Gellenthin v. J. & D., Inc.

• Decision Date: 01 July 1960
• Docket Number: No. A--21,A--21
• Citation: 162 A.2d 582,62 N.J.Super. 224
• Parties: Paul GELLENTHIN, Plaintiff-Appellant, v. J. & D., INC., a corporation of New Jersey, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 224

62 N.J.Super. 224

162 A.2d 582

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

No. A--21.

Superior Court of New Jersey Appellate Division.

Argued Dec. 15, 1959.

Decided July 1, 1960.

Lewis M. Holland, Jersey City, argued the cause for plaintiff-appellant (Warren, Chasan & Leyner, Jersey City, attorneys; Joel A. Leyner and Lewis M. Holland, Jersey City, on the brief).

Joseph N. Marotta, Jr., Fort Lee, argued the cause for defendant-respondent (Basile & Delchop, Cliffside Park, attorneys; Joseph N. Marotta, Jr., Fort Lee, of counsel and on the brief).

Before Judges PRICE, GAULKIN and FOLEY.

The opinion of the court was delivered by

PRICE, S.J.A.D.

Plaintiff appeals from a judgment in the Superior Court, Law Division, based on the court's action in granting defendant's motion for dismissal at the end of plaintiff's case. R.R. 4:42--2(b).

Plaintiff was injured when he slipped and fell on ice on a public sidewalk. He alleged that his fall and resultant injuries were caused by defendant's negligence. The accident occurred on Oakdene Avenue in Cliffside Park on the evening of December 5, 1957. In the area of the accident Oakdene Avenue is a steep hill, sloping downward from its intersection with Anderson Avenue to its intersection with Gorge Road. Plaintiff resided on Gorge Road near the latter intersection.

On the day of the accident the property at the northeasterly corner of the intersection of Oakdene Avenue and Anderson Avenue was owned and controlled by respondent and on it was erected a sizable brick building fronting on Anderson Avenue. Leaders, located on the rear wall of the building, were designed to carry rain and melted snow from the roof. Plaintiff produced proof that one of those leaders was placed near the rear corner of the building bordering on Oakdene Avenue and that the leader terminated at a point near, but above, the paved rear of respondent's property and was so located that any water discharged from it of necessity flowed across the public sidewalk in front of the adjacent property, described in the record as the Ranieri-Sciola property, which bordered on Oakdene Avenue and was downhill from respondent's property. The leader was located entirely within the boundary lines of respondent's property; no portion of it extended onto the public sidewalk, but the paving covering the rear of defendant's property sloped toward and joined said sidewalk.

On the morning of the day of the accident plaintiff boarded a bus on Anderson Avenue to go to his place of employment. In order to reach the bus stop it was necessary for him to walk from his home up the hill past the Ranieri-Sciola and the respondent's properties. He testified that he passed the area at about 7:00 A.M., and found that although snow had been cleared from the sidewalk in front of the former property, so that a path for walking was available, the sidewalk bordering respondent's land was so covered with snow as to be impassable. He stated that from that point he was obliged to walk in the street in order to reach the bus stop on Anderson Avenue. Plaintiff did not visit the area again until about 7:30 P.M. that evening on his return from work. Although during the day the snow had not been removed from the sidewalk along the Oakdene Avenue side of respondent's property, it had been trampled sufficiently to enable plaintiff to use the sidewalk instead of the road area as he walked down the hill. However, at the boundary line between respondent's property and the Ranieri-Sciola property the condition of the sidewalk changed, as the snow had been removed in front of the latter property. Plaintiff had walked only '2 or 3 feet' on the cleared portion of the sidewalk in front of the Ranieri-Sciola property when he slipped on ice and suffered such a severe fall as to render him unconscious. Plaintiff presented proof that the ice on which he had slipped had formed on the sidewalk as a result of water flowing directly from the leader above described. The testimony reveals that on other occasions prior to the day of plaintiff's fall the owners of the Ranieri-Sciola property had complained to respondent about the flow of water from the leader downhill and onto the sidewalk in front of their property.

Essentially the foregoing constituted the evidence when motions for dismissal were made by defendants J. & D., Inc. and the owners of the Ranieri-Sciola property. The motions were granted as to both defendants. Plaintiff has not appealed from the trial court's determination that there was 'no evidence of negligence on the part of the defendants Ranieri and Sciola.' As to the respondent, the trial court stated that: 'Under the New Jersey cases, the Jessup case (Jessup v. Bamford Bros., Co., 66 N.J.L. 641, 51 A. 147, 58 L.R.A. 329 (E. & A. 1901)), the Saco case (Saco v. Hall, 1 N.J. 377, 63 A.2d 887 (1949)) and the Pierri v. Faure case (14 N.J.Super. 172, 81 A.2d 507 (App.Div.1951)) and the rule sustained there * * * the plaintiff has no right of action on such facts, no issue for the Jury.' The court held that as the leader in question did not physically intrude on the public sidewalk respondent was without liability.

In Saco, supra, it appeared that appellant had sustained personal injuries when she slipped and fell upon an icy sidewalk in front of a factory building, allegedly in the possession and control of defendant. The sidewalk occupied the entire area from the curb to the building. Gutters on the roof of the building allegedly overhung the sidewalk. Leaders, located on the side of the building, were designed to carry rain and melted snow from the roof gutters to iron pipes and then to ' a sewer or other depository.' (1 N.J. 377, 63 A.2d 888.) Evidence presented on behalf of plaintiff showed that defendant had permitted one of the leaders to become so deteriorated that water escaped through a slit in it and poured onto the sidewalk where it froze and created the icy condition which caused plaintiff's fall. The trial court, in granting a motion for a nonsuit (1 N.J., at page 380, 63 A.2d at page 888), 'held that an owner is only responsible when, for the protection of the public and not for his own exclusive benefit, he tries to carry water either across or under the sidewalk' and that as the proofs failed to show any such attempt by defendant he was entitled to a dismissal.

The Supreme Court disagreed and in ordering a new trial said (1 N.J., at page 383, 63 A.2d at page 890):

'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. In both instances where there is a breach of this duty the owner is liable to respond in damages.'

The court then added the following Dictum, upon which defendant relies heavily 'In all other cases or situations where the owner of the property has constructed a system of drains, gutters or leaders to drain excess water off his structures or property the rule of Jessup v. Bamford Bros. * * * shall apply. It likewise applies in all cases where the owner has not erected any such system.' 1 N.J., at pages 383--384, 63 A.2d at page 890.

The rule in Jessup was expressed by the court in Saco as follows (1 N.J., at page 381, 63 A.2d at page 889):

'The rule of the Jessup case, wherein the water seeped and ran through the weepholes of a retaining wall and froze on the sidewalk, is that the owner of land has the right to occupy and improve it, either by changing the surface thereof or erecting buildings or structures thereon, even though the mode of occupation or the improvement by construction thereon will cause the rain or snow falling on its surface or flowing on it from adjacent property, to be diverted and accumulate in larger quantities on the land adjacent thereto. This right is unfettered and cannot be interfered with or restrained by any consideration of injury to others which may be occasioned by the flow of mere surface water, in consequence of the lawful appropriation of land by its owner to a particular use or mode of enjoyment. See also Bowlsby v. Speer, 31 N.J.L. 351 (Sup.Ct.1865); Durkes v....