Krieger v. Ownership Corporation

• Decision Date: 11 August 1959
• Docket Number: No. 12843.,12843.
• Citation: 270 F.2d 265
• Parties: Mollie KRIEGER, Appellant, v. OWNERSHIP CORPORATION, a Corporation of New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

270 F.2d 265 (1959)

Mollie KRIEGER, Appellant, v. OWNERSHIP CORPORATION, a Corporation of New Jersey.

No. 12843.

United States Court of Appeals Third Circuit.

Argued April 6, 1959.

Decided August 11, 1959.

Rehearing Denied September 29, 1959.

COPYRIGHT MATERIAL OMITTED

Bernard Chazen, Hoboken, N. J. (Max & Koenig, Jersey City, N. J., on the brief), for appellant.

Vincent D. Enright, Jr., Newark, N. J. (McKeown, Harth & Enright, Newark, N. J., Maurice J. McKeown, Newark, N. J., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

KALODNER, Circuit Judge.

Was there a genuine issue as to a material fact, which under well-settled principles, precluded the entry of a summary judgment?

In New Jersey, is the invitee of a tenant, injured by reason of a landlord's negligent performance of his express agreement to make repairs to the leased premises, barred from making recovery from the landlord because the invitee is "an utter stranger to the landlord"?

These two issues are presented by this appeal from the Order¹ of the District Court for the District of New Jersey granting summary judgment in favor of defendant, Ownership Corp., Inc., in an action for damages brought by plaintiff, Mollie Krieger.

Federal jurisdiction is based on diversity of citizenship and the requisite jurisdictional amount.²

The facts may be summarized as follows:

Defendant on May 25, 1957 was the owner of a one-family residence in Mount Arlington, New Jersey which it had leased to one Mrs. Ida C. Fabricant on May 6, 1957 for a term expiring October 15, 1957. On the evening of May 25, 1957 plaintiff paid a social visit to Mrs. Fabricant at the latter's invitation. During the course of her visit plaintiff fell and was injured in the course of making her exit from the residence. She filed suit against defendant alleging in the first Count of her Complaint that at the time of the accident defendant was in control of the operation and maintenance of the premises; the doorway, stairways, steps and landings used in making her exit were improperly constructed and negligently maintained, and insufficiently and negligently illuminated so as to create a hazard and "hidden trap." In the second Count of her Complaint plaintiff alleged defendant had created and maintained a nuisance, which resulted in her injury.

Defendant filed an answer denying plaintiff's allegations in her complaint.

Subsequently, on September 2, 1958, a pre-trial conference was had before the District Court at which the parties presented and developed their contentions. A "Transcript of Pretrial Conference" was filed on September 5, 1958 together with an "Order Adopting Foregoing Transcript of Pretrial Conference as a Pretrial Order".

The Transcript read in part as follows:

"Plaintiff was concededly an invited guest of the tenant occupying the entire premises, but the complaint charges that the defendant, concededly the owner of the premises, was in control thereof.

"Plaintiff charges that a portion of the premises, to wit, an exit door and stairway, were so improperly constructed as to constitute a hazard and hidden trap, and that the hazard presented by the condition was enhanced by the improper location of an improper illuminating device, which the landlord and tenant had collaborated in furnishing and installing.

"Plaintiff charges that, more specifically, the landlord of the premises had agreed with the tenant to install a lighting fixture at a proper location to illuminate the place or exit of the premises.

"The tenant, under the terms of this agreement, agreed to and did furnish the fixture; but the plaintiff claims that the landlord placed, or caused it to be placed, at an improper location, and that the fixture and bulb were improper and inadequate.

* * * * * *

"The defendant admits ownership of the premises in question, admits that it was leased to the tenant, who was the invitor of the plaintiff, but it denies the retention of any control over the locus in quo, denies the existence of any trap therein, denies impropriety of construction, and also denies negligence in connection with the premises.

"It further pleads contributory negligence, assumption of risk, and negligence on the part of third parties beyond the control of the defendant, also alleging that plaintiff\'s status on the premises in question obligated the defendant only to refrain from the commission of willful or wanton harm."

The record establishes that the statements quoted were by way of a summarization by the District Court of the parties' contentions and did not represent any stipulation on their part as to the "facts" detailed.

That that is so is made evident by the stenographic transcript of the subsequent argument on defendant's motion for summary judgment. It discloses that at the outset of that argument the District Court again recounted in summary what was said in the pretrial conference Transcript and counsel for defendant immediately called to its attention that what was said in that Transcript merely represented "* * * plaintiff's contentions, distinguished from the stipulations as to other matters not related to liability at the pretrial conference", and the District Court indicated its agreement. In particular, defendant's counsel stated "* * * there has been no affidavit supplied by the plaintiff to substantiate her position that this agreement to place the light fixture at a proper location with respect to the exit was in fact in existence between the owner of the premises and the tenant"; and, "* * * that the agreement is something I don't think plaintiff can prove at the time of trial. * * *".

At the juncture stated the District Court declared that "for the purpose of this argument I am going to assume as true all those facts upon which you plaintiff's counsel are relying * * * and face this legal question squarely irrespective of the facts".

The District Court at the conclusion of the oral argument granted defendant's motion for summary judgment and directed submission of an Order.

In doing so the court made it clear that it premised its disposition on its view that "assuming" an agreement by defendant with its tenant to place the lighting fixture at a proper location and, defendant's failure to do so, plaintiff still could not recover damages for her injuries from defendant "either on the theory of tort or contract", since she was "an utter stranger to the landlord".³

On this appeal plaintiff urges (1) the District Court erred in granting summary judgment on defendant's motion in view of the existence of a genuine issue as to material facts; and (2) she had made out a case by reason of defendant's improper placing of the lighting fixture in breach of its express undertaking to do so and its obligations under the lease.

Defendant's answer to the first contention is that plaintiff failed below to properly raise the existence of a genuine issue as to material facts in the manner required by Fed.R.Civ. 56(e), 28 U.S.C. in that she had failed to file an affidavit based on personal knowledge, setting forth the facts on which she relied in contravention of defendant's motion for summary judgment and its supporting affidavit. "Mere statements or contentions of counsel" with respect to the existence of a factual situation, urges the defendant, may not be accepted in substitution of the affidavits required by Rule 56(e). In support defendant cites Geller v. Transamerica Corporation, D.C. Del.1943, 53 F.Supp. 625, 629, affirmed 3 Cir., 1945, 151 F.2d 534, where it was held that "Where affidavits controvert unverified averments in a complaint, absent the filing of counter-affidavits, I fail to see how genuine issues of fact are created within the meaning of Rule 56 of the Rules of Civil Procedure". Defendant also cites cases in which the trial court rejected attempts to raise factual questions in briefs on the ground that they were not part of the record.

On the score of plaintiff's second contention that she had established a cause of action, defendant replies that in the absence, in a lease, of an express covenant to repair, no duty to do so is imposed on the landlord, and says the lease in the instant case is silent on the question of repairs; further, a landlord, in New Jersey is not liable to an invitee of the tenant for injuries resulting from the breach of a covenant to repair, or for nonfeasance, as distinguished from misfeasance with respect to repairs actually undertaken.

Applicable to summary judgment proceedings are these well-settled principles which we had occasion to state in Lawlor v. National Screen Service Corporation, 3 Cir., 1956, 238 F.2d 59 at page 65, reversed on other grounds 352 U.S. 992, 77 S.Ct. 526, 1 L.Ed.2d 540:

Summary judgment may be granted only if the pleadings, depositions, admissions on file and affidavits "* * * show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law". Fed.R.Civ.P. 56(c).

Any doubt as to the existence of a genuine issue of fact is to be resolved against the moving party.

Documents filed in support of a motion for summary judgment are to be used to determine whether issues of fact exist and not to decide the fact issues themselves.

To the foregoing may be added our earlier ruling in Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 3 Cir., 1951, 190 F.2d 817, 824 that:

"The law is clear that one who moves for a summary judgment has the burden of demonstrating that there is no genuine issue of fact".

Applying the principles stated we are of the opinion that the District Court erred in granting defendant's motion for summary judgment. Implicit in its disposition of the motion for summary judgment is the District Court's sanction and acceptance of the manner in which plaintiff presented her contentions with respect to material facts which were disputed by defendant, viz., defendant's supplemental agreement with...