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Macgregor v. Tinker Realty Co.

Decided: October 6, 1955.

ANN MACGREGOR, PLAINTIFF-APPELLANT,
v.
TINKER REALTY CO., INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT



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

Jayne

In undertaking to determine the existence of a cause of action, knowledge of the basic factual premise is indispensable. Accordingly the accredited circumstances of the present case must be initially recognized.

The plaintiff was a tenant of an apartment building owned and conducted by the defendant at No. 40 Passaic Street in Hackensack. A snowstorm occurred in the vicinity on January 12, 1954 and the snowfall continued until the morning of January 14, 1954, when the defendant's building superintendent excavated a narrow path in the fallen snow on the sidewalk of Passaic Street in front of the apartment premises for the use of the plaintiff, other tenants of the building, and presumably for the convenience of pedestrians in general.

In utilizing the path upon her departure from the building on the morning of January 14, 1954 the plaintiff slipped on an "undercoating of ice" which the superintendent had not eliminated from the bottom surface of his excavation. The plaintiff instituted the present action to recover from the defendant compensatory damages for the injuries and losses she sustained in the mishap.

At the very inception of the trial the prosecution of her alleged cause of action was challenged, for upon the conclusion of her attorney's opening address to the jury a motion was made on behalf of the defendant for an involuntary

dismissal of the plaintiff's action. Upon reflection the trial judge resolved that the motion was meritorious and the action was dismissed. The propriety of the determination of the trial judge is the subject of this appeal.

The introductory statement to the jury of the plaintiff's alleged cause of action was relatively concise. It imparted the facts hereinbefore mentioned and exhibited the theoretical rationale upon which the plaintiff sought to maintain her legal right to a recovery of damages from the defendant.

The following quotations are illustrative:

"Now, the landlord reserved the right to common approaches to this particular house, not only the steps and the front door, but also the sidewalk in front of this, so people would be able to use the sidewalk and use the steps to go into the building.

The defendant owed a duty -- the Tinker Realty Company, the owner of this particular building, a corporation of New Jersey, owed a duty to see that they were maintained properly, and extended an invitation to the plaintiff to use this particular sidewalk in front of the premises to use the facilities of the house. That was part of the reservation and control of the premises of the 28 families in the four story building where the plaintiff lived.

The thesis of the plaintiff is that a landowner in the removal of snow from the adjacent public sidewalk owes a greater or different duty of care to his tenant than that owing to a member of the public. The postulate is that the abutting public sidewalk is a portion of the demised premises over which the landlord in relation to his tenants has retained control, hence an equivalent duty of care to tenants in respect to its condition. Not so. Such a pretended distinction has never to our knowledge been recognized in the law of our State, and we perceive no impelling cause to originate it.

In considering the situation presented to the trial judge in the present case, our attention centers upon the decision in Taggart v. Bouldin , 111 N.J.L. 464 (E. & A. 1933), in which it was held that an owner is under no duty to maintain the sidewalk abutting his land free from the natural accumulation of snow and ice. Nor is he liable, in clearing the sidewalk of snow and ice, unless through his negligence a new element of danger or hazard, other than one caused by natural forces , is added to the ...


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