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Colligan v. 680 Newark Avenue Realty Corp.

Decided: April 20, 1944.


On appeal from the Hudson County Circuit Court.

For the appellant, Gannon & Gannon.

For the respondent, David M. Klausner.


The judgment under review is affirmed by an equally divided court.

CASE, J. Plaintiff sued to recover for personal injuries resulting from the fall of an elevator. My view of the nature of the suit will appear in the course of this memorandum. The premises were under lease from the defendant owner to the United States of America for use as a post office and substation. Plaintiff was employed by the Post Office Department as superintendent of the station and as such was in full control of the leased premises on behalf of the tenant. The lease contained the following covenant:

"The Lessor shall, unless herein specified to the contrary, maintain the said premises in good repair and tenantable condition during the continuance of the lease, except in case of damage arising from the act or the negligence of the Government's agents or employees. For the purpose of so maintaining the premises, the lessor reserves the right at reasonable times to enter and inspect the premises and to make any necessary repairs to the building."

The leased premises embraced an electric freight elevator which was used and operated exclusively by the tenant and

its agents for the moving of post office goods between the first and second floors. Plaintiff was using the elevator for such a purpose, under his personal operation, when he received his injury. The lease contained no special reference to the elevator; it obligated the lessor, generally, to maintain the premises in good repair and tenantable condition and reserved to the lessor the right to enter, inspect and repair; it did not, in terms, state a duty to enter and inspect, and it did not reserve control. The lessor, except for his right to inspect and repair, had no power or right to admit people to the premises and, without exception, had no right to exclude them. The landlord was obligated to supply heat, but the heater -- an oil burner -- was in a cellar which the tenant had no occasion to use, which was not under its control and which was reached, not through the building, but by a separate entrance from the street. The case is lean in proofs. The condition of the cables immediately after the accident was described by a lay observer. He testified that some of the strands showed a fresh break and that others showed old breaks, and by "old" he meant, so he said, that the strands "were covered with grease and dirt, all black;" he added that some of the ends were frayed but he "would not say it [the state of the cable] showed a worn condition." There was no proof of the amount of use or of the length of time it would take a fresh break to become blackened with grease or of what, if any, inspection had been made. I am unable to concur in the suggestion that the elevator was under the control and management of the owner. Full management and control, except for such duty as lay in the covenant for general repairs, were in the tenant.

The use made by Colligan of the elevator was in his capacity as an employee of the lessee -- thus in fact and thus by the allegation of his complaint. He was in the active performance of his duties. His rights there flowed out of his relationship with his employer. He had no privity either of estate or of contract with the landlord. The general rule is that where there is neither privity of estate nor privity of contract the owner of premises is not liable for injuries sustained by third persons by reason of the condition of the premises unless by invitation express or implied the owner induces them to come

upon the premises. Clyne v. Helmes, 61 N.J.L. 358, 368; Eberle v. Productive Building and Loan Association, 119 Id. 393. There is no substantial support for an argument of special invitation. In order to maintain an action of tort for breach of a contractual duty a plaintiff must have the same status under the contract as would entitle him to maintain an action upon the contract for a breach of its stipulation, Fedor v. Albert, 110 Id. 493; Styles v. Long Co., 67 Id. 413; and this applies to real estate rental agreements, Eberle v. Productive Building and Loan Association, supra. The principle which, as enunciated in the Clyne case, was applied to a member of the tenant's household applies equally to an employee of the tenant. The continued recognition of that principle was manifested by this court in Monohan v. Baime, 125 Id. 280, in this language: "From the facts tendered and found in this cause there is no trespass upon the holding and principle in Clyne v. Helmes, 61 N.J.L. 358, and kindred cases * * *." Under the foregoing principle of law, thoroughly established in this state, the plaintiff, an employee of the tenant, could not maintain an action, either on contract or in tort, grounding in the contract.

Appellant argues that independent of contractual obligation he may hold the landlord upon the theory of retained control. (Cf. Shemin v. Steinberg, 117 Id. 458.)

The trial court considered, however, that the plaintiff had framed his complaint upon the lessor's duty to repair under the lease and upon a negligent failure in that contractual obligation; and that construction appears to be sound. Further, it is apparent that the defendant did not retain control of the elevator in the sense that a landlord retains control of the stairways, or of the roof, in a multiple tenant building; indeed, I suggest that neither the ordinary nor the technical use of the words "management" and "control" comprehends the relationship which the defendant bore to the leased premises or any part thereof. The plaintiff has not brought himself within any of the exceptions to the general rule.

But even if we assume that the plaintiff herein was one of those who could recover on a breach of that duty, the burden was upon him to prove either (a) that the defect had in fact

been brought to the previous notice of the defendant, or (b) that the defect had existed for such a space of time before the occurrence as would have afforded the defendant a reasonable opportunity to make proper inspection to ascertain the condition and to repair the defect. That burden rests upon a plaintiff, generally, in actions ex delicto to recover for injuries caused by defects in property conditions where defendant was under a duty to exercise reasonable care to keep the property in a safe condition for use. Schnatterer v. Bamberger & Co., 81 N.J.L. 558. Battschinger v. Robinson, 83 Id. 739, is not at variance with that rule. There was proof in that case, as an examination of the record will disclose, that for at least a week before the accident the dumb-waiter rope was wearing so seriously that particles of lint from it floated into an apartment of one of the tenants and settled upon the casement and floor in sufficient quantity to be brushed up and that the fibres of the rope had broken away to the extent that as the rope passed the dumb-waiter opening the diminishing thickness of the rope at the weakened section was noticeable.

It is my view that inasmuch as the plaintiff was the superintendent of the building, in full charge thereof, he had knowledge of what had or had not been done by way of inspection and repair by the landlord and could well have testified thereon; also, that it was within his easy reach to procure evidence of the significance of the condition in which the elevator cables were found immediately after the accident; and that therefore he had by no means exhausted his available proof. If I correctly understand the view of the evidence upon which some members of the court reach their conclusion, it is that the plaintiff's proofs, with the inferences fairly to be drawn therefrom, made a jury case without resort to the doctrine of res ipsa loquitur; nevertheless their line of reasoning trenches close upon that doctrine and decisions cited in support of the argument include at least two cases, Griffen v. Manice, 166 N.Y. 188; 59 N.E. Rep. 925, and Goldstein v. Pullman Co., 220 N.Y. 549; 116 N.E. Rep. 376, that turn upon it. For two reasons the doctrine of res ipsa loquitur should not be applied here: the instrumentality,

at the time of the accident, was in the possession and under the control or management of the plaintiff, Conover v. Delaware, Lackawanna and Western Railroad Co., 92 N.J.L. 602; and the plaintiff did not adduce all of the testimony reasonably within his power, Bahr v. Lombard, Ayres & Co., 53 Id. 233, 239.

For the reasons stated I conclude that the judgment of nonsuit should be affirmed.

But aside from the determination of the specific case now before us, I differ from the suggestion, urgently pressed, that the principle enunciated in Clyne v. Helmes, supra, should be overruled, and I therefore enter upon a more particular study of the applicable legal elements.

So far as is now pertinent the holding in the Clyne case was, first, that a landlord is exempt from liability for injuries sustained by a tenant by reason of the ruinous condition of the demised premises where there is neither contract nor fraud, and that this exemption extended as well to members of the family of the tenant as to those who were on the premises by his consent, and, second, that where there is neither privity of estate nor privity of contract the owner of the premises is not liable for injuries sustained by third persons unless by invitation, express or implied, the owner induces them to come upon the premises.

The Clyne decision was not dictum, either obiter or judicial. It was and is entitled to full force as a court-holding under the doctrine of stare decisis. All of the questions there answered were fairly raised and duly considered and decided, and one holding did not make dicta of the others. The adjudication on the subject of privity was within the issues. A point regularly and expressly decided does not lose its value as a precedent because the disposition might have been rested on some other ground stated in the opinion. O'Brien v. Union Central Life Insurance Co., 100 N.E. Rep. 702; 207 N.Y. 180; Florida Central Railroad Co. v. Schutte, 103 U.S. 118; 26 L. Ed. 327; McFarland v. Bush, 94 Tenn. 538; 29 S.W. Rep. 899; 27 L.R.A. 662; Vandalia Railroad Co. v. Schnull, 122 N.E. Rep. 225; 188 Ind. 87; reversed on other grounds, 255 U.S. 113; 65 L. Ed. 539;

Chicago, B. and Q.R. Co. v. Board of Supervisors (C.C.A.), 31 L.R.A. (N.S.) 1117, 1125; Kiernan v. City of Portland, 57 Or. 454; 111 Pac. Rep. 379; 37 L.R.A. (N.S.) 332, 344; United Railways and Electric Co. v. Mayor, &c., of Baltimore (Md.), 88 A. 617; 15 C.J. 950, tit. "Courts," § 344 (6); 21 C.J.S., tit. "Courts," § 190 (b); 7 R.C.L., tit. "Courts," § 31 (at p. 1005).

"Of course, where there are two grounds, upon either of which the judgment of the trial court can be rested, and the appellate court sustains both, the ruling on neither is obiter, but each is the judgment of the court, and of equal validity with the other." Union Pacific Railroad Co. v. Mason City and F.D.R. Co., 199 U.S. 160; 50 L. Ed. 134.

Our decisions leave no room for doubt that the exemption of a landlord from liability for injuries sustained by a tenant, where there is neither contract nor fraud -- that being a premise upon which is based a like exemption as to the tenant's family and others -- was soundly stated. See the long line of cases beginning with Naumberg v. Young, 44 N.J.L. 331, and Mullen v. Rainear, 45 Id. 520, and extending down to and including Schwartz v. Federal Deposit Insurance Corp., 127 Id. 556, wherein Mr. Justice Bodine, writing the opinion for this court, said: "In this state, the rule has been settled that the landlord is under no common law duty to make repairs to or maintain leased premises in good order." If it is sound law that the landlord is not liable to a tenant for injuries arising from the condition of the premises, unless that condition is a violation of some contractual duty undertaken by the landlord, it seems to follow, necessarily and with greater force, that a landlord is not liable to a member of the tenant's family or to an employee of the tenant or to anyone else on the premises at the instance of the tenant for injuries occasioned by some faulty condition of the building against which the landlord has not contracted. This leaves, as the available remedy, where appropriate, an action on the contract in the usual manner or an action for a tort arising out of a contractual duty. The latter is a well recognized ground for suit, Eberle v. Productive Building and Loan Association, supra; Rich v. New York Central and

H.R.R. Co., 87 N.Y. 382; Emmons v. Alvord (Mass.), 59 N.E. Rep. 126; Addison on Torts (4 th ed.) 17, and, because it goes to a substantial distinction of remedial law, continues notwithstanding the formal changes in procedure prescribed by the Practice Act, Wm. H. Jamouneau Co. v. Wetherill, 98 N.J.L. 80; Ward v. Huff, 94 Id. 81. As I have already said, it was such a suit that the trial court, properly, I think, held the present action to be.

The doctrine stated in Clyne v. Helmes, supra, as applied to claims against landowners, has been restated many times both in the Supreme Court and in the Court of Errors and Appeals. Some of the cases are: Land v. Fitzgerald (Supreme Court), 68 N.J.L. 28; Siggins v. McGill (Court of Errors and Appeals), 72 Id. 263 (liability sustained, however, on the ground, of retained control of the pasageways, and invitation, in multiple tenant building); Hasse v. Gietz (Supreme Court), 108 Id. 252; Liebeck v. Bennis (Supreme Court), 4 N.J. Mis. R. 422; Eberle v. Productive Building and Loan Association (Court of Errors and Appeals), 119 N.J.L. 393; McKernan v. Commonwealth Trust Co. (Supreme Court), 120 Id. 345.

In the Eberle case, decided in 1938, the doctrine was reaffirmed by this court, unanimously, in the very words of the Clyne decision. See also our recent decision in Brittain v. Atlantic Refining Co., 126 N.J.L. 528.

Then, if there is a contract between the owner and the tenant, may one who is not the tenant sue on the theory of a tort arising out of an agreement made between the landlord and the tenant to which agreement this third person was not a party and which was not made for his benefit? Clearly not. Following Clyne v. Helmes, supra, the Supreme Court in Hasse v. Gietz, supra, the this court in Eberle v. Productive Building and Loan Association, supra, specifically so held; and the plaintiff has not, in any manner recognized by the cases, established himself as one for whose benefit the lease agreement was made.

The rule which shuts out an action grounding in a contract unless there is privity of contract is not peculiar to leases of real estate. It is a general rule of law. "The general rule

of law is, that one who is not a party to a contract, cannot sue in respect of a breach of duty arising out of the contract." Marvin Safe Co. v. Ward, 46 N.J.L. 19. "The general rule is entirely well settled that one who is not a party to a contract cannot sue in respect of a duty arising out of the contract, * * * We take it to be quite plain that the rule that no one can sue upon a contract unless he is a party to it cannot be evaded by bringing what is really an action for breach of contract in the form of an action of tort. 15 Encycl. Pl. & Pr. 504. It follows that, in order to maintain an action of tort for breach of a contractual duty, the plaintiff must have the same status under the contract as would entitle him to maintain an action upon contract for a breach of its stipulations." Styles v. Long Co., supra. "A duty, the breach of which is an actionable wrong, may arise from a contract, or be imposed by positive law, independent of contract. In the first case the party to the contract only can sue." Appleby v. State (Court of Errors and Appeals), 45 Id. 161. "Where a duty arises solely out of a contract no one can bring an action for its breach unless he be a party to the contract or one for whose benefit it is made." Tomlinson v. Armour & Co. (Court of Errors and Appeals), 75 Id. 748, 755. "To maintain an action of tort for breach of a contractual duty, the plaintiff must have the same status under the contract as would entitle him to maintain an action upon contract for a breach of its stipulations." Fedor v. Albert (Court of Errors and Appeals, 1933), 110 Id. 493.

It has been further suggested that the holding in Clyne v. Helmes has already been impliedly overruled by our decided cases. I flatly dissent from that view and consider that it is untenable in the light of the verbatim restatement unanimously voted by us in Eberle v. Productive Building and Loan Association and the other decisions cited above. Among the cases cited as contra the continued authority of Clyne v. Helmes is Van Winkle v. American Steam Boiler Co., 52 N.J.L. 240. That case does not come at all within the field of landlord and tenant but it does state two legal principles which have a bearing; one relates to the duty of an owner of property to the public regardless of any agreement, and the

other is that when "any person undertakes the performance of an act which, if not done with care and skill, will be highly dangerous to the persons or lives of one or more persons, known or unknown, the law, ipso facto, imposes as a public duty the obligation to exercise such care and skill." Both of those principles are reflected in our law of landlord and tenant. The first is known there as the principle of retained control, and the second, with no distinguishing name, has nevertheless been recognized and applied since the decision in LaBrasca v. Hinchman, 81 Id. 367. The theory of retained control is simply that in certain instances the landlord, notwithstanding occupancy by tenants, has kept to his own control certain parts of the premises and that as to those parts he carries the liability that an owner, generally, owes to his invitees; and this, not because a rental agreement has placed the burden upon him, but because, either under or independent of the rental agreement, he has retained unto himself certain attributes to which that liability is incidental. As a rule, Barthelmess v. Bergamo, 103 Id. 397, this principle is confined to tenements or apartment houses where two or more tenants use the same facilities, such ...

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