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Savarese v. Fleckenstein

Decided: November 13, 1933.

EMMA SAVARESE, RESPONDENT,
v.
EDWARD F. FLECKENSTEIN AND ALBERT F. FLECKENSTEIN, APPELLANTS



On appeal from the District Court of the city of Bayonne.

For the respondent, William Rubin.

For the appellants, Tumulty & Tumulty.

Before Justices Parker, Lloyd and Perskie.

Lloyd

The opinion of the court was delivered by

LLOYD, J. 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 declaring liability are:

Weller v. McCormick, 52 N.J.L. 470, 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.L. 7, 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.L. 471; affirmed, 87 Id. 696, for a defective cellar door which he places in the sidewalk as a means of entrance.

Braelow v. Klein, 100 N.J.L. 156, for his negligence in permitting a sidewalk defectively constructed by his predecessor in title ...


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