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Notkin v. Brookdale Gardens Inc.

Decided: October 21, 1953.

ESTHER NOTKIN AND LOUIS NOTKIN, PLAINTIFFS-APPELLANTS,
v.
BROOKDALE GARDENS, INC., DEFENDANT-RESPONDENT



Eastwood, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

This is a landlord and tenant, personal injury, negligence action. At the conclusion of the trial the jury returned a verdict in favor of the defendant. Appellants seek a reversal of the consequent judgment, contending that the trial court erred in allowing the introduction of prejudicially incompetent evidence.

At the time in question respondent was the owner of a garden apartment development in Bloomfield, N.J. The development consisted of 20 two-story buildings, each building containing four apartments, two on each floor.

Esther Notkin was a tenant in one of the buildings. One entrance and exit way was provided for use in common by all four tenants. In leaving the building the tenant would go through a door to an exterior platform from which a series of steps led to the sidewalk.

On December 26, 1950 there was a three-inch snowfall in the area. On each succeeding day thereafter, including December 29, the day of the accident, some rain fell. However, according to the weather bureau report, on the day of the accident generally one inch of snow still remained. The evidence discloses also that on December 29 the rain was accompanied by freezing temperatures which produced an icy condition on the walking surfaces in the vicinity.

At about 7:45 A.M. Mrs. Notkin undertook to leave her building. The outside platform and steps were covered with

snow and ice, as they had been the previous day. There was neither salt nor sand on the surface. In stepping onto the first downward step, she slipped and landed on her back, receiving the injuries for which compensation was sought.

It appeared that the landlord had two superintendents in its employ to look after all 20 of these buildings, and in the allocation of work Buckman, one of them, was assigned to the Notkin building. Shortly after this accident, Buckman went to California and respondent's manager testified that his address was unknown. A third person, Bert Pearson, who said he worked under Buckman, was employed also around the place as a laborer. However, he admitted that Buckman did the work on appellants' dwelling, while he, Pearson, was occupied on other buildings.

Undoubtedly because Buckman was not available as a witness, respondent called Pearson and undertook to prove through him the procedure generally followed by the landlord around December 1950 in cleaning the premises after snow storms. At first, the trial court sustained an objection to this proof but later was persuaded to allow it.

The basis for the offer is not entirely clear from the record. Counsel informed the court that he wished to "give information as to the procedure of removing snow during snow storms * * *," although they had "no relevant knowledge of the actual facts" of the accident or any specific information as to "what was done about this particular snow storm." This colloquy took place between court and counsel:

"Are you offering proof of a standard system carried through?

Mr. Blake: The system that they used in that place during that time.

The Court: What precaution was taken covering that period of time?

Mr. Blake: It would be in a general manner, around the ...


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