Lindemann v. F. W. Woolworth Co.

• Decision Date: 22 September 1939
• Docket Number: No. 19.,19.
• Citation: 123 N.J.L. 208,8 A.2d 321
• Parties: LINDEMANN v. F. W. WOOLWORTH CO. et al.
• Court: New Jersey Supreme Court

8 A.2d 321

123 N.J.L. 208

LINDEMANN

v. F. W. WOOLWORTH CO. et al.

No. 19.

Court of Errors and Appeals of New Jersey.

Sept. 22, 1939.

PERSKIE, J., dissenting.

Appeal from Supreme Court.

Action by Rudolph Lindemann against the F. W. Woolworth Company and others for personal injuries suffered in a fall on a sidewalk in front of premises occupied by the named defendant as lessee. From a judgment of the Supreme Court, 121 N.J.L. 614, 3 A.2d 888, affirming a judgment for plaintiff, the named defendant appeals.

Reversed.

Carey & Lane, of Jersey City (Robert Carey, Harry Lane, and David A. Pindar, all of Jersey City, of counsel), for appellant.

Collins & Corbin, of Jersey City (Edward A. Markley and James B. Emory, both of Jersey City, of counsel), for respondent.

PORTER, Justice.

The plaintiff-respondent, Rudolph Lindemann, recovered a judgment in the Hudson County Court of Common Pleas against the defendant-appellant, F. W. Woolworth Company (hereinafter called Woolworth Co.), for personal injuries suffered by him as a result of a fall on the sidewalk on Bloomfield Street, Hoboken, in front of premises occupied by Woolworth Co. as lessee. Woolworth Co. appealed to the Supreme Court where the judgment was affirmed, 121 N.J.L. 614, 3 A.2d 888. From that affirmance comes this appeal. We conclude that the Supreme Court was in error in not reversing the judgment below. Under the facts and the settled law there was no liability on the part of Woolworth Co. and a nonsuit should have been allowed by the trial court.

Lindemann was walking along the sidewalk at about four o-clock on the morning of February 10, 1935; it was dark and a light fall of snow covered the ground.

The premises occupied by Woolworth Co. fronted on Washington Street, where its store was located, and ran through to the street in the rear, Bloomfield Street, where it had a yard and a driveway across the sidewalk leading into the premises. It was on the sidewalk of Bloomfield Street where Lindemann fell. The sidewalk was of concrete, abutting the curb, and was about nine feet in width. Between it and the building line, where a fence was located, was an unpaved space of about ten feet in width consisting of dirt and cinders and depressed a few inches below the level of the concrete sidewalk. As Lindemann reached the south end of the premises, walking in a northerly direction, he walked a few steps along the paved sidewalk in question when he stepped, or slipped, off the sidewalk onto the unpaved lower level, fell to the ground and was injured.

At that time Woolworth Co. was in possession of the premises under a lease and had been since about January 1, 1934.

The sidewalk had been constructed in 1927, when the defendant S. S. Kresge Company was in possession under a lease, and had remained unchanged until the date of the accident.

The Woolworth Co. lease is not before us, and what its provisions may be with respect to its obligation to the lessor to make repairs, or otherwise, are not shown.

It does appear that about seven months after the accident Woolworth Co. did, in fact, pave the space along the concrete sidewalk and between it and the building line, but surely that fact can in no way fix upon it any obligation or duty owing to Lindemann or any third party using the sidewalk. Lindemann was not using this sidewalk at the implied invitation of Woolworth Co. to enter its place of business, but was a pedestrian, using the sidewalk as such, without any relationship or concern with the occupant or owner of the premises.

The law is well settled in this state that owners or occupants are under no duty to keep in repair sidewalks in front of the premises owned or occupied by them. They are not liable for defects caused by wear and tear by the elements or by public use. Rupp v. Burgess, 70 N.J.L. 7, 56 A. 166, McKeown v. King, 99 N.J.L. 251, 122 A. 753; Braelow v. Klein, 100 N.J. L. 156, 125 A. 103; Ford v. Jersey Central Power, etc., Co., 111 N.J.L. 112, 166 A. 490; Volke v. Otway, 115 N.J.L. 553, 181 A. 156; Schwartz v. Howard Savings Institution, 117 N.J.L. 180, 187 A. 171.

Liability does exist, however, where damage is caused by the wrongful act of the owner or occupant. Davis v. Tallon, 91 N.J.L. 618, 103 A. 236; Prange v. McLaughlin, 115 N.J.L. 116, 178 A. 782; Savarese v. Fleckenstein, 111 N.J. L. 574, 168 A. 850, affirmed 114 N.J.L. 275, 176 A. 332.

In the instant case Woolworth Co. was guilty of no wrongful act. As before stated, it did not alter or change the existing...