Davis v. Pecorino

• Decision Date: 15 December 1975
• Citation: 350 A.2d 51,69 N.J. 1
• Parties: Rosalie DAVIS and Mack Davis, Plaintiffs-Appellants, v. Edward PECORINO, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 1

69 N.J. 1

350 A.2d 51

Rosalie DAVIS and Mack Davis, Plaintiffs-Appellants, v. Edward PECORINO, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Oct. 6, 1975.

Decided Dec. 15, 1975.

Michael H. Hochman, Jersey City, for plaintiffs-appellants (Miller, Hochman, Meyerson & Miller, Jersey City, attorneys).

John P. McGee, Millburn, for defendant-respondent. (Charles V. Webb, Jr., Millburn, on the brief, Webb, McDermott & McGee, Milliburn, attorneys).

The opinion of the Court was delivered by

SCHREIBER, J.

The plaintiff Rosalie Davis seeks damages for injuries she received in a fall on a public sidewalk in front of the defendant Edward Pecorino's premises on December 24, 1970. She alleged in her complaint that the accident was caused by the defendant's negligent and careless maintenance of the walk, a charge which he denied. The matter came on for trial and, upon defendant's motion at the close of the plaintiff's case, a judgment of involuntary dismissal was entered by the trial court pursuant to R. 4:37--2(b). The Appellate Division affirmed. We granted certification. 68 N.J. 155, 343 A.2d 443 (1975).

To test the propriety of a judgment of involuntary dismissal, the evidence adduced from the from the record must be viewed in a light most favorable to the plaintiff. Bexiga v. Havir Mfg. Corp., 60 N.J. 402, 290 A.2d 281 (1972); Klockner v. Green, 54 N.J. 230, 254 A.2d 782 (1969). We have analyzed the record in that manner.

The plaintiff Rosalie Davis worked from 11:00 p.m. on December 23, 1970 to about 6:00 a.m. on the next day. After work she walked to her home on Claremont Avenue in Jersey City. It had snowed on December 22, and some additional snow had fallen on December 23. Many people had cleared the snow from their sidewalks. She arrived home at approximately 6:30 a.m.

About two hours later she decided to walk to a candy store located a few blocks away to buy a newspaper. En route she passed the defendant's gasoline service station, located at the corner of Claremont Avenue and West Side Avenue. An entrance led from the street across the sidewalk into the station. At that point, part of the sidewalk was sloped to the street level. On the day of the accident, defendant had not cleared the snow off the driving surfaces of the station and automobiles had driven into and out of the gasoline station across the snow covered walk. As a result of this traffic, as evidenced by tire marks which were clearly visible in the snow, the snow in that area of the sidewalk had been packed down and hardened.

On her return from the candy store, plaintiff fell on the sloped part of the sidewalk adjacent to the defendant's service station. This accident, we may infer, was attributable to the packed and hardened snow which had been permitted to remain on the sidewalk across defendant's driveway. She suffered a comminuted fracture at the distal end of the right ankle.

The trial court, relying on Den Braven v. Public Service Elec. & Gas Co., 115 N.J.L. 543, 181 A. 46 (E. & A. 1935), entered judgment for the defendant. The Appellate Division affirmed. It concluded that the plaintiff's evidence 'did not demonstrate any activity on the part of the defendant which altered the condition of the snow and ice.' It was 'constrained to follow the well-established rule of law iterated in Saco v. Hall, 1 N.J. 377, 63 A.2d 887 (1949) and Foley v. Ulrich, 50 N.J. 426, 236 A.2d 137 (1967).'

We believe that the judgment in this case must be reversed on the basis of established principles of law long recognized in this State. It has been and is the existing law in New Jersey that an abutting landowner has no duty to remove the Natural accumulation of ice and snow from the public sidewalk adjoining his premises. Foley v. Ulrich, supra; Brown v. Kelly, 42 N.J. 362, 200 A.2d 781 (1964); Sewall v. Fox, 98 N.J.L. 819, 121 A. 669 (E. & A. 1923); Saco v. Hall, supra, 1 N.J. at 381, 63 A.2d 887. Nor does he have an obligation to maintain that sidewalk, for he is not responsible for defects caused by the elements or wear and tear incident to public use. Moskowitz v. Herman, 16 N.J. 223, 108 A.2d 426 (1954).

However, there are certain well recognized exceptions to these rules of non-responsibility. An abutting landowner is responsible for dangerous conditions created as a result of his special use of the public sidewalk for his particular benefit. A sidewalk is intended primarily for pedestrians, and an abutting owner who invades the public easement exclusively for his own benefit is responsible for the resultant hazardous condition. His special use is subordinate to the primary function of the sidewalk, the public's right of travel on it.

This special use concept was enunciated in Durant v. Palmer, 29 N.J.L. 544 (E. & A. 1862). The defendant had constructed a hole 4 feet wide by 7 1/2 feet deep in front of his shop to protect the building from dampness and to provide steps to the basement. The plaintiff pedestrian fell in the opening and was injured. Liability was predicated and sustained on the duty imposed on the owner arising from his special use of the sidewalk. The court wrote:

* * * The street, and every part of it, by force of the common law, is so far dedicated to the public that any act or obstruction that unnecessarily incommodes or impedes its lawful use by the public is a nuisance. (at 547).

In Rupp. v. Burgess, 70 N.J.L. 7, 56 A. 166 (Sup.Ct. 1903), Chief Justice Gummere reversed a judgment which sustained a demurrer to a complaint in which the plaintiff pedestrian alleged that he fell because a drain pipe beneath the public walk fell into disrepair causing the walk to disintegrate. The Chief Justice wrote:

The rule is settled that when an abutting owner, for his private ends, places or maintains in a public highway anything which, if neglected, will render the way unsafe for travel, he is bound to exercise due care to prevent its becoming dangerous, and that his failure to do so will render him laible for injuries received by a person passing along the highway, resulting from that neglect. (at 9--10, 56 A. at 166--167).

In Krug v. Wanner, 28 N.J. 174, 145 A.2d 612 (1958), the plaintiff pedestrian caught her foot on the elevated part of a cellar door located in the public sidewalk. On appeal, judgments in favor of the defendants tenant and owner were reversed. Justice Jabobs noted that recovery was permitted where 'the condition of the sidewalk was actually the result of the abutting owner or occupier's own wrongful conduct or constituted, in broad legal contemplation, a nuisance which the abutting owner or occupier had either originally created or had thereafter participated in maintaining.' at 180, 145 A.2d at 615.

In Prange v. McLaughlin, 115 N.J.L. 116, 178 A. 782 (E. & A. 1935), the plaintiff was injured as a result of stepping into a hole in the sidewalk in front of the defendant's apartment house. The evidence disclosed that the particular defective condition resulted from the driving of coal trucks across the sidewalk to service the apartment house. The coal trucks unloaded bags of coal into a coal shute which was in the front of the house. The sidewalk deteriorated as a result of this operation. The Court of Errors & Appeals held that the repeated use of the sidewalk in that fashion 'with the knowledge and for the benefit of the owner' amounted to participation by him in the creation of a nuisance, and imposed upon him the duty of seeing to it that a condition dangerous to pedestrians in the proper use of the sidewalk was not continued. To the same effect: Wirth v. Peters, 36 N.J.Super. 172, 114 A.2d 870 (App.Div.1955).

In Saco v. Hall, supra, this Court held that a plaintiff was entitled to recover for injuries sustained as a result of a fall on an icy sidewalk in front of the defendant's abutting building. Water had flowed from a broken leader on the defendant's building across the public sidewalk where it froze and created the icy hazardous condition. The Court recognized a landowner's responsibility where he creates a perilous sidewalk condition because of his particular use of the abutting property.

There seems to be, and we hold there is, no valid distinction between a situation where an abutting owner invades and makes use of the public easement for his own exclusive benefit by erecting or installing a drain, grating, coal hole or other device in or under the sidewalk, in which case he is under continuing duty to keep this part of his property in repair so that it will not deteriorate into or create a danger to the public using the sidewalk, and the situation where there is a similar invasion of the public easement for the owner's benefit by the erection and use of devices located over and above the sidewalk which also through neglect can deteriorate to the point where there is created a dangerous condition in the public easement or which becomes the proximate cause creating or producing a dangerous obstruction, impediment or condition in the free and safe use of the sidewalk by the general public. (1 N.J. at 383, 63 A.2d at 890).

A number of jurisdictions have held that an abutting landowner or occupier is responsible for a hazardous condition which has been created by use of the sidewalk as a driveway for its commercial purposes. In Franzen v. Dimock Gould & Co., 251 Iowa 742, 101 N.W.2d 4 (1960), the defendant owned a parking lot adjacent to its lumber business. Automobiles entered the lot and deposited snow and ice on the public sidewalk. The plaintiff fell on the icy driveway. A verdict against the abutting landowner was upheld. The court found that if a private residential driveway had been involved, a verdict for the plaintiff would not have been supported. In District of Columbia v. Texaco, Inc., 324 A.2d 690 (D.C.App.1974), a pedestrian had obtained a judgment against the District of Columbia for injuries sustained when she tripped on a crack in that portion of the sidewalk used...