Moskowitz v. Herman ( 1954 )

The opinion of the court was delivered by

Oliphant, J.

This is a sidewalk accident case grounded in nuisance and negligence.

On November 18, 1951, shortly before nine o’clock in the evening, the plaintiff, accompanied by a friend, was walking along the sidewalk in front of premises at 483 Springfield Avenue in Newark, when her foot caught in a hole in the walk and she fell causing injuries to her and consequent damages.

The defendant, H. Leslie Corp., was the owner of the premises abutting the sidewalk and Jack Herman, trading as Herman’s Radio Service, was the tenant. The testimony of the plaintiff showed that the property was acquired by the corporate defendant in 1944 and that the individual defendant had been a tenant in the premises since that time.

There can be no question but what the sidewalk had deteriorated and was in poor condition but the testimony showed that it was generally in the same condition at the time of plaintiff’s fall as it was in 1944 when acquired and occupied by these defendants and there was a complete dearth of evidence as to when it had been constructed. Plaintiff’s expert on sidewalk construction, who examined this sidewalk in December 1951, testified that the walk had been constructed for pedestrian use. He did testify that it had been poorly constructed but that the standard he used was for a sidewalk to be used both for pedestrian and commercial purposes. He was unable to say at what time this walk was constructed nor how long it had been in the condition existing at the time of the accident to the plaintiff.

At the close of plaintiff’s case both defendants moved for the dismissal of the action and the motions were granted. R. R. 4:42-2(6). On appeal to the Appellate Division the judgment entered below was affirmed and on plaintiff’s petition this court granted certification. 15 N. J. 380.

Here the appellant argues that the proofs established a defectively constructed sidewalk which constituted a nuisance in its inception and that the nuisance thereby created was adopted by these defendants.

The prime difficulty with plaintiff’s contention is her lack of proof as to when the sidewalk was constructed and the proper standard of construction at that time. There was no proof as to the creation of any nuisance by the defendant owner or by its predecessors in title in the original construction of the sidewalk.

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 (Sup. Ct. 1903); Rose v. Slough, 92 N. J. L. 233 (E. & A. 1918); Murphy v. Fair Oaks Sanatorium, 127 N. J. L. 255 (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 wear 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 (E. & A. 1935); Halloway v. Goldenberg, 4 N. J. Super. 488 (App. Div. 1949); Snidman v. Dorfman, 7 N. J. Super. 207 (App. Div. 1950). The distinction between liability and non-liability has been said to he between a faulty construction and its continuance, and dangers which may exist b cause of the wear and tear of the elements and the public.” Glass v. American Stores Co., Inc., 110 N. J. L. 152 (E. & A. 1933).

But plaintiff says the individual defendant made an improper use of the sidewalk, that he used it for a purpose for which it was not adapted, that this made the pre-existing condition worse and that this amounted to a public nuisance. Reliance is placed on Prange v. McLaughlin, 115 N. J. L. 116 (E. & A. 1935). Again the plaintiff cannot surmount her lack of proof.

There was testimony that there had been some deliveries of washing machines and refrigerators made on the sidewalk in front of the store near the curb which were then moved into the store by hand truck. There was no proof that the plaintiff fell where these deliveries had been made or that these deliveries caused the walk to break. As a matter of fact, the evidence showed that the sidewalk had remained in the same broken and dilapidated condition from the time when the defendants acquired it to the date of the accident.

We find no evidence of negligence on the part of the defendants or the existence of a nuisance created, continued or adopted by them, which would have warranted the submission of the cause to the juTy.

Judgment affirmed.