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Bridgeton, City of v. B.P. Oil, Inc.

ELR Citation: 7 ELR 20357
369 A.2d 49/146 N.J. Super. 169, (N.J. Super. Ct., 12/17/1976)

Extending the concept of strict liability in tort for damages caused as a result of the storage of oil as an ultrahazardous or pollutant substance, the court nonetheless finds that the city is not a proper plaintiff to recover for the expenses of cleanup as part of its governmental functions. Because of leaks in oil tanks on property owned and leased by defendants, the city used its employees and purchased special equipment to prevent the spread of the resulting oil spill and to protect against possible fire hazards. In response to the city's action for expenses, defendants moved for summary judgment, which the court granted.

In discussing the principles regarding the storage of dangerous substances on the land, the court finds that the Rylands v. Fletcher rule has been adopted in New Jersey to the extent that a reasonably prudent man has a duty to anticipate danger due to a hazardous condition and must, therefore, exercise care commensurate with the risk. Black v. Pub. Serv. Elec. & Gas Co., 56 N.J. 63, 265 A.2d 129 (1970); Brownsey v. Gen. Printing Ink Corp., 118 N.J.L. 505, 193 A. 824 (1937). In addition, the court notes international (1954 and 1973 marine pollution conventions), federal (FWPCA, 33 U.S.C. §§1251 et seq., ELR 41100), and state (N.J. Stat. Ann. 26:3B-4, 58:10-23.1 et seq.) programs concerning oil spills and liability for cleanup costs. New Jersey law imposes strict liability for legislatively recognized dangers. The court then, recognizing both the substantial risk in the storage of oil and consequent high standard of care and the developing insight into the impact of pollution upon the environment, extends the concept of strict liability to those who store ultrahazardous or pollutant substances.

In considering whether the city is a proper party plaintiff to recover for damages from the storage of oil, the court acknowledges that the city does not rely on a legislative enactment authorizing assessment of costs but rather urges a common-law principle that a person should pay when the person's activities result in excessive use of a city's fire department. The court rejects this notion because fire protection is a governmental duty the whole cost of which is absorbed by the community.

Thus, the possessor of a pollutant keeps it on his pemises at his peril, following a policy in New Jersey and society of strict liability rather than negligence. Defendants' motion for summary judgment is granted, however, because, although the city may recover for damages to its property, it may not recover for its acts of government.

The full text of this opinion is available from ELR (7 pp. $1.00, ELR Order No. C-1116).

Counsel for Plaintiff
Allan H. Harbert
85 W. Broad St., Bridgeton NJ 08302
(609) 451-9100

Counsel for Defendants
Ira G. Megdal
Hyland, Davis & Reberkenny
499 Cooper Landing Rd., P.O. Box 459-460, Cherry Hill NJ 08002
(609) 667-6000

Michael Brooke Fisher
Lummis, Moore, Fisher, Pancari & Pagliughi
56 Fayette St., Bridgeton NJ 08302
(609) 455-1700

Miller, J.