Savarese v. Fleckenstein

• Citation: 168 A. 850
• Decision Date: 13 November 1933
• Docket Number: No. 447.,447.
• Parties: SAVARESE v. FLECKENSTEIN et al.
• Court: United States State Supreme Court (New Jersey)

168 A. 850

SAVARESE

v. FLECKENSTEIN et al.

No. 447.

Supreme Court of New Jersey.

Nov. 13, 1933.

Appeal from District Court of Bayonne.

Action by Emma Savarese against Edward F. Fleckenstein and another. Judgment for plaintiff, and defendants appeal.

Reversed.

Argued May term, 1933, before PARKER. LLOYD, and PERSKIE, JJ.

Tumulty & Tumulty, of Jersey City, for appellants.

William Rubin, of Bayonne, for respondent.

LLOYD, Justice.

The plaintiff below instituted an action to recover damages for personal injuries occasioned by a fall on the sidewalk in front of the premises of the defendants, and obtained judgment therein in the district court. The defendants appeal assigning, among others, as grounds for reversal, that there should have been a nonsuit or a verdict directed in their favor.

The alleged claim is based on the following proofs:

The defendants had contracted with an oil burner company for the installation of an oil burner in their premises, and the contract of installation called for placing the oil tank under the sidewalk and replacement of the pavement which would necessarily be opened for the purpose. The oil burner company subcontracted for the digging and replacing of the sidewalk. After the burner had been installed, the sidewalk that had been removed was refilled with cinders and the sidewalk permitted to remain in that condition for about three weeks. This resulted in the fill becoming uneven and holes forming to the depth of four or five inches below the adjacent concrete sidewalk, and it was these that occasioned plaintiff's fall. The reason for leaving the fill in this condition for a period of three weeks, as explained by the subcontractor, was that he waited until he could get another job in the vicinity.

It is sought to hold the owners of the adjacent premises on the theory that a nuisance was created for which, by reason of the delay 'of the contractor in making the proper repair, the owners became liable.

We think this contention is unsound. A long line of cases in this state, arising out of varying conditions and circumstances, has clearly defined, as we think, the duty such owner owes to the using public. He is liable for his own acts in negligently endangering such use, and he is liable for like acts of a predecessor in title whose deed he takes with the wrongful results of such acts still subsisting. Illustrative of cases declaring liability are:

Wellcr v. McCormick, 52 X. J. Law, 470, 19 A. 1101, 8 L. R. A. 708, where the owner plants a tree on the sidewalk; inasmuch as the tree belongs to and is under the control of the owner of the abutting property, he is bound to use reasonable care to prevent it from becoming dangerous.

Rupp v. Burgess, 70 N. J. Law, 7, 56 A. 166, for a drain which he places across the sidewalk to carry water from his premises and which he neglects to keep in repair.

Kelly v. Brewing Co., 86 N. J. Law, 471, 92 A. 282, affirmed 87 N. J. Law, 696, 94 A. 1102, for a defective cellar door which he places in the sidewalk as a means of entrance.

Braelow v. Klein, 100 N. J. Law, 156, 125 A. 103, for his negligence in permitting a sidewalk defectively constructed by his predecessor in title to remain in a dangerous condition.

He, however, is of course not responsible for the acts of strangers. He is not liable for the wear and tear of the sidewalk by the use of the public (McKcown v. King, 99 X. J. Law, 251, 122 A. 753), even though a municipal ordinance imposes on him the duty of repair. Rupp v. Burgess, supra. He is not responsible for the ravages of time (Weller v. McCormick, 47 N. J. Law, 397, 1 A. 516, 54 Am. Rep. 175), or the development of vegetation. Rose v. Slough, 92 X. J. Law, 233, 104 A. 194, L. R. A. 1918F, 813. He is not liable for the acts of an independent contractor who constructs a building on abutting premises and dangerously obstructs the sidewalk as incident thereto. Mann v. Max, 93 N. J. Law, 191, 107 A. 417, 21 A. L. R. 1227.

More recent cases in this court consistently reaffirm this standard of duty. In addition to those already cited are Bush v. Margolis, 102 X. J. Law, 179, 130 A. 525; Ford v. Jersey Central Power & Light Co., 111 N. J. Law, 112, 166 A. 490; Taggart v. Bouldin, 111 X. J. Law, 464, 168 A. 570, Court of Errors and Appeals (not yet reported [in State Report]).

The case of Mann v. Max, supra, relied on in the opinion of the court below, seems to us an authority exactly to the contrary of liability. There, as here, there was a contract to do work on the premises abutting a sidewalk. In that case it was the construction of a building; here it was the installation of an oil heating system. Both contemplated certain uses of the sidewalk by the contractor. There the plaintiff struck his head against a beam of a scaffold extending over the sidewalk; here the plaintiff fell over the partly repaired sidewalk the replacement of which was called for in the con tract. The trial judge submitted to the jury to find whether the obstruction of the scaffold was a nuisance, and if so whether it had existed as such long enough for a reasonable owner to notice the fact and take proper steps to abate it. The Court of Errors and Appeals, in an opinion by Justice Parker, held that this was error, and that no liability of the owner of the property could be predicated on the theory of a duty to abate if it existed there by the act of the independent contractor. The only difference between that case and the present is that here it was a sidewalk which was disturbed in the placing of the oil tank instead of a beam extending over it. When the fill was made, it, like the scaffold, was left in a dangerous condition by the contractor prior to the replacement of the sidewalk as required by the contract. In the one case an affirmative act of negligence, in the other a negative. In principle there is no difference between the two cases. If in the Mann Case the owner did not become liable by reason of failure to abate a nuisance remaining on the sidewalk long enough for such owner to notice the fact and take steps to abate it, he did not become liable for failure to abate a nuisance which an independent contractor had created through neglect to properly tamp or otherwise guard against holes in the incompleted repair of the sidewalk.

Applying the principles resulting, we have in the present case a contract made by the owners with an oil burner company for the installation of an oil heating system in their property. It was necessary for the contractor to open the sidewalk for the purposes of the installation. This was not in itself a nuisance. That part of the contract was subcontracted and the subcontractor left the sidewalk in the condition already described. In this there was undoubtedly evidence from which negligence could be inferred, but it was not the act of the owners. We have, therefore, a clear case of an independent contractor, negligently performing his work. The general scheme of the improvement was, of course, for the benefit of the owners; but is we have seen the owners are not responsible for the acts of an independent subcontractor, illustrated in many cases. They could only become liable upon the implied adoption of the acts of the wrongdoer, and of this there was no proof. The installation had been but recently completed and the sidewalk not yet replaced. There was no evidence that it had been accepted or even paid for at the time of the plaintiff's fall. If, invoking the doctrine of Braelow v. Klein, supra, we should hold that acceptance by the owner of the faulty condition of the sidewalk left by the subcontractor imposed a duty on the owners to remedy the defects, the absence of proof of such acceptance precludes its application and brings the owners within the protection of the numerous decisions in which the rules of nonliability first laid down in this opinion are declared.

The judgment is reversed, with costs.

PERSKIE, Justice (dissenting).

With profound respect and deference to my colleagues, I find myself unable to agree with the result reached by them. Their result is predicated on the following hypothesis: "It is sought to hold the owners of the adjacent premises on the theory that a nuisance was created for which, by reason of the delay of the contractor in making the proper repairs, the owners become liable." Is this so? It clearly appears in the record that the owners were held liable on the ground that the defective condition of the sidewalk continued long enough for them to "have been put on notice," and therefore it became their duty to abate it.

The trial judge, sitting without a jury, found as a fact that the condition of the sidewalk was a public nuisance. The proofs fully justified the finding.

The case of Mann v. Max, 93 N. J. Law, 191, 107 A. 417, 21 A. L. R. 1227, is cited and urged as supporting the conclusion reached by the majority, i. e., that there is no liability on the part of the owners in the premises. In that case it was held that the owner of real estate abutting upon a highway may become liable for the act of an independent contractor, even though the thing done is itself not a nuisance where a continuation of the condition complained of for an unreasonable length of time does result in a nuisance. Mr. Justice Parker, in that case, on page 194 of 93 N. J. Law, 107 A. 417, 418, held: "The building was unfinished, and normally such a scaffold would remain till no longer needed for the front wall, which was under erection; so the question of its maintenance for an unreasonable time is out of the case." (Italics mine.)

In the case of Bush v. Margolis, 102 N. J. Law, 179, 130 A. 525 (a resident of Philadelphia, prior to the opening of his summer home in ...