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Fischer v. Salomone

New Jersey Supreme Court


Decided: January 8, 1948.

EINAR FISCHER AND DOROTHY FISCHER, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
ALFONSE SALOMONE, TRADING AS PARAMOUNT SHOE REBUILDING AND DRY CLEANERS, DEFENDANT-APPELLANT

On appeal from the First Judicial District Court of the County of Middlesex.

For the appellant, Reid, Kelly & Flaherty (Jacob Levinson, of counsel).

For the respondents, Charles Schwartzman (Morris Spritzer, of counsel).

Before Justices Bodine, Heher and Wachenfeld.

Heher

[136 NJL Page 431]

The opinion of the court was delivered by

HEHER, J. Plaintiffs (husband and wife) were awarded damages by the Judge of the District Court, sitting without a jury, in an action in tort for negligence by defendant in the maintenance of the public sidewalk on its premises No. 467 Main Street, in Metuchen, in consequence of which the wife fell and suffered injuries. Her husband sues per quod.

We find no evidence to sustain the judgment. There was proof only of defects in the concrete pavement resulting from ordinary wear and tear. There was no evidence of a structural deficiency in the sidewalk, or of faulty repair, or of any condition attributable to actionable negligence by defendant. Injury ensuing from defects in a sidewalk due to want of

[136 NJL Page 432]

repair merely is not actionable. A landowner is not answerable for defects in a public sidewalk caused by wear and tear of the elements or public use, and not chargeable to his own wrongful act. And where a duty simply to maintain the sidewalk in a state of repair is laid by statute or local ordinance upon the owner or occupant of premises abutting upon a public street, its non-performance does not give rise to a cause of action in favor of one injured by a defect due to wear and tear. Rupp v. Burgess, 70 N.J.L. 7; McKeown v. King, 99 Id. 251; Braelow v. Klein, 100 Id. 156; Glass v. American Stores Co., Inc., 110 Id. 152; Ford v. Jersey Central Power and Light Co., 111 Id. 112; Savarese v. Fleckenstein, 111 Id. 574; Volke v. Otway, 115 Id. 553; La Freda v. Woodward, 125 Id. 489; Murphy v. Fair Oaks Sanatorium, 127 Id. 255; Zemetra v. Fenchel Realty Co., Inc., 134 Id. 358. The duty thus imposed is public in nature, for breach of which a private action will not lie. The principle is firmly established in our jurisprudence; and the legislature has not deemed it politic to enlarge the liability.

The judgment is accordingly reversed, with costs.

19480108


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