Rupp v. Burgess
| Decision Date | 17 November 1903 |
| Parties | RUPP et ux. v. BURGESS. |
| Court | New Jersey Supreme Court |
Action by Frederick Rupp and wife against Robert E. Burgess. On demurrer to declaration. Demurrer sustained to first count, and overruled to second.
Argued June term, 1903, before GUMMERE, C. J., and DIXON, HENDRICKSON, and PITNEY, JJ.
James B. McKee, for plaintiff.
Hugh B. Reed, for defendant.
The declaration contains two counts, the first of which sets out that the defendant was the owner of a certain lot fronting on Newton street, in the city of Newark, and that while owning and occupying this lot he wrongfully and knowingly permitted the flagstones with which the sidewalk in front of his property was covered to become and remain in a broken, insecure, and dilapidated condition, and that by reason of such conduct the female plaintiff, who was then passing along the street upon this portion of the sidewalk, without any negligence on her part, stumbled and fell over the said broken flagstones, and was seriously injured by her fall. The second count alleges the ownership and occupation by the defendant of the said premises, and then states that immediately under the pavement on the sidewalk in front of said premises, and covered by said pavement, there was, at the time of the accident to the female plaintiff therein set forth, a certain drain, trench, or gutter, intended for the passage of surface water, extending from the messuage of the defendant to the curbstone of the said street, and belonging to the said messuage. Then follows a statement that the defendant wrongfully and knowingly permitted the pavement which covered the said trench or gutter to become and remain in a broken, insecure and dilapidated condition, so that the said gutter was insufficiently and ineffectively covered, and that by reason thereof the said female plaintiff, who was then passing along the street upon the said portion of said sidewalk, necessarily and unavoidably stumbled and fell over the broken pavement, into the said trench, whereby she was seriously injured. The defendant has demurred separately to each count.
The first count plainly discloses no cause of action. It is based upon the assumption that the owner and occupant of premises abutting upon a public street is under a legal duty to keep in repair the sidewalk in front of his property. But no such obligation rests upon him, unless by virtue of the requirements of a statute or municipal ordinance ...
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