Earthelm Ess v. Bergamo

• Decision Date: 31 January 1927
• Docket Number: No. 123.,123.
• Citation: 135 A. 794
• Parties: EARTHELM ESS v. BERGAMO et al.
• Court: New Jersey Supreme Court

135 A. 794

EARTHELM ESS

v. BERGAMO et al.

No. 123.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1927.

Appeal from Circuit Court, Bergen County.

Action by Catherine Barthelmess against Liberate Bergamo and others. From a judgment for plaintiff, defendants appeal. Reversed.

E. J. Luce and W. A. Kipp, both of Rutherford, for appellants.

Ely & Ely, of Rutherford, for appellee.

MINTURN, J. While in the act of manipulating a clothes line upon the roof of an annex to the main building, the second floor of which she occupied as a tenant, the plaintiff presumably from the superimposed weight of the clothes upon the line, or for some other reason not distinctly in evidence, was drawn or fell from the roof and received the resulting injuries for which the jury compensated her by a verdict in her favor. From the judgment entered thereon this appeal was taken by the defendant, upon the fundamental contention that no liability upon the part of the defendant could be predicated, since the relation of landlord and tenant, which concededly existed, imposed no implied duty of furnishing to the plaintiff any rail or other protecting structure as a safeguard against obvious possible dangers in the use of the shed.

The relation of landlord and tenant, at common law, in the absence of a continuing nuisance or of an express contract, imposed the duty of repairing the demised premises upon the tenant. Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380; Heintze v. Bentley, 34 N. J. Eq. 562; 16 R. C. L. 585, and cases.

The sole departure from this fundamental rule, except where the locus in quo was in essence a nuisance, has been necessitated by the construction of tenement or apartment houses, intended for the habitation of many tenants, in which situation differing entirely from any comprehended by the rural conditions of habitation at the common law, the courts have found it necessary to recognize the novel housing requisites incident to modern life, by treating hallways and stairs as common ways or appurtenances, kept and maintained by the landlord, for the purpose of affording reasonable entrances and exists to and from the demised premises; and for a failure to reasonable maintain which, in the event of damage to occupants and others lawfully using the premises, the landlord has by the general trend of authority been made liable. Gillvon v. Reilly. 50 N. J. Law, 26, 11 A. 481; Siggins v. McGill, 72 N. J. Law, 263, 62 A. 411, 3 L. R. A. (N. S.) 316, 111 Am. St. Rep. 666.

To this recognized exception, there...