Weinberg v. Dinger , 106 N.J. 469 ( 1987 )

HANDLER, J.,

concurring in part and dissenting in part.

I agree with the majority’s decision to abrogate part of water companies’ immunity in suits claiming that the companies negligently failed to provide sufficient water pressure to extinguish a fire. However, I disagree with the majority’s decision to retain the water companies’ immunity in cases involving subrogation claims.

Immunities are generally judge-made doctrines created long ago, when very different social circumstances and legal doctrines justified their existence. “In the tort field, immunities, which furnish ‘absolution from liability’, stand as conflicting exceptions to the general principle that there should be reparation for wrongful injury. Consistent with this conception of justice and fairness many immunities in the evolution of the law have withered or perished as legal relics not fit for survival in contemporary times.” Merenoff v. Merenoff, 76 N.J. 535, 547 (1978) (citation omitted). This Court has removed most of the ancient tort immunities. See Foldi v. Jeffries, 93 N.J. 533 (1983) (parental immunity); Merenoff v. Merenoff, supra (interspousal immunity); Willis v. Dept. of Conservation & Economic Dev., 55 N.J. 534 (1970) (sovereign immunity); Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29 (1958) (charitable immunity).

The judicial role in cases such as this one is to cleanse the tort system of its irrational and anomalous elements. The result should be principled, consistent rules, applied uniformly. Here, liability for negligence should apply broadly, even if the defendant is a water company, and even if the plaintiff is an insurance company.

While I do not think the courts should be indifferent to the social consequences of liability rules, they should humbly view their ability to gather and evaluate relevant evidence. The judicial role is at its strongest in making sure that rules are applied consistently and rationally. The judicial role is far less strong in predicting those few occasions when strong social interests would be harmed by the consistent application of liability rules.

In the present case, I do not think that the Court has before it sufficient information to predict dire consequences if the water companies’ immunity is fully lifted. Its decision is constructive and sound in its holding that the legal and social policies no longer justify immunizing water companies from their negligence in supplying water for firefighting purposes. However, the Court takes a quantum leap back by limiting the abrogation of immunity to uninsured or underinsured victims.

The principle against immunity from tort liability should, for the moment, stand. The legislature is the proper forum for determining whether societal interests require a reimposition, in whole or in part, of the water companies’ immunity, and if there is to be partial or limited immunity, whether that should be

achieved directly, or indirectly by modifying the insurance laws. There is no reason to believe that the legislature will not act if such action is warranted. E.g. N.J.S.A. 59:1-1 to 59:12-3 (the Tort Claims Act, which reimposed in part the State’s sovereign immunity); N.J.S.A. 2A:53A-7 (which reimposed in part the charitable immunity).