Coll v. Bernstein, A--223
| Decision Date | 24 May 1951 |
| Docket Number | No. A--223,A--223 |
| Parties | COLL v. BERNSTEIN et al. |
| Court | New Jersey Superior Court — Appellate Division |
Hyman W. Rosenthal, Newark, argued the cause for appellant (Marcus & Levy, Paterson, attorneys; Harry Chashin, Bayonne, of counsel).
Samuel Doan, Paterson, argued the cause for respondent, Charles C. Stalter, Paterson, attorney.
Before Judges McGEEHAN, JAYNE, and WM. J. BRENNAN, Jr.
The opinion of the court was delivered by
JAYNE, J.A.D.
The law does not confer upon every pedestrian who is caused to trip and fall over some defective condition on the surface of a public sidewalk a cause of action against the owner of the abutting premises for the recovery of damages for the injurious consequences of the mishap. The liability of such owner is circumscribed by principles which have become firmly established in our jurisprudence.
Fundamentally it is the rule of law that an owner is not responsible for defects in the sidewalk caused by the wear and tear of the elements or by the public usage. Rupp v. Burgess, 70 N.J.L. 7, 56 A. 166 (Sup.Ct.1903); Ford v. Jersey Central Power, &c., Co., 111 N.J.L. 112, 166 A. 490 (E.&A.1933); Schwartz v. Howard Savings Institution, 117 N.J.L. 180, 187 A. 171. (E.& A.1936); Lindemann v. F. W. Woolworth Co., 123 N.J.L. 208, 8 A.2d 321 (E. & A.1939); Snidman v. Dorfman, 7 N.J.Super. 207, 72 A.2d 795 (App.Div.1950).
The abutting owner is under no obligation to maintain the sidewalk in front of his property in repair unless in obedience to the requirements of a municipal ordinance, and the liability in the latter instance is the penalty imposed by the ordinance, and the failure to comply with the provisions of the ordinance does not give rise to a cause of action in favor of one who is injured by a defect due to wear and tear. Zemetra v. Fenchel Realty Co., Inc., 134 N.J.L. 358, 47 A.2d 890 (Sup.Ct.1946), affirmed 135 N.J.L. 205, 50 A.2d 895 (E. & A.1947); Fischer v. Salomone, 136 N.J.L. 431, 56 A.2d 428 (Sup.Ct.1948).
The mere occurrence of an accident, and the fact that a sidewalk has been in a defective and dilapidated condition for several years, to an extent that it may be said to constitute a nuisance, do not of themselves render an abutting owner liable to the injured party. Volke v. Otway, 115 N.J.L. 553, 181 A. 156 (E.& A.1935).
Liability descends upon the owner only where there is proof that as the owner of the adjoining premises he has been guilty of some wrongful act or failure or omission of duty.
It is not difficult for purposes of illustration to envision a case in which the owner's construction of a sidewalk was in its inception a nuisance which does not cease to be such after it passes under the control of subsequent owners, and contrast it with a case in which the wear and tear of the elements and public use have impaired and rendered dangerous, a walk that was originally safe and innocuous.
The imaginative cases serve to illustrate the distinction between a nuisance wrongfully created or maintained and a pavement merely out of repair.
Within the expansion of the principle are those cases in which the owner indirectly participates in the creation or maintenance of a nuisance. The basic rationalism underlying this class of cases finds expression in the decision in Freeholders of Hudson v. Woodcliff Land Co., 74 N.J.L. 355, 65 A. 844 (Sup.Ct.1907).
Such cases arise where it is disclosed by the evidence that the owner let the land and sidewalk for a use not consistent with the purpose for which the walk was constructed, that the owner had knowledge of the inconsistent and improper use of the walk and of the dangerous condition resulting therefrom and nevertheless for his benefit permitted and acquiesced in the continuance of such use. Davis v. Tallon, 91 N.J.L. 618, 103 A. 236 (E.&A.1918); Zak v. Craig, 136 A. 410, 5 N.J.Misc. 275 (Sup.Ct.1927); Prange v. McLaughlin, 115 N.J.L. 116, 178 A. 782 (E.&A.1935); Overman v. Trust Co. of New Jersey, 126 N.J.L. 86, 18 A.2d 615 (Sup.Ct.1941); Giuliana v. Ginnelly, 6 N.J.Super. 76, 69 A.2d 888 (App.Div.1949).
The predominant question presented for consideration in the present appeal is whether the evidence introduced in behalf of the plaintiff together with all of the favorable inferences logically and legitimately to be drawn therefrom adequately organized a cause of action of the lastmentioned classification. The trial judge thought not and authorized the entry of a judgment of involuntary dismissal of the alleged cause of action against the defendant Marian Bernstein, which is the subject of the present appeal. The plaintiff submitted to a voluntary dismissal of the action against the defendant Harry Bernstein. We therefore direct our attention to the scope and probative content of the evidence.
At about 12:30 a.m., on the morning of September 4, 1948, the plaintiff was walking westerly along the sidewalk on the northerly side of Ellison Street...
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