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Tomsky v. Kaczka

Decided: January 3, 1952.

MARIE TOMSKY AND WALTER TOMSKY, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
MARY KACZKA AND JOHN KACZKA, DEFENDANTS-APPELLANTS



Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

At a trial before the Hudson County Court, Law Division, the jury returned a verdict in favor of the plaintiff, Marie Tomsky, for $1,000, for personal injuries allegedly sustained in a fall on premises owned by the defendants, and in the sum of $500 to Walter Tomsky per quod. The defendants appeal from the ensuing judgment.

Approximately two weeks before the accident, Mrs. Kaczka telephoned Mrs. Tomsky, who was secretary of the Polish Insurance Lodge, requesting that she call at the Kaczka residence to collect the insurance premium. On December 13, 1949, Mrs. Tomsky went to a store near Mrs. Kaczka's residence and inquired of defendants' son as to the whereabouts of his mother. He told her that his mother was in the cellar washing clothes. Mrs. Tomsky proceeded to the front porch of the Kaczka residence where there were three doorways;

the left door led to the first floor tenant's apartment, the center door led to the cellar and the right door led to the Kaczka apartment on the second floor. Mrs. Tomsky observed that the door to the cellar was open and "the cellar was lit up." Without announcing her presence or requesting admittance, she entered upon the stairway leading to the cellar, when allegedly her "left shoe caught on a crack on the landing," precipitating her to the cellar. Plaintiff testified that she knew that defendants lived in the second-floor apartment and that she entered the cellar stairway unannounced, knowing that it did not lead to defendants' apartment.

There is no substantial dispute as to the factual situation, but rather the issue is addressed to the legal implications deducible therefrom.

Defendants' asserted grounds for reversal are: (1) that the plaintiffs' proofs fail to establish that the defendants had actual or constructive notice of the defective condition of the premises; (2) that there was no proof upon which the jury could have reasonably found that Mrs. Kaczka was an invitee, and (3) that the trial court erroneously denied their motion for a dismissal of the action.

We fail to find any evidence that the alleged defect in the landing of the stairs was known to the defendants or that it existed for a sufficient length of time that they ought to have acquired notice of it. The one witness produced by plaintiffs, Joseph J. Daly, testified that he observed no defect in the staircase prior to the incident of December 13, 1949, and Mrs. Tomsky failed to observe any defect prior to the incident in question. Plaintiffs argue that certain conditions of disrepair and deterioration take considerable time to develop and that the existence of the condition itself was sufficient to lend an inference that it existed for an adequate time to constitute notice to defendants. We have searched the record and fail to find proofs establishing that the alleged defective condition was the result of deterioration, arising out of decomposition, decay or some such time consuming

destruction, but find that at best, the proofs indicate a cracking, splintering, chipping, or physical displacement that might well have been the result of a sudden force immediately prior to Mrs. Tomsky's fall or concurrent therewith.

Mr. Justice Vredenburgh, in the case of Schnatterer v. Bamberger & Co. , 81 N.J.L. 558 (E. & A. 1911), speaking for the court relative to conditions of stairs alleged to have been the result of long wear, said at p. 560:

"* * * Doubtlessly, the shoes upon the feet of countless numbers of persons were continually subjecting the brass nosing to wear and tear, and, of necessity at some time during such wear, a weakening of its fastenings to the step would occur before they became loosened. In the present instance, for aught that appears to the contrary, it may readily have happened that the act of the plaintiff in placing her weight upon the metal nosing was the first force to produce this loosened condition; but if not, the accident is no proof that the nosing piece had been in the condition testified to at a period so long before the accident as to charge the defendant with notice of it. There is nothing in the evidence to justify the inference that the company had, at any time before the accident, either knowledge or notice of such defect."

Similarly, in the matter sub judice , for aught that appears in the evidence, the crack in the landing of the staircase may have been occasioned by an incident immediately previous to the entrance of the plaintiff or by the act of her treading thereon ...


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