Snidman v. Dorfman, A--208

• Decision Date: 19 April 1950
• Docket Number: No. A--208,A--208
• Citation: 72 A.2d 795,7 N.J.Super. 207
• Parties: SNIDMAN v. DORFMAN.
• Court: New Jersey Superior Court — Appellate Division

Page 207

7 N.J.Super. 207

72 A.2d 795

SNIDMAN v. DORFMAN.

No. A--208.

Superior Court of New Jersey

Appellate Division.

Argued April 10, 1950.

Decided April 19, 1950.

Herbert H. Gorson, Atlantic City, argued the cause for appellant (De Brier & Gorson, Atlantic City, attorneys).

John Lloyd, Jr., Atlantic City, argued the cause for respondent (Lloyd & Horn, Atlantic City, attorneys; Henry P. Megargee, Jr., Atlantic City, on the brief).

Before Judges JACOBS, DONGES and BIGELOW.

The opinion of the court was delivered by

BIGELOW, J.A.D.

The plaintiff sued for damages for personal injuries sustained in a fall on a defective sidewalk. The action was tried before a jury in the District Court and ended in a dismissal at the conclusion of the plaintiff's case. The plaintiff appeals. Briefly the facts that the jury might have found are these:

Plaintiff, a woman 65 years old, was walking along Vermont Avenue, in front of the Vermont Apartments, when her shoe caught in a hole or depression in the sidewalk, causing her to fall. The sidewalk, extending from the curb to the apartment building, was of cement cut into large squares. One of the squares had needed repair where it joined the next square. So someone with chisel or hammer removed or roughened the surface and then put in a cement patch. Part of the patch,--a piece two or three inches across,--eventually came off, leaving the depression in which plaintiff's foot caught.

The inference might properly be drawn that the sidewalk was patched by the servants of the abutting owner, or by an independent contractor engaged by the owner. Harrison v. New York Bay Cemetery Co., 77 N.J.L. 514, 73 A. 546 (E. & A.1908); Christine v. Mutual Grocery Co., 119 N.J.L. 149, 194 A. 625 (E. & A.1937). There was no evidence from which the jury might conclude that the work was done by a servant rather than a contractor. Indeed, common experience points to an independent contractor, since few apartment house owners use their own employees for sidewalk repairs. This view of the matter is not out of harmony with Jensen v. Slovenz, 5 N.J.Super. 447, 69 A.2d 595 (App.Div.1949), which followed Redstrake v. Swayze, 52 N.J.L. 129, 18 A. 697, affirmed 52 N.J.L. 414, 21 A. 953. These cases hold where the plaintiff proves a prima facie case of master and servant, that if the defendant claims that the real relation was one of employer and contractor, he has the burden of proving it. In the case before us, no prima facie case was made out of the master and servant relation as distinguished from that of employer and independent contractor.

There was evidence tending to prove that the patch was put on the sidewalk at a time when defendant owned the Vermont Apartments. Defendant testified at the trial December 9, 1949, that she had owned the property two or three years, and that she herself lived in one of the apartments. Chanese, an experienced cement contractor, testified that in his opinion the repair work had been done several months back; he did not think it could have been done 'several years ago.' There was also testimony by one Stumacker from which it might be inferred that the patch had broken away, leaving the hole in the sidewalk, very shortly before Christmas 1948. This was five months before the accident occurred, May 14, 1949.

Chanese further testified that the sidewalk had not been repaired in a skillful, proper manner. The repairman should have cut away the old cement to a depth of three or four inches,--as deep as the old cement, and then the new cement would have held fast; but actually he chiselled the old cement away very little and his patch was only an inch thick and that was the reason the patch did not stick in place but came off, leaving the dangerous depression. Chanese also stated that the hole, after the patch was gone, was bigger than it was prior to the making of the repair. Chiselling to prepare the walk for the patch naturally deepened the hole.

The action was dismissed on the ground that the defendant did not appear to be answerable at law for the defective condition of the sidewalk. A property owner owes no duty to the public to build or maintain the sidewalk in front of his premises and is not responsible for defects therein which are caused by the action of the elements, or by wear and tear incident to the public use of the walk. Rupp v. Burgess, 70 N.J.L. 7, 56 A. 166 (Sup.Ct.1903); Volke v. Otway, 115 N.J.L. 553, 181 A. 156 (E. & A.1935). There is no evidence that...