Cicco v. Marlou Holding Co.

• Decision Date: 20 November 1945
• Parties: DE CICCO v. MARLOU HOLDING CO.
• Court: New Jersey Circuit Court

44 A.2d 898

DE CICCO

v.MARLOU HOLDING CO.

Circuit Court of New Jersey, Atlantic County.

Nov. 20, 1945.

Action at law by Rita De Cicco, administratrix ad prosequendum of the estate of John A. De Cicco, deceased, against Marlou Holding Company, a corporation of the State of New Jersey, wherein defendant filed a motion to strike out the amended complaint.

Motion denied.

John B. Baratts, of Atlantic City, for plaintiff.

DeBrier & Shahadi, by George T. Naame, all of Atlantic City, for defendant.

BURLING, Judge.

This is a motion to strike the amended complaint on the ground that: ‘The complaint discloses no cause of action, in that, said cause is based upon the doctrine of res ipsa loquitur and no facts are set forth in which this doctrine may be invoked.’ By stipulation the notice and reason applied to the complaint as amended.

In a motion of this character, all facts adequately alleged in the complaint must be accepted as true, as well as all inferences of fact which can be logically and legitimately drawn from them. Campbell v. Pure Oil Co., 1937, 194 A. 873, 15 N.J.Misc. 723.

The pertinent facts as alleged in the amended complaint are found in paragraphs 1, 2 and 3 of the amended complaint as follows:

‘1. At all the times hereinafter mentioned and for a long period of time prior thereto, the defendant was the owner, operator and entity in control of a certain apartment building, known as Loumar Apartments, situate on Pacific Avenue, opposite the foot of Ocean Avenue in the City of Atlantic City, County of Atlantic and State of New Jersey.

‘2. At all the time hereinafter mentioned the plaintiff's intestate was an air raid warden in and about the course of his duties along and upon the said Pacific Avenue, a public highway, in the City, County and State aforesaid.

‘3. On September 14, 1944, plaintiff's intestate, while succoring distressed wayfarers in a storm then in progress and while in the course of his duties as aforesaid, was struck by a piece of defendant's said building, which had become loosened and detached and fell therefrom; and from his injuries so received died.'

A fallen object is the common circumstance calling for the invocation and application of the doctrine of res ipsa loquitur. Cleary v. Camden, 1937, 118 N.J.L. 215 at page 219, 192 A. 29 affirmed 1937, 119 N.J.L. 387, 196 A. 455.

In Soriero v. Pennsylvania R. Co., 1914, 86 N.J.L. 642 at page 643, 92 A. 604, 605, L.R.A.1915C, 710, Ann.Cas.1916E, 1071, which involved the falling of a stone from the wall of the defendant upon the plaintiff, the rule is stated thus:

‘The gravamen of the allegation imposing liability is that the plaintiff was lawfully upon the public highway, when a stone, due to defendant's carelessness in maintenance, fell, causing the damage complained of. That situation brings the case within the familiar principle which attributes negligence to an abutting owner of property who so negligently manages the same that a passerby lawfully upon the highway is injured.

‘Addison states the principle thus: ‘Every occupier of a house adjoining a highway is responsible for injuries to passers-by, arising from things falling from the house into the streets, unless he can show that the fall arose from storm or tempest, or some inevitable accident.’ 1 Addison on Torts 253, and cases cited.

‘In 29 Cyc. 593, it is stated: ‘The doctrine under consideration has been applied in cases of materials or articles falling from buildings or other structures onto passers-by on a public street; and the unexplained falling of a building or other structure creates a presumption of negligence.’'

The defendant maintains the Court should take judicial notice that on the 14th day of September, 1944, there was a storm in Atlantic City of hurricane or tempest type and in doing so that the doctrine is not applicable and since there are no special allegations of actionable negligence, the cause of action must fall since it is not established that the accident occurred in the ordinary course of things.

This contention overlooks...