On certification from the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Weintraub. For reversal -- Justice Heher. The opinion of the court was delivered by Vanderbilt, C.J. Heher, J. (dissenting). Weintraub, J., concurring in result.
This appeal focuses our attention on the rule of liability where a landlord voluntarily undertakes to correct a defective condition in leased premises. There were other questions raised by the case, but they were abandoned on the appeal to the Appellate Division of the Superior Court; see 42 N.J. Super. 110, 116, 117. Upon the affirmance of the final judgment of involuntary dismissal in favor of the defendant in the Appellate Division, the plaintiffs petitioned the Supreme Court for certification pursuant to R.R. 1:10-2, asserting as the reasons for the granting of such relief that the Appellate Division had restricted the rule as to a landlord's liability beyond any judicial decisions in New Jersey and had, in light of the decisional law in this State, erred in holding that hurricanes were an extraordinary act of nature, not reasonably to be guarded against in the correction of the defect gratuitously undertaken. We granted the petition for certification, 23 N.J. 58 (December 10, 1956).
The factual details are fully set forth in the opinion below in 42 N.J. Super. 110; we sketch them only briefly.
The defendant is the owner of five stores at 141-149 Cedar Lane, Teaneck, N.J. Each store has a separate basement constructed of cinder cement blocks. In September 1950 the plaintiffs became tenants of the store at No. 147 Cedar Lane and conducted a medical supply business there. They had trouble with water in the basement from the beginning of their occupancy and consequently stored the merchandise which they kept in the basement on platforms raised about seven inches from the floor. After they had endured this condition for about a year the landlord
voluntarily undertook to alleviate it and had one basement wall and part of another painted with a waterproofing compound, but the flooding continued.
In May 1952 the plaintiffs entered into a new lease with the defendant covering premises No. 147 and the adjoining store at No. 145 Cedar Lane. In this lease the landlord agreed "to waterproof the basement of 145 Cedar Lane." This was done in July of 1952 with the same waterproofing compound used in the basement of No. 147. It was conceded on the oral argument below that the landlord had fully discharged the obligation imposed upon it by the agreement to "waterproof the basement of 145 Cedar Lane." The flooding continued, but never to such an extent that it rose above the height of the platforms upon which the plaintiffs' goods were stored until the hurricanes of September 11, 1954 and August 13, 1955.
Before those events, however, the landlord paid the cost of installation of one or two sump pumps in the basements of the stores adjoining the plaintiffs' stores on the east and on the west. It was from these directions that most of the water came during the worst flooding that had occurred prior to the hurricanes. The landlord then paved the area to the rear of the stores, but the flooding still continued.
The landlord voluntarily undertook to obtain estimates from waterproofing contractors to alleviate the condition but before the estimates were received the hurricane of September 1954 struck with all its fury causing a flooding of the macadam parking area. The water this time flowed down the vents and areaways to the cellars of the stores east and west of the plaintiffs' stores, seeped through the dividing walls and built up to a depth of three feet in the plaintiffs' basements and damaged their goods.
After that storm the landlord had a trough constructed at the rear of its five stores to intercept the water that might be inclined to flow into the basements through the vents and areaways and installed another sump pump in plaintiffs' store No. 147 to pump that water away.
On August 12, 1955 the plaintiffs, upon learning of the threat of another hurricane, took only "the same precautionary measures" as they had in the past, namely, kept their merchandise on seven-inch platforms, but water entered the same way as before.
The plaintiffs brought suit against the landlord for the damages suffered in the flooding during the two storms alleging in their complaint, as amended, four counts relating to each incident. The trial court dismissed the first and fifth counts at the end of the plaintiffs' case. At the end of the entire case the trial court took the case from the jury and granted an involuntary dismissal in favor of the defendant. On appeal all counts were abandoned with the exception of the fourth and eighth counts which alleged a negligent performance of a voluntary undertaking by the landlord at the request of the plaintiffs to correct a defective condition which causes their basements to be flooded with water.
The Appellate Division of the Superior Court affirmed the dismissal, but for different reasons than those assigned by the trial court for its action. It held that there could be no recovery by the plaintiffs because the landlord had not made the basements more dangerous for use nor had it assured the plaintiffs that further flooding would not occur and that the plaintiffs had not in fact relied on any such assurance and because there was no causal or proximate relationship between any alleged negligence on the part of the landlord and the particular damages suffered by the plaintiff.
Our consideration is limited to whether or not there was a proper dismissal of the two counts alleging liability for damage resulting from the negligent performance of a voluntary act.
The plaintiffs contend that the landlord is liable for the damage suffered by them without regard to whether the "negligence has made the premises more dangerous for use." They say that the common-law rule followed in this State makes a landlord unqualifiedly liable for damages if
the work he voluntarily undertakes to perform on the leased premises is negligently done and results in injury; they say the "more dangerous for use" doctrine set forth in 2 Restatement of the Law of Torts, Negligence (1934), sec. 362, p. 982, has never been adopted and followed in New Jersey. To meet the reasoning of the Appellate Division the plaintiffs urge that in the making of repairs under the conditions here "There is an implied assurance * * * that they will be and were properly done, and that the previous defective condition will be and was remedied." They also urge the landlord is not excused from liability here where its negligence joined with an act of God produces the injury. The plaintiffs' final assertion is that the landlord is also not excused from answerability for the negligent performance of the repairs even though the particular consequences were not foreseen.
The defendant applauds the salutary nature of the Restatement rule. It asserts that the plaintiffs have not charged the landlord with negligence in the work which was actually performed but merely complain that the landlord did not do enough and, since there is no liability on the landlord's part for nonfeasance, it cannot be held liable here for not doing enough. In addition to seeking to uphold the determination of absence of proximate cause in the Appellate Division, the defendant affirmatively argues that since it hired independent contractors to do the work and let it to the exclusive supervision and control of such contractors it was absolved from any liability.
The arguments advanced by the plaintiffs generally assume the existence of negligence on the part of the defendant. We, therefore, consider that crucial question because in the absence of any negligence on the part of the landlord it does not matter whether the hurricanes were an extraordinary act of nature, or whether they were an efficient concurring cause of the damage to the goods of the plaintiffs, or whether there was a proximate causal relationship between the ...