Cogliati v. Ecco High Frequency Corp.

• Citation: 181 N.J.Super. 579,439 A.2d 91
• Parties: Charlotte COGLIATI, Plaintiff-Appellant, v. ECCO HIGH FREQUENCY CORP., a New Jersey Corporation, Emil R. Capita and BernardOster, Defendants-Respondents, v. INVESTORS INSURANCE COMPANY OF AMERICA, Third-Party Defendant-Respondent.
• Decision Date: 09 December 1981
• Court: New Jersey Superior Court — Appellate Division

Page 579

181 N.J.Super. 579

439 A.2d 91

Charlotte COGLIATI, Plaintiff-Appellant, v. ECCO HIGH FREQUENCY CORP., a New Jersey Corporation, Emil R.

Capita and BernardOster, Defendants-Respondents, v. INVESTORS INSURANCE COMPANY OF AMERICA, Third-Party

Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 24, 1981.

Decided Dec. 8, 1981.

As Corrected Dec. 9, 1981.

Melvin R. Solomon, Hackensack, for plaintiff-appellant (Parsekian & Solomon, Hackensack, attorneys).

Joseph S. Nester, Jersey City, for defendants-respondents Ecco High Frequency Corp. and Emil R. Capita (Russo, Tumulty & Nester, Jersey City, attorneys; Joan M. Donnelly, Jersey City, on the brief).

Arthur D. Pajonk, Ridgefield, for defendant-respondent Bernard Oster (Pajonk & Pajonk, Ridgefield, attorneys).

Milton Liebowitz, Englewood, for third-party defendant-respondent Investors Ins. Co. of America (Liebowitz, Liebowitz & Clark, Englewood, attorneys).

Before Judges MATTHEWS and PRESSLER.

The opinion of the court was delivered by

PRESSLER, J. A. D.

These are consolidated appeals from summary judgments in what is essentially a pedestrian-sidewalk fall-down case.

Plaintiff Charlotte Cogliati claims to have fallen on a sidewalk abutting commercial premises located on Kennedy Boulevard in North Bergen. It is her further claim that she sustained serious physical injuries and incurred substantial medical expenses as a result of the fall. Contending that the fall was caused by the negligent maintenance of the sidewalk, she brought a personal injury action against the abutting owners, identified by her as defendants Ecco High Frequency Electric Corp. and Emil R. Capita. She also joined as a party-defendant Bernard Oster, who had sold the abutting premises to Ecco and Capita some 31/2 months before the accident. Upon consummation of the sale, Oster had cancelled his liability policy covering the premises. Relying on the cancellation, Oster's carrier, Investors Insurance Company of America (Investors), refused to defend and indemnify. Accordingly, Oster filed a third-party complaint against Investors seeking a declaration of its obligations to him. All parties defendant moved for and were granted summary judgment dismissing the complaint on the ground that under the common law of New Jersey as then most recently stated by the Supreme Court in Yanhko v. Fane, 70 N.J. 528, 362 A.2d 1 (1976), property owners owed no duty to the pedestrian public to maintain the abutting sidewalk in good repair but were only responsible for negligent construction or repair or for direct use or obstruction rendering the sidewalk unsafe. On the basis that Oster had no responsibility to plaintiff, summary judgment was also granted in favor of Investors dismissing Oster's third-party complaint against it for indemnification. Plaintiff appeals the summary judgment dismissing her complaint and Oster appeals the summary judgment dismissing his third-party complaint.

Pending the appeals in this court, the New Jersey Supreme Court decided Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 432 A.2d 881 (1981), overruling Yanhko v. Fane, in respect of commercial landowners and imposing upon them liability to pedestrians injured as a result of their negligent failure to maintain abutting sidewalks in reasonably good condition. All parties concede that if the holding in Stewart is applied to the facts here, the summary judgment entered against plaintiff would have to be reversed and she would accordingly be entitled to proceed with her action. Thus, the only issue before us is defendants' contention that Stewart must be applied prospectively only.

Recognizing that Stewart does not expressly address the retrospectivity problem, we are nevertheless persuaded that its ruling should be retrospectively applied, at least in respect of pending cases. As the Supreme Court made clear in Darrow v. Hanover Tp., 58 N.J. 410, 413, 278 A.2d 200 (1971), the courts of this State "have generally followed the traditional rule that the overruling of a judicial decision is retrospective in nature." And see Fox v. Snow, 6 N.J. 12, 14, 76 A.2d 877 (1950); Busik v. Levine, 63 N.J. 351, 360-361, 307 A.2d 571 (1973), app. dism. 414 U.S. 1106, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973). Darrow further made clear that the basis for the doctrine of retrospective application is pragmatic rather than theoretical, resting upon the judicial perception that ordinarily "a weighing of the various policies involved called for retrospectivity." 58 N.J. at 413-414, 278 A.2d 200. Thus, the presumption is in favor of retrospectivity, and that presumption can be overcome only by a clear demonstration in a particular case that there are sound policy reasons for according a judicial decision prospective application only.

Such a case was Willis v. Conservation & Ec. Develop. Dep't, 55 N.J. 534, 264 A.2d 34 (1970), in which the court overruled the doctrine of sovereign immunity of the State in respect of tort liability. That decision was expressly limited to prospective application primarily because of its extraordinary impact on the relationships among the branches of government. As Chief Justice Weintraub cogently observed:

There are no appropriations to pay the obligations the courts might declare, not even, perhaps, to handle the caseload which may ensue. The executive branch will need time to prepare for the additional burden. Then, to, the Legislature may wish to require timely notice of claims to permit an opportunity to investigate. Or the Legislature may choose to fix a monetary limit on recoveries, or to exclude some category of damages, or to adopt a concept of liability different from that of the common law, or to entrust the whole matter to an administrative agency. Mindful as we must be that our dollar judgments will be merely declarations, dependent for their ultimate value upon what the Legislature is willing to do to satisfy them, it is appropriate to postpone the effective date to permit an...