Hermes v. Staiano

• Decision Date: 11 September 1981
• Citation: 437 A.2d 925,181 N.J.Super. 424
• Parties: Francis X. HERMES and Constance Hermes, Plaintiffs, v. Louis STAIANO, Emma Staiano, his wife, and Staiano Wood Products, Inc., Defendants.
• Court: New Jersey Superior Court

Page 424

181 N.J.Super. 424

437 A.2d 925

Francis X. HERMES and Constance Hermes, Plaintiffs, v. Louis STAIANO, Emma Staiano, his wife, and Staiano Wood Products, Inc., Defendants.

Superior Court of New Jersey, Law Division Hunterdon County.

Decided Sept. 11, 1981.

Thomas R. Chesson, Morristown, for plaintiffs (Porzio, Bromberg & Newman, Morristown, attorneys).

William A. Shurts, Lebanon, for defendants (Felter, Cain & Shurts, Lebanon, attorneys).

LOUIS H. MILLER, J. S. C.

This matter comes before the court on defendants' application to dismiss the complaint at the conclusion of plaintiffs' case. The motion was originally made returnable on the day of trial, but because determination of the motion required a fuller exposition of the facts than was before the court at that time, and because determination of the matter required extension of existing law, the application was continued until the close of plaintiffs' proofs. The matter is now ripe for determination.

At this stage of the trial the following facts have been adduced. Sometime during 1969 defendant Staiano Wood Products, Inc., constructed a single-family residence on a lot owned by defendants Louis and Emma C. Staiano, located at 350 Clover Hill Drive, Califon, Hunterdon County. The home was built pursuant to a written agreement and contract of sale with Donald and Susan Brigham. On November 10, 1969 the lot and dwelling that had been constructed thereon was conveyed to the Brighams by the individual defendants.

On or about January 23, 1973 the present plaintiffs, making their first purchase of a residential property, took title to the subject property from the Brighams. Prior to the closing plaintiffs had apparently inspected the property four or five times after having entered into a contract for the purchase of the property in August 1972. The contract called for no inspections of any of the major systems of the home. Plaintiffs actually moved into the home on or about February 1, 1973.

Shortly after taking possession of the premises plaintiffs noticed minor problems relating to the septic system. For example, the kitchen sink would back up when the dishwasher was running, toilets overflowed when flushed while the washing machine or dishwasher were in operation, and on occasion the toilet itself would not function properly. These events occurred on a relatively infrequent basis and seemed to be alleviated when the use of water was curtailed by various conservation procedures.

Plaintiffs also encountered problems with "flooding" in the basement, which led them to cease using the basement area of the dwelling for purposes of storage of personal goods or belongings. This problem increased to the point where there were at one point several inches of water covering the basement floor, at which time plaintiffs contacted their neighbor, a Mr. Telesco, to find out whether the previous owners had had a similar problem. Telesco visited the property and suggested that if the sump pump were turned on, the water would undoubtedly drain from the basement. This required plugging it in, which was promptly done, and as a result of the procedure the basement did in fact drain.

By May 1976 plaintiffs noticed that substantial portions of the backyard became and remained flooded at most times, and the ground surface of the lawn became soggy, spongy and charged with water. On Father's Day in 1976 the septic system refused to take any discharge from any of the water-using devices of the home, as a result of which temporary measures had to be utilized until the septic tank could be dug up and cleared of accumulated effluent. Plaintiffs testified that thereafter more stringent water-conservation techniques were used by them; this alleviated the problem for short periods of time, after which it would become necessary to have the septic tank pumped out again by a professional tank cleaner.

Also, at about that time, plaintiffs first noticed that a horizontal crack had developed in the rear basement wall of the dwelling. The description of the crack at that time is somewhat vague, but it extended some 10 to 15 feet in length at approximately the middle of the wall and was noticeable.

During March 1978, after a period of severe weather, plaintiffs noticed that some 15 to 18 inches of water had accumulated in the basement and that the sump pump did not appear to be able to handle adequately the total amount of water which was being produced. The water was apparently being introduced into the basement, either through the cinder block walls or through a "French drain" that had been installed around the perimeter of the basement floor at the time of construction. Plaintiffs called the local fire company who pumped out the basement.

Upon inspection of the basement after this procedure plaintiffs determined that the crack in the rear wall of the foundation had increased to some 40 feet in length, with a maximum width of approximately one-sixteenth of an inch at the center. They immediately consulted a professional builder with regard to the crack, as a result of which consultation a complicated system of shoring and bracing was installed in the basement and which remains in place to the present day. This renders a substantial portion of the basement virtually unuseable. Plaintiffs allege that this cracked and buckling foundation threatens the structural integrity of the entire residence.

Plaintiffs' complaint was filed on February 16, 1979, sounding in (a) negligence, (b) breach of implied warranty of habitability, (c) strict liability in tort and (d) fraudulent concealment of material facts.

I

Defendant first contends that the statute of limitations contained in N.J.S.A. 2A:14-1 had run prior to the filing of the complaint, and that the action should have been commenced within six years after the accrual of the plaintiffs' cause of action. No specific date of accrual is urged by defendants, as a result of which it is difficult to determine when such accrual occurred.

To counter this approach, plaintiffs allege that their cause of action did not accrue until well after their purchase of the home in February 1973. They contend that they first had reason to know that there was any serious problem with the septic system prior to March 1976 and that they had no reason to be concerned with the condition of the rear foundation wall until either the events of June 1976 or March 1978 under the circumstances described above.

It has long been established in New Jersey that a cause of action grounded in tort accrues, not when the tortious act occurs but when the consequential injury or the damage occurs. See Diamond v. New Jersey Bell Tel. Co., 51 N.J. 594, 596, 242 A.2d 622 (1968); Rosenau v. New Brunswick, 51 N.J. 130, 138, 238 A.2d 169 (1968); Gilliam v. Admiral Corp., 111 N.J.Super. 370, 375, 268 A.2d 338 (Law Div. 1970); Burd v. New Jersey Tel. Co., 149 N.J.Super. 20, 30, 372 A.2d 1355 (App.Div.1977), aff'd 76 N.J. 284, 386 A.2d 1310 (1978). Plaintiffs urge that in the case at bar their discovery of the defects is well within six years of the bringing of the action. The parties stipulate that the ultimate statute of limitations contained in N.J.S.A. 2A:14-1.1 does not come into play in this matter, because the suit was initiated by plaintiffs within ten years of the delivery of the home to the original purchasers, the Brighams.

In the present state of the case there is no indication that an actionable notice of a defect arose prior to the events which were precipitated by the total stoppage of the septic system on Father's Day in 1976. There was testimony in the form of a transcript of a deposition of Louis Staiano, taken in May 1980, which indicated that sometime in 1970 the septic system had been modified by the introduction of a "shock pit" some 48 feet deep and filled with stone. There was, however, no specific testimony as to the reason why such system was installed. The evidence indicates at the time the septic tank was dug up in June 1976, inferences could be drawn that the tank had never been cleaned prior to that time, and subsequent to that date the system did seem to function satisfactorily for a period of time. Likewise, there is no indication that, before June 1976, there was any problem which had become evident concerning the construction of the dwelling complained of in the present litigation.

Under the circumstances it is evident from the proofs submitted that plaintiffs' cause of action did not accrue until well within six years prior to the filing of the complaint. In the event that defendants are able to establish in the defense of this matter that a cause of action based upon the circumstances of the Brighams' occupancy...