Murray v. Michalak

• Decision Date: 16 December 1970
• Citation: 114 N.J.Super. 417,276 A.2d 866
• Parties: Frances MURRAY and John A. Murray, Plaintiffs-Respondents, v. Andrew J. MICHALAK and Jean K. Michalak, t/a The Chancellor Guest Home, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 417

114 N.J.Super. 417

276 A.2d 866

Frances MURRAY and John A. Murray, Plaintiffs-Respondents, v. Andrew J. MICHALAK and Jean K. Michalak, t/a The Chancellor

Guest Home, Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 23, 1970.

Decided Dec. 16, 1970.

Jay H. Greenblatt, Vineland, for appellants (Greenblatt & Greenblatt, Vineland, attorneys).

William J. Hughes, Ocean City, for respondents (Loveland, Hughes & Garrett, Ocean City, attorneys, Arthur T. Ford, III, Ocean City, on the brief).

Before Judges ,GOLDMANN, LEONARD and MOUNTAIN.

The opinion of the court was delivered by

MOUNTAIN, J.A.D.

Defendants appeal from a judgment entered upon a jury verdict in favor of plaintiffs. They allege as error the refusal of the trial court to grant their motions for judgment at the conclusion of the plaintiffs' case and for judgment Non obstante veredicto following the return of a verdict favorable to plaintiffs. Defendants offered no proofs.

The root of a tree elevated a flagstone in defendants' sidewalk. The tree was growing in the strip of ground that commonly is to be found between sidewalk and curb. While walking along the sidewalk plaintiff, Frances Murray, tripped over the raised slab, fell and sustained injuries.

There was no testimony as to who planted the tree. An expert called by the plaintiffs estimated it had been planted 15--25 years before the accident. It was also shown that the municipality (Ocean City) had no shade tree commission, never had one, nor did it care for or maintain the city's shade trees. On the other hand, there was uncontradicted testimony that defendants as well as their immediate predecessors in title, had never tended the tree nor had they ever sought to repair the sidewalk. Upon this evidence the court found that a jury might reasonably draw an inference that the tree had been planted by a former owner of defendants' property and that hence this issue--who planted the tree--should go to the jury. We cannot agree.

An abutting owner is not liable for injuries suffered by a pedestrian on a defective or dilapidated sidewalk even though it constitutes a nuisance, unless the proofs show that that owner or his predecessor in title participated in the creation or continuance of the nuisance. Rupp v. Burgess, 70 N.J.L. 7 (56 A. 166) (Sup.Ct.1903); Rose v. Slough, 92 N.J.L. 233 (104 A. 194) (E. & A. 1918); Murphy v. Fair Oaks Sanatorium 127 N.J.L. 255 (21 A.2d 806) (E. & A. 1941); cf. American Law Institute, Restatement of the Law, 2 Torts (Negligence, sec. 349--50, pp. 956--960; Negligence Law in New Jersey, Stevenson (1945), pp. 132--133. The owner of premises abutting a public sidewalk is not responsible for defects therein caused by the action of the elements or by were and tear incident to public use, and not caused by his own wrongful act. Rupp v. Burgess, Supra; Volke v. Otway, 115 N.J.L. 553 (181 A. 156) (E. & A. 1935); Halloway v. Goldenberg, 4 N.J.Super. 488 (67 A.2d 891) (App.Div.1949); Snidman v. Dorfman, 7 N.J.Super. 207 (72 A.2d 795) (App.Div.1950). (Moskowitz v. Herman, 16 N.J. 233, 225--226 (108 A.2d 426) (1954))

A plaintiff does not make out a Prima facie case against an abutting owner merely by putting in proof of the existence of a nuisance, and he cannot thereby throw upon the owner the burden of establishing that neither he nor his predecessor in title is responsible for its creation or continuance. (citing cases) On the contrary, plaintiff has the burden of proving that the owner of his predecessor in title was responsible therefor. (Lambe v. Reardon, 69 N.J.Super. 57, 64--65 (173 A.2d 520) (App.Div.1961), certif. den. 36 N.J. 138 (174 A.2d 924) (1962))

It must be conceded that the proofs necessary to establish a Prima facie case may often be difficult or impossible for a plaintiff to discover. But this court has said,

We come then to the question whether there is a presumption, or a rule affecting the burden of proof, which aids the plaintiffs. In the present case, as above observed, there is no proof that the defective work on the...