On appeal from a judgment of the District Court of the First Judicial District of the county of Essex.
For the appellants, Pellegrino J. Pellecchia, Jr., and Frank Cozzoline.
For the respondent, Hugh F. Doherty.
Before Justices Lloyd, Case and Donges.
The opinion of the court was delivered by
DONGES, J. Plaintiffs brought suits in the District Court to recover for personal injuries alleged to have been sustained by them from the breaking of a large plate glass window, which formed part of the front of the building occupied by the defendant. It appeared that as plaintiffs were walking on the sidewalk in front of the building, the glass fell out upon and injured them. The cases were tried together and the court found for the defendant, holding that it did not appear that defendant, under the lease of the premises, had control of the windows; that the plate glass window was part of the structure excepted by the terms of the lease from the duty of repair by the defendant; and that, therefore, no duty being imposed upon defendant with respect to the window, the doctrine of res ipsa loquitur did not apply and that no negligence of defendant was shown. From the judgment entered this appeal is taken.
The uncontroverted facts are that defendant was the lessee in possession of the whole of the premises in question; that on the day in question a plate glass show window in front of the premises broke and injured plaintiffs as they were lawfully walking upon the sidewalk; that there was a wind, varying from twenty-five to forty-five miles per hour; that they were heavy winds, but not extraordinary winds and were not of hurricane velocity which would require wind with a velocity of seventy miles per hour or over; that no other windows in the neighborhood were broken. It was testified that the landlord knew of no injury or repairs to this or other windows in the building. The defendant relies upon the following clause in the lease:
"The tenant does hereby covenant to make all necessary repairs to the interior of the demised premises, during the term of this lease, including all plumbing, painting, store
maintenance and the replacing of all broken glass, except showroom plate glass. Should said repairs become necessary because of structural defects, they shall be made by the landlord."
Whether this provision imposed the duty of maintenance and repair of the window in question upon the landlord, it is not necessary to decide.
In McKeown v. King, 99 N.J.L. 251, it was held, in discussing the question of liability of a tenant, when the landlord agreed to maintain the exterior of the demised premises:
"This provision of the lease fixes the obligations and duties between the landlord and tenant, but no provision of a lease can absolve a tenant as against a third person from the tenant's duty to maintain a sidewalk in front of the demised premises in a reasonably safe condition. 'A tenant or occupant of premises owes a duty to third persons resorting thereto in the course of business, or upon his invitation, express or implied, to keep the premises in a reasonably safe condition, regardless of the question as to ...