Gellenthin v. J. & D., Inc.

• Decision Date: 22 October 1962
• Docket Number: No. A--12,A--12
• Citation: 38 N.J. 341,184 A.2d 857
• Parties: Paul GELLENTHIN, Plaintiff-Appellant, v. J. & D., INC., a corporation of New Jersey, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 341

38 N.J. 341

184 A.2d 857

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

No. A--12.

Supreme Court of New Jersey.

Argued Sept. 25, 1962.

Decided Oct. 22, 1962.

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

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

The opinion of the court was delivered by

PROCTOR, J.

This is an action for personal injuries sustained by plaintiff when he slipped and fell on an icy sidewalk. The case has been tried twice. The first trial resulted in a dismissal at the end of the plaintiff's case. On appeal there was a reversal, 62 N.J.Super. 224, 162 A.2d 582 (App.Div.1960), and a new trial followed. At this trial there was a jury verdict for the defendant. The judgment entered thereon was affirmed by the Appellate Division, 71 N.J.Super. 226, 176 A.2d 515 (1961). We granted the plaintiff's petition for certification. 37 N.J. 53, 179 A.2d 92 (1962).

On the day of the accident, the defendant owned and controlled a large brick building on the northeast corner of the intersection of Anderson and Oakdene Avenues in Cliffside park. This building, constructed by the defendant in 1956, fronted on Anderson Avenue and extended easterly along the north side of Oakdene Avenue, which in that area is a steep hill, sloping sharply downward from the intersection. Along Oakdene Avenue there was a public sidewalk which immediately bordered the wall of the building and thence ran past the defendant's paved priveway to the rear of it and continued in front of adjacent premises owned by Ranieri and Sciola.

The building was so constructed that the roof was pitched toward the rear, and any water from rain or melted snow was conducted off the roof by two leaders or drain pipes running down the rear wall. One of these leaders, placed on the corner of the building about 3 1/2 feet in from the sidewalk, discharged the water in mid-air at a point several inches above the defendant's paved driveway. This driveway covered the rear of the property and part of it sloped toward and joined the sidewalk.

On December 5, 1957, at about 7:00 P.M., the plaintiff, on his way home from work, got off a bus on Anderson Avenue and walked down the Oakdene Avenue sidewalk alongside of the defendant's building. The night was dark and although the temperature had warmed during the day, it was now below freezing. The sidewalk abutting the defendant's property had not been shoveled since the heavy snowfall of the night before, but the snow had been sufficiently trampled during the day to enable the plaintiff to proceed. At the boundary line between the defendant's property and the Ranieri-Sciola property, the condition of the sidewalk changed, for the snow had been removed from the sidewalk in front of the latter property. The plaintiff testified that when he walked onto the Ranieri-Sciola sidewalk 'a little more than a foot' he slipped and fell on ice on the sidewalk.

The plaintiff introduced proof that ice resulted from water which had been discharged by the defendant's leader onto the driveway and thence had flowed down the sidewalk, forming a 'ribbon of ice' from the leader to the point on the sidewalk where he fell. There was further testimony that water had run regularly from the defendant's leader down onto the sidewalk since the time the building and the leader were first constructed, and in the winter it would freeze. The defendant's only witness, its president, admitted that at the time of the accident a portion of the water from the leader would 'go on the sidewalk' and run down by the Ranieri-Sciola property. However, the defendant brought out on cross-examination of the plaintiff and his witnesses that there was snow piled near the curb of the Ranieri-Sciola sidewalk and that there was snow on the defendant's sidewalk and driveway. The evidence thus presented the issue whether the ice upon which plaintiff slipped had been formed from water coming from the defendant's leader, or from other sources for which the defendant would not be responsible.

The trial judge instructed the jury:

'Now, in connection with the water situation, the law is that a possessor of land or property in this case a building and land, is legally privileged to make a reasonable use of his land, even though the flow of surface waters are altered thereby and causes some harm to others; but such possessor incurs liability when his harmful interference with the flow of surface waters is unreasonable.

Now, the issue of reasonableness or unreasonableness in determining a property owner's use of his land, and affecting the flow of surface waters becomes a question of fact to be determined by the jury upon a consideration of all the relevant circumstances, including such factors, as the amount of harm caused, the foreseeability of harm, which results, the purpose or motive with which the possessor acted, and all other relevant matters. In other words, the topography, all the conditions relating to the property in question. Then, also, in considering this question of reasonableness of use of the land which affects the flow of surface waters, is whether the use of the land outweighs the amount of harm which results from his alteration of the flow of surface waters.'

In giving the above instruction, the trial court followed the determination of the Appellate Division in the first appeal of this case (62 N.J.Super., at p. 232, 162 A.2d 582), that the opinion of this court in Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4, 59 A.L.R.2d 413 (1956), required the application of the 'reasonable use' rule to this case. The language of the instruction is taken substantially from the Armstrong opinion, 20 N.J. at p. 330, 120 A.2d 4. However, the trial court refused to charge the following instructions requested by the plaintiff '3. The main or primary purpose for which a sidewalk exists is to afford the traveling public a safe place on which to walk, and the ownership of the sidewalk, for all substantial purposes, is in the public.

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.

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.'

The Appellate Division, in affirming the judgment, held that the plaintiff's requested instructions Nos. 4, 6 and 7 were defective in that they omitted the principle of 'reasonable use,' and 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 water causes damage to the property of others or freezes on a public sidewalk and causes a pedestrian to fall,' citing Jessup v. Bamford Bros. Silk Mfg. Co., 66 N.J.L. 641, 51 A. 147, 58 L.R.A. 329 (E. & A. 1901). As to plaintiff's request No. 3, the court held that the trial judge's failure to charge, if error at all, was harmless because '(t)here was no issue in the case about plaintiff's fall having occurred on a public sidewalk where he had a right to be.'

On plaintiff's appeal to this court he contends that the trial court's failure to charge the above requests constituted reversible error.

Prior to the decision in Armstrong v. Francis Corp., supra, our courts held that surface water is a 'common enemy' which every landowner may fight and get rid of as best he may, and that 'neither its retention, diversion, repulsion, or altered transmission is an actionable injury, even though damage ensues.' Bowlsby v. Speer, 31 N.J.L. 351, 353 (Sup.Ct.1865); Town of Union ads. Durkes, 38 N.J.L. 21 (Sup.Ct.1875). Both of the above cases involved the diversion of the natural flow of surface waters which was incidental to the development of the defendant's property, although the water so diverted caused damage to the property of an adjoining owner. In Bowlsby, the construction of a stable blocked the natural path of rain water down a hillside, and diverted it so that it ran onto the adjacent property of the plaintiff. In Town of Union, the ordinary construction of municipal streets changed the natural grade of the land so as to divert the path of surface waters onto the plaintiff's property.

An exception to the common enemy rule was that a landowner had no right to alter, by the construction of artificial conduits, the natural discharge of surface water from his land by conducting it in new channels in unusual quantities onto his neighbor's land, thereby causing damage. West Orange v. Field, 37 N.J.Eq. 600 (E. & A.1883).

In the case of Jessup v. Bamford Bros. Silk Mfg. Co., supra, a significant change in direction was made in the development of surface water law in New Jersey. It was the first case to apply surface water law, which had evolved from disputes between adjacent landowners, to a situation where the diversion of surface water resulted in a dangerous obstruction on a public sidewalk. Moreover, the decision was the first to hold that a landowner was free of liability even where the diversion was accomplished through an artificial drainage system designed to control the flow of surface water. In that case, the owner of a lot sloping toward the...