, equipment, materials, or structures, including house moving, well drilling, pile driving or hoisting equipment, unless and until danger from accidental contact with said high-voltage lines has been effectively guarded against in the manner hereinafter prescribed.”

From our consideration of sections 2, 3, 4 and 5 of the act, N. J. 8. A. 34:6-47.2, 3, 4 and 5, we are satisfied that they had application to employers whose employees would be subject, in the performance of the work required of them, to danger from high voltage lines. This construction is confirmed by the 1966 amendments to the cited sections. Section 2 now recites that “no employer or supervising agent of an employer shall require or permit an employee, etc.” As noted, section 5 as amended refers to activity “requiring precautionary action under section 2 of this act.”

Here the “activity” was the construction of the water tank and, so far as the evidence disclosed, K. L. O. was the employer, contractor or other person responsible for its construction. There was a total absence of proof upon which to base an inference that Bethlehem was exercising control over the job at the time in question. We therefore hold that the involuntary dismissal as to Bethlehem was proper. Cf. Hayden v. Paramount Productions, 33 Cal. App. 2d 287, 91 P. 2d 231 (D. Ct. App. 1939); Dees v. L. F. Largess Company, 1 Mich. App. 421, 136 N. W. 2d 715 (Ct. App. 1965); Mack v. Marshall Field & Co., 218 N. C. 697, 12 S. E. 2d 235 (Sup. Ct. 1940).

AS TO PUBLIC SEEYICE

On the issue of the liability of Public Service plaintiff contends, in substance, that, in line with its duty to exercise a high degree of care in connection with the maintenance of its high tension line, it should have given warning of the danger and should have taken steps “to avoid or remedy the dangerous condition resulting from the performance of the work herein involved.” She further challenges the exclusion of the testimony of her electrical expert under whose interpretation of the National Electrical Safety Code, Public Service could have been held to be in violation.

We concur in the court’s conclusion, based upon its interpretation of the Code, that the power line in question did not violate the standards fixed by the National Electrical Safety Code in the manner of its installation or maintenance. The Code was adopted by the Board of Public Utility Commissioners pursuant to R. S. 48:2—23 and its interpretation was for the court rather than plaintiff’s expert. Manning v. Public Service Elec. & Gas. Co., 58 N. J. Super. 386, 392 (App. Div. 1959).

Plaintiff urges that even if it be determined that there was compliance with the Code, Public Service remained under a common law duty to exercise a high degree of care for the decedent’s safety while he was employed upon the premises. The law applicable in such a situation has been fully set forth in other cases and need not be repeated here. See Beck v. Monmouth Lumber Co., 137 N. J. L. 268 (E. & A. 1947); Manning v. Public Service Elec. & Gas Co., supra, and Black v. Public Service Elec. & Gas Co., supra. Plaintiff urges that there was evidence to sustain a finding that this duty was violated. We disagree.

Eecovery on the basis of violation of its common law duty depended upon a showing that Public Service had failed to act (or had acted improperly) in a situation where an accident such as the one here involved was reasonably foreseeable. Manning v. Public Service Elec. & Gas Co., supra, 58 N. J. Super., at p. 395; Beck v. Monmouth Lumber Co., supra, 137 N. J. L., at pp. 272—73. Here its power lines were located beyond the parking lot in an area which could be reached only by passing the guard at the gate and then passing through another gate which separated the parking lot from the area. The record is devoid of proof that Public Service knew or should have known at the time they were installed in 1960 that tanks would be constructed in their vicinity, and that such construction would be undertaken without the notice to it required by the High Voltage Lines Act. Cf. Manning v. Public Service Elec. & Cas Co., supra, 58 N. J. Super, at p. 397. We note that the Code did not require the placing of signs on poles which, as here, cannot be climbed.

In the absence of prior notice, the duty imposed upon Public Service, whether by N. J. S. A. 34:6-47.5 (as then in effect) or at common law, depended upon whether it had notice of the construction here involved, Manning v. Public Service Elec. & Gas Co., supra, at p. 396; Black v. Public Service Elec. & Gas Co., supra, 98 N. J. Super., at p. 375. It is conceded that it received no express notification, and we are satisfied that the proofs could not support a finding that it had implied notice thereof. Erom the fact that the Public Service employee who allegedly had inspected the line on the day prior to the accident could have seen a fiat-bed trailer carrying a mobile crane, it cannot be said that it was chargeable with notice that a tank was to be constructed in close proximity to its wires. The trailer was located in the parking lot at least 250 feet from the construction site and separated from it by a fence. The boom of the crane was down and there were concededly no signs of activity in connection with it. To all intents and purposes, it would have been reasonable to conclude that it was merely being parked there — or that its owner would give the statutory notice if and when it was to be operated in the vicinity of the wires. Manning v. Public Service Elec. & Gas Co., supra, 58 N. J. Super., at p. 397.

Plaintiff challenges the striking of the testimony of its electrical expert, Newton. His qualifications were not disputed. His testimony was stricken at the conclusion of the case, substantially for the reason that it was based upon his own interpretation of the Code whereas, under the court’s interpretation, which was binding, no Code standard had been violated. Plaintiff now argues that this opinion, given in response to a hypothetical question, was not based solely upon his contention that the Code had been violated, but was also based upon the failure of Public Service to follow good engineering practice.

While it would have been better had the trial judge clarified his ruling by confining the exclusion to such portions of the testimony of the witness as were based upon the asserted violation of the Code, we are cognizant of the difficulty which a jury would have in applying his ruling and we conclude that, in any event, plaintiff suffered no prejudice from his omission to do so. R. R. 1:5-3 (b).

When asked to justify his opinion, in response to a hypothetical question, that the installation of the overhead conductors was not in accordance with good, safe and accepted practice, the witness testified that the provisions of the Code which required that such installations be designed so as to reduce hazards as far as was practicable, had not been met. Later, however, he testified:

“It is, in my opinion, standard practice to run overhead lines of this sort uninsulated and I believe, in my opinion, there is good reason for this.”

While he later modified this opinion somewhat, he also testified:

“Q And compliance with the code, in a general sense, means that there’s been good engineering practices followed so long as the code is complied with, don’t you concede that?
A As long as the code is complied with.
Q As long as the code is complied with?
A Correct.
Q You would not be critical of the engineering practices of the utility as long as it complied with the code?
A That’s correct.” (Emphasis added)

And further:

“Q Well, we had decided, we had agreed, that there were no specific requirements in the code for wires to go underground?
A That’s correct.
Q And we had agreed that there was no specific requirement in the code that the wires be covered with insulation?
A That’s correct.
Q And we agreed that the eode required on public streets a minimum height of 22 feet under the clearance?
A That’s correct.

Paragraph 211 of the Code, on which the witness principally relied, provided that, “All electric supply and communication lines and equipment shall be installed and maintained so as to reduce hazards to life as far as practicable.55 However, he conceded that this was a fair statement of the intendment of that portion of the Code, and the court ruled that it was no more than a general statement ot the Code’s objectives. Paragraph 214A of the Code, on which Newton also relied, provided that:

“To promote safety to the general public and to employees not authorized to approach conductors and other current-carrying parts of electric supply lines, such parts shall be arranged so as to provide adequate clearance from the ground or other space generally accessible, or shall be provided with guards so as to isolate them effectively from accidental contact by such persons.”

He conceded that this section called for either adequate clearance or proper guarding of the lines. He further conceded that paragraph 232 of the Code provided for clearances of 22 feet over public streets, alleys or roads in urban or rural districts, and over driveways to residences and garages. Here, as noted, at the point where the wires crossed the roadway the clearance exceeded 26 feet.

Further, the witness’s opinion in response to the hypothetical question, assuming it to have been based upon failure to follow good engineering practice, was posited upon certain factors which were not present in the case. Evidence Rule 56(2). Cf. Stanley Co. of America v. Hercules Powder Co., 16 N. J. 295, 305 (1954). Thus it was based upon the use of a crane to pile barrels in the vicinity of the wires, the use of the road by “all sorts of vehicles” and the presence of “other towers in the vicinity.” Actually, the “road” in question was no more than the means whereby access was had from the parking lot to this somewhat restricted area of Hatco’s premises. It was separated from the parking lot by a metal fence equipped with a gate which could be swung across the roadway. There was no proof that cranes were being used in that area for any purpose at the time the line was installed and it is clear that there were no towers in the vicinity of the power line until construction of the water tank here involved.

We fail to see how plaintiff could have suffered any legal prejudice from the striking of the testimony. Its exclusion was not inconsistent with substantial justice. Lieberman v. Saley, 94 N. J. Super. 156, 162 (App. Div. 1967).

We have also considered plaintiff’s challenge to the court’s rulings on objections to questions put to Newton on redirect and find no abuse of discretion.

It follows that the involuntary dismissal as to defendant Public Service should be affirmed.

AS TO GEACE

Turning first to plaintiff’s contention that the evidence presented raised jury questions as to whether Grace had breached its statutory duty as imposed by N. J. S. A. 34:6— 47.2 and 41.5, we are satisfied that neither section of the statute required it to control the activities of decedent or to give the statutory notice for his protection. Contrary to plaintiff’s contention, N. J. S. A. 34:6-47.2 imposed a duty on a “person, firm, or corporation” only with respect to its own employees. Here, Grace neither exercised, nor purported to exercise any control over K. L. O.’s employees.

An employee of an independent contractor, such as was Gallas, who is engaged in work on the premises of an owner who has contracted with his employer for the work he is doing, is an invitee of the owner. Gudnestad v. Seaboard Coal Dock Co., 15 N. J. 210, 219 (1954); Farrell v. Diamond Alkali Co., 16 N. J. Super. 163, 161 (App. Div. 1951); Beck v. Monmouth Lumber Co., supra, 131 N. J. L., at p. 215. As to him, the owner is duty bound to exercise reasonable care to maintain the premises in a reasonably safe condition for the purposes embraced within the invitation. Piro v. Public Service Elec. & Gas Co., 103 N. J. Super. 456, 463 (App. Div. 1968), affirmed 53 N. J. 7 (1968); Zentz v. Toop, 92 N. J. Super. 105, 111 (App. Div. 1966), affirmed 50 N. J. 250 (1961); Murphy v. Core Joint Concrete Pipe Co., 110 N. J. L. 83, 86 (E. & A. 1932).

Here K. L. O. was to construct a water tank 33 feet high at a point which was to the left of the roadway leading into the premises and just beyond the fence which separated the premises from the parking lot. The distance from the tank to the nearest wire of the power line was approximately 50 feet. The tank was to be built of steel plates which were to be welded on the job. Of necessity this required the use of a crane which would be capable of raising the plates so that the tank could be built to the prescribed height. In the performance of the work the crane would necessarily be required to operate over a work area which, at the least, would give it access to all sides of the tank and to the place where the materials to be used were to be stored.

Erom the foregoing the jury might well have concluded that reasonable circumspection and foresight dictated the taking of reasonable precautions to prevent injury, by reason of the proximity of the power line, to those about to embark on construction of the tank. Kappertz v. R. B. McEwan & Son, 106 N. J. L. 484 (E. & A. 1929); Beck v. Monmouth Lumber Co., supra. The fact that the fatal accident occurred when the crane was being made ready to begin construction rather than after the actual construction had begun did not negate liability. It was not necessary that Grace should have anticipated the very occurrence which resulted from its asserted wrongdoing so long as it was in the realm of foreseeability that some harm might occur thereby. Mayer v. Housing Auth. of Jersey City, 84 N. J. Super. 411, 425 (App. Div. 1964), affirmed 44 N. J. 567 (1965); Avedisian v. Admiral Realty Corp., 63 N. J. Super. 129, 133 (App. Div. 1960); Black v. Public Service Elec. & Gas Co., supra. Here the jury could well have found that it was within the realm of foreseeability that the boom of the crane might accidently contact the power line while in or about the work area.

Defendant urges that the trial judge determined that the hazard presented by the power lines fell “squarely in the category of hazards not attributable to any breach of duty on the part of Hateo” and hence the dismissal was correct.

In so ruling the trial .judge relied heavily upon Wolczak v. National Electric Products Corp., 66 N. J. Super. 64 (App. Div. 1961). We hold that case to be clearly inapposite. There plaintiffs injuries arose from a fall into a tank which occurred while he was in the process of drilling on an overhead steel beam, inches wide, in connection with the installation of a monorail system to service the premises, and the issue was whether the owner, by its prior installation of tanks beneath the place where the work was to be done and leaving them uncovered, had violated its duty to provide plaintiff with a safe place in which to work. In this context it was held that the owner had breached no duty to Wolczak, an ironworker of 15 years’ experience, where the maneuver attempted by him “was a not infrequent one in the ironworker’s repertoire.” (at p. 76). Compare Schwartz v. Zulka, 70 N. J. Super. 256, 263 (App. Div. 1961), modified on other grounds 38 N. J. 9 (1962); Hardman v. Ford Motor Co., 70 N. J. Super. 275, 286 (App. Div. 1961) ; certification denied 36 N. J. 299 (1962).

Here the hazard occasioned by the power line was neither incidental to nor a part of the construction of the water tank, and decedent’s presence on the property bore no relation to it. See Reiter v. Max Marx Color & Chemical Co., 67 N. J. Super. 410, 413 (App. Div. 1960), affirmed 35 N. J. 37 (1961). Decedent was not a crane operator but a welder. He had no obligation with reference to the wires but was working under the orders of his superintendent, Ivan. Even had he been aware of the presence of wires overhead (of which there was no proof in the case) he would have had no knowledge that they carried the lethal charge testified to, and was not chargeable with such knowledge. See Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 8, 130 A. 2d 123, 128 (Sup. Ct. 1957). To all intents and purposes he could have concluded from their thickness that they were of low voltage and insulated. Cf. Beck v. Monmouth Lumber Co., supra, 137 N. J. L., at p. 275. On the other hand, Grace, on whose property and to whom the current was being furnished, was chargeable with knowledge of the hazard which it posed, and was obligated to take such precautions as would have been reasonable under the circumstances to make the premises safe against the danger. Restatement, Torts (2d ed. 1965) § 343, pp. 215-16-; Zentz v. Toop, supra, 92 N. J. Super. pp. 111-114. This is especially so where, as here, the attention of one not charged with operation of the crane would normally be directed to the work being performed by him rather than to the manner of its operation. Zentz v. Toop, supra., at pp. 114-15.

Eor the foregoing reasons the allowance of the motion for involuntary dismissal in favor of Grace was error.

Affirmed as to defendants Bethlehem and Public Service and reversed as to Grace (Hateo).

        N. J. S. A. 34:6-47.5 was amended in 1966 to read:
      “Whenever activity is to be performed requiring precautionary action under section 2 of this act, the employer, contractor or other person responsible for the activity shall, promptly notify the owner or person in charge of the high-voltage line of the intended activity and shall fully comply with and shall be responsible for the cost and for the completion of the precautionary action required under section g of this act before proceeding with such activity.” (Emphasis added)