Cavanaugh v. Pappas

• Decision Date: 29 June 1966
• Docket Number: No. 5--767,5--767
• Citation: 91 N.J.Super. 597,222 A.2d 34
• Parties: Michael P. CAVANAUGH, an infant by his guardian ad litem, John Cavanaugh and John Cavanaugh, individually and Anna Cavanaugh, Plaintiffs, v. Spiros PAPPAS and Housing Authority of Plainfield, Defendants.
• Court: New Jersey County Court

Page 597

91 N.J.Super. 597

222 A.2d 34

Michael P. CAVANAUGH, an infant by his guardian ad litem John Cavanaugh and John Cavanaugh, individually and Anna Cavanaugh, Plaintiffs, v. Spiros PAPPAS and Housing Authority of Plainfield, Defendants.

No. 5--767.

Union County Court

Law Division, New Jersey.

June 29, 1966.

Joseph B. Hetfield, Plainfield, for defendant, Spiros Pappas (Hetfield & Hetfield, Plainfield, attorneys).

Arnold L. Simon, East Orange, for defendant, Housing Authority of Plainfield (Simon & Kaufman, East Orange, attorneys).

FELLER, J.S.C.

This matter is before this court on defendant Spiros Pappas' motion for judgment on the pleadings.

From the complaint filed by plaintiffs, this suit sounds in negligence and nuisance. The facts of the case are as follows. On October 3, 1964 plaintiff Anna Cavanaugh fell while carrying Michael P. Cavanaugh, an infant, on a public sidewalk in front of premises known as #201 West Front Street, in the City of Plainfield, New Jersey. It is plaintiffs' contention that at the time Anna Cavanaugh fell, the sidewalk in front of the aforementioned premises 'was in a state of disrepair, broken up, and had been improperly repaired as to create a nuisance.' As a result of this condition Mrs. Cavanaugh, while carrying Michael, fell, injuring herself as well as the infant. From this fall and the resulting injuries, plaintiffs sustained damages for which this suit has been instituted seeking recovery for the damages and costs.

Ownership of the premises at 201 West Front Street at the time in question is not in dispute. Shortly before this accident, on September 28, 1964, defendant Pappas had conveyed by deed, without reservation, the premises to codefendant Housing Authority of Plainfield. As a result of this deed, Pappas had definitely divested himself of title and all rights to possession or of re-entry for repairs or for any other purpose.

After the institution of this suit, the Housing Authority filed a cross-claim set forth in its answer, seeking indemnification from Pappas in the event liability should be determined against it. It further demands contribution from the Pappas, pursuant to the Joint Tortfeasors Contribution Act.

It must be stated here that plaintiffs did not appear to contest Pappas' motion nor does it appear that they intended to or wanted to contest it.

Pappas contends that since he sold the property in question before the alleged accident, he can in no way be held liable for the damages resulting from the injuries sustained as a result of the fall. He urges that this is true according to the law of this State, whether plaintiffs' complaint sounds in negligence, nuisance, or both.

In opposition to Pappas' contention, the Housing Authority argues that he can be held liable in part for the damages sustained by plaintiffs as a result of injuries sustained in the alleged fall. To support their argument, they cite case law to this effect.

Pappas made his motion on the basis of R.R. 4:12--3. This reads as follows:

'After the pleadings are closed but within such time as not to delay the any party may move for judgment on the pleadings, with briefs. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 4:58, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 4:58.'

In interpreting this rule, our courts have held that a court must on a motion of this type concern itself with the material allegations of fact precipitated by the pleadings in the light of the law on the subject of the same nature. Baldwin Const. Co. v. Essex County Board of Taxation, 24 N.J.Super. 252, 93 A.2d 800 (Law Div. 1952), affirmed 27 N.J.Super. 240, 99 A.2d 214 (App.Div.1953). In that case the court, with respect to a motion of the type made here, said:

'This residue of well-pleaded fact is accepted as true under Rule 3:12--3, supra, as it is under the federal rule which is its counterpart. Federal Rules Civil Procedure, Rule 12(c), 28 U.S.C.A.; Hackensack Water Co. v. North Bergen Twp., 103 F.Supp. 133 (D.C.N.J.1952). The movant admits not only the well-pleaded facts, but all legitimate inference which they accommodate. Kelly v. Hoffman, 137 N.J.L. 695, 61 A.2d 143, 5 A.L.R.2d 951 (E. & A. 1948). The power to exercise judgment on the pleadings is so drastic in result that it is exercised sparingly, and only in case the pleading, liberally construed in favor of the pleader, is clearly and palpably insufficient in a legal sense. Evangelista v. Public Service Coord. Transport, 7 N.J.Super. 164, 72 A.2d 534 (App.Div.1950).'

Keeping in mind the guidelines well enunciated in the above quotation, this court will now turn to the law applicable to the facts in this case.

Pappas relies primarily on two cases in support of his motion: Sarnicandro v. Lake Developers, Inc., 55 N.J.Super. 475, 479, 151 A.2d 48 (App.Div.1959), and McQuillan v. Clark Thread Co., 12 N.J.Misc. 409, 172 A. 370 (Sup.Ct.1934). In McQuillan plaintiff instituted suit seeking to recover damages for injuries sustained on property once owned by defendant but sold prior to the time the injuries sustained by plaintiff occurred. In denying recovery the court said:

'It would be a dangerous principle to declare that liability for injuries sustained by reason of negligence or maintenance of a nuisance continues after transfer of title. How long would the liability continue? When would the line be drawn?'

Turning to Sarnicandro, supra, the facts are as follows: Plaintiffs leased a portion of their son-in-law's and daughter's home which had been built and sold by the defendant. Two weeks after the son-in-law and daughter had taken possession they noticed that there was a defect in some outside concrete stairs. They notified defendant, but nothing was done and they took title. Some two years later plaintiff Saveria Sarnicandro while using the stairs fell and was injured. She and her husband sued defendant. The trial court granted summary judgment. On appeal, Judge Goldmann affirmed the trial court's decision. However, in his opinion he stated the following:

'There are some exceptions to the general rule just discussed. One is where the vendor creates a situation which interferes with the rights of the public or with the use or enjoyment of adjoining lands. In cases where the land is transferred in such a condition that it involves an unreasonable risk of harm to those outside the premises, the vendor has been held liable on the theory of a public or a private nuisance, at least for a reasonable length of time after he has parted with possession. Prosser, Torts, above, § 79, p. 463; 2 Harper and James, above, § 27.19, p. 1521; 2 Restatement, Torts, § 373, p. 1005. Although plaintiffs at the argument on the motion for summary judgment sought to predicate liability on the theory of nuisance (the issue was not raised in either the pleadings or pretrial order), that theory cannot avail them. The vendor created no danger to the public and did not interfere with adjoining land.'

As is obvious from the above statement, the general rule is that once the vendee has taken possession, the vendor of real estate is not subject to liability for bodily harm caused to the vendee or others while upon the premises by any dangerous condition, artificial or natural, which existed when the vendee took possession, but there is an exception to the application of this general rule. The rule is...