O'Connor v. Altus

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: LEONARD
• Citation: 123 N.J.Super. 379,303 A.2d 329
• Decision Date: 12 April 1973
• Parties: Kathleen Julie O'CONNOR, etc., et al., Plaintiffs-Respondents, v. Abraham ALTUS, et al., Defendants-Appellants.

Page 379

123 N.J.Super. 379 303 A.2d 329 Kathleen Julie O'CONNOR, etc., et al., Plaintiffs-Respondents,
v.
Abraham ALTUS, et al., Defendants-Appellants. Superior Court of New Jersey,
Appellate Division. Argued March 5, 1973.
Decided April 12, 1973.

Page 382

[303 A.2d 330] Herbert C. Klein, Passaic, for defendant-appellant Harrison Park, Inc. and defendant-cross respondent Abraham Altus (Kreiger & Klein, Passaic, attorneys).

Peter H. Wegener, Lakewood, for plaintiffs-respondents and cross-appellants (Bathgate, Wegener & Sacks, Lakewood, attorneys).

John E. Morris, Oakland, for defendant-respondent Romolo Bottelli, Jr.

Before Judges COLLESTER, LEONARD and HALPERN.

The opinion of the court was delivered by

LEONARD, J.A.D.

On September 13, 1967 infant plaintiff, then 15 years old, was injured when she came into contact with a glass sidelight adjoining a glass door in the lobby of a high-rise apartment building located at 377 Harrison Street, East Orange.

Defendant Harrison Park, Inc. (Harrison) was the owner of the building at the time it was built in 1955--1956. Thereafter, on October 1, 1958 Harrison sold it to Harrison Associates, a limited partnership (not a party to this litigation). Defendant Romolo Bottelli, Jr. was the architect who designed the building in 1955. Defendant David Shuldiner, Inc. installed all the glass therein, which was manufactured by Pittsburgh Plate Glass Company. Defendant

Page 383

Abraham Altus was the record owner of the property at the time of the accident.

Plaintiff, through her guardian Ad litem, and her father Roger O'Connor instituted suit against all of the above-named defendants. Altus did not answer and a default was taken against him. At the conclusion [303 A.2d 331] of plaintiff's opening Pittsburgh Glass was dismissed upon motion. Following a jury trial as to the remaining defendants, the jury returned a verdict of no cause of action in favor of Shuldiner and verdicts of $100,000 in favor of the infant plaintiff and $3000 for her father, both against Harrison and Bottelli.

After the trial the court heard and disposed of various defendants' motions for dismissal, made during the trial and reserved, as well as motions for a new trial and for judgments N.o.v. Bottelli's motion for judgment N.o.v. based upon his defense of the ten-year statute of limitation favoring architects and others, N.J.S.A. 2A:14--1.1, was granted. Altus' motion to vacate the default entered against him and to strike the service of process purportedly made upon him was also granted. Harrison's motions for judgment N.o.v., a new trial and indemnification from Bottelli were all denied.

Harrison appeals from the judgment entered pursuant to the jury verdict and from the denial of its motions. Plaintiff cross-appeals from the order entering judgment N.o.v. in favor of Bottelli and from the order vacating the default against Altus. No active appeal is taken from the judgments entered in favor of Pittsburgh Glass or Shuldiner.

Plaintiffs' principal allegation of negligence was that defendants negligently designed, constructed and maintained the glass sidelight. Their expert testified that the panels were constructed of plate glass, which shatters into large fragments, rather than tempered glass, which disintegrates into small particles. He further stated that there was a failure to place decals or other markings thereon. Thus, he was of the opinion that the doors and panels did not conform to the standard of providing safe passage to the users

Page 384

thereof, which standard was in existence at the time they were installed.

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, whether natural or artificial, which existed at the time the vendee took possession. Sarnicandro v. Lake Developers, Inc., 55 N.J.Super. 475, 479, 151 A.2d 48 (App.Div.1959); Restatement, Torts 2d, § 352 at 234 (1965). The rule applies equally to the situation where the vendor created the dangerous condition as well as the case of failure to repair, where he merely suffered the condition to exist. Sarnicandro, supra, at 479--480, 151 A.2d 48.

However, there are at least two recognized exceptions to the...