Gellenthin v. J. & D., Inc.

• Decision Date: 22 December 1961
• Docket Number: No. A--495,A--495
• Citation: 176 A.2d 515,71 N.J.Super. 226
• Parties: Paul GELLENTHIN, Plaintiff-Appellant, v. J. & D., INC., a corporation of New Jersey, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 226

71 N.J.Super. 226

176 A.2d 515

Paul GELLENTHIN, Plaintiff-Appellant, v. J. & D., INC., a corporation of New Jersey, Defendant-Respondent.

No. A--495.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 23, 1961.

Decided Dec. 22, 1961.

Lewis M. Holland, Jersey City, for appellant (Warren, Chasan & Leyner, Jersey City, attorneys).

Leon S. Wolk, Cliffside Park, for respondent (Basile, Delchop & Wolk, Cliffside Park, attorneys).

Before Judges GAULKIN, KILKENNY and HERBERT.

The opinion of the court was delivered by

HERBERT, J.S.C. (temporarily assigned).

This case has been tried twice. The first trial resulted in a dismissal at the end of the evidence for the plaintiff. On appeal there was a reversal, Gellenthin v. J. & D., Inc., 62 N.J.Super. 224, 162 A.2d 582 (App.Div.1960), and a new trial followed. The outcome of the second trial was a jury verdict in favor of the defendant and the plaintiff now appeals again.

The plaintiff's claim arose out of a fall on an icy sidewalk in Cliffside Park, Bergen County. Early in the evening of December 5, 1957 he was walking east down the steep slope of Oakdene Avenue. He had just passed the defendant's property and had reached a part of the public sidewalk in front of the adjacent premises of another owner when the accident happened. The theory of liability was that the ice on which the plaintiff slipped was caused by the freezing of water from melting snow which had run down during the day from the defendant's property, particularly from leaders or downspouts constructed to discharge onto the defendant's paved driveway which was graded downward toward the sidewalk the plaintiff was using.

A brief discussion of the legal principles applied at the first trial and on the first appeal will be a good introduction to the questions now before us. When the plaintiff's case was dismissed on motion, among the authorities relied upon by the trial judge was Pierri v. Faure, 14 N.J.Super. 172, at page 175, 81 A.2d 507, at page 509 (App.Div.1951), in which the following statement is found:

'The general rule is that an abutting owner who collects the natural drainage of water from the roof of his building and discharges it upon the sidewalk through a pipe or other orifice is not liable to a pedestrian who, after this water had frozen upon the sidewalk, slips upon the ice so formed. Zwickl v. Broadway Theatre Co., 103 N.J.L. 604, 137 A. 570 (E. & A. 1927); Jessup v. Bamford Bros. Co., 66 N.J.L. 641, 51 A. 147, 58 L.R.A. 329 (E. & A. 1901). The exceptions to this general rule are set forth in Saco v. Hall, 1 N.J. 377, 63 A.2d 887 (1949).'

Then, in deciding the earlier appeal for the plaintiff, this Division called attention to the change in our law on surface waters made by Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4, 59 A.L.R.2d 413 (1956), saying at pages 231 and 232 of 62 N.J.Super., at page 585 of 162 A.2d:

'In Armstrong, supra, the court determined that, in resolving disputes between owners of private property, allowance should be made for 'differences in factual situations' in determining the liability of the landowner who alters the flow of surface waters with resulting material harm to other landowners (20 N.J., at page 326, 120 A.2d at page 8). It rejected the 'common enemy' rule therefore controlling, declared its 'adherence' to the "reasonable use' rule laying down the test that each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.' 20 N.J. at page 327, 120 A.2d at page 8. In this connection the court declared (20 N.J. at page 330, 120 A.2d at page 10):

'The rule of reasonableness has the particular virtue of flexibility. The issue of reasonableness of unreasonableness becomes a question of fact to be determined in each case upon a consideration of all the relevant circumstances, including such factors as the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter.'

The Armstrong case doctrine has been recognized in subsequent decisions. Hopler v. Morris Hills Regional District, 45 N.J.Super. 409, 133 A.2d 336 (App.Div.1957); Yonadi v. Homestead Country Homes, Inc., 42 N.J.Super. 521, 127 A.2d 198 (App.Div.1956).

'While, as we have above noted, Armstrong, supra (20 N.J. 320, 120 A.2d 4), involved a dispute between owners of private property and not, as in the instant case, an alleged invasion of a public easement, when we recognize that the 'common enemy' rule foundation of Jessup is no longer the law, the significance of Armstrong in the instant case is emphasized. We therefore hold that the doctrine enunciated in Armstrong supra, decided by the Supreme Court five years after the decision in Pierri v. Faure, supra, 14 N.J.Super. 172, 81 A.2d 507, requires the application of the 'reasonable use' rule in the case at bar. The trial court erred in not applying it and its judgment, dismissing plaintiff's case, is reversed.'

The next step was a new trial, at which the plaintiff submitted ten requests to charge, including one reading as follows:

'5. The issue is whether the defendant made a reasonable use of its property in the circumstances. Gellenthin v. J. & D. Inc., 62 N.J.Super. 224 (162 A.2d 582, 585) (App.Div.1960). If the defendant used its property in an unreasonable manner, causing an obstruction or impediment on the public sidewalk, then it was guilty of creating or maintaining a nuisance.'

The substance of that request, though not the wording, was included in the charge given by the tral judge; and the plaintiff does not argue to the contrary, nor does he otherwise argue on this appeal that there was any failure to charge the law as stated in our opinion on his first appeal.

The plaintiff does contend, however, that the trial judge erred when he failed to charge four of the other requests submitted. Three of these can be discussed collectively, and we quote them:

'4. Any obstruction unnecessarily incommoding or impeding the lawful use of a street by the public is a nuisance for which, upon the happening of an accident as a result thereof, the creator of the nuisance must respond in damages. Christine v. Mutual Grocery Co., 119 N.J.L. 149, 152 (194 A. 625) (E. & A. 1937); Saco v. Hall, supra.

6. If the defendant knew, or should have known that the manner in which it constructed and maintained its drainage system and leader would, and did, cause an obstruction in the public sidewalk, it was bound to take all reasonable steps calculated to avoid that result.

7. If the defendant so constructed or maintained a structure upon its premises as to cause an artificial discharge of water upon the sidewalk, which, by its freezing, made the use of the sidewalk dangerous, it is liable to the plaintiff, if, while he was rightfully on the sidewalk and exercising due care, he was injured as a result of the dangerous condition. 25 Am.Jur., Highways, § 523, p. 805.'

The only 'objection' or 'impediment' relied on by the plaintiff was the ice on the sidewalk.

Requests 4, 6 and 7 reject, or at least omit, the principle of 'reasonable use' which was stated for this case in our earlier opinion (62 N.J.Super. 224, 162 A.2d 582). They are inconsistent with that opinion and, incidentally, are inconsistent with the plaintiff's own request number 5, quoted above. By urging that these three requests should have been charged, the plaintiff is making an attack upon the rule we have already stated for this case and is in reality seeking a change in that rule which, if put in force, would make an owner liable, without reference to the principle of reasonable use of his land, for surface water which flows therefrom and freezes on a public sidewalk. For many years it has been the rule in New Jersey that the basic principles governing the responsibility of an owner for the runoff of surface water from his land shall be the same whether the flowing...