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Sarnicandro v. Lake Developers Inc.

Decided: May 11, 1959.

SAVERIA SARNICANDRO AND DOMINICK SARNICANDRO, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
LAKE DEVELOPERS, INC., A CORPORATION, ETC., DEFENDANT-RESPONDENT, AND PATRICK FERRANTE, ET AL., DEFENDANTS



Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[55 NJSuper Page 477] Saveria Sarnicandro sued for injuries suffered when she fell on the outside steps leading to the basement of the Ferrante house. She named as defendants the builder, Lake Developers, Inc. (Lake), and the owners and occupants, the Ferrantes. Her husband sued per quod. The action was grounded in negligence; the complaint charges Lake with improper construction of the

steps and the Ferrantes with negligent maintenance of the premises. The County Court granted summary judgment dismissing the complaint against Lake, and plaintiffs appeal.

Sometime prior to November 1955 the Ferrantes contracted with Lake to purchase the house in question. Lake completed construction late in 1955. The Ferrantes moved into their new home November 13, 1955, and thereafter took title from Lake on March 27, 1956. Plaintiffs are Mrs. Ferrante's parents. On May 3, 1957 the Ferrantes leased a portion of the premises to them, including the use of the bathroom, kitchen, living room, basement, and the outside concrete stairs leading to the basement.

A week or two after moving into the house the Ferrantes discovered that "there were some slight differences in the measurements of the treads and risers" of the outside cellar stairs -- specifically, the fourth and fifth steps were narrower than the others. They claim they spoke to the builder about it and Lake promised to remedy the condition. It did not do so. On March 1, 1958, more than two years later, Mrs. Sarnicandro fell while going down the cellar steps.

In entering summary judgment in Lake's favor the trial judge expressly determined that "there being no just reason for delay, the within order is final." The parties have obviously considered this provision as sufficient to make the appeal non-interlocutory under R.R. 4:55-2. We will not consider whether the order was, actually, interlocutory and therefore required leave to appeal pursuant to R.R. 2:2-3(a). The question, were we to discuss it, would involve distinguishing between cases of multiple claims and those involving multiple parties. See the discussion of Federal Rules of Civil Procedure, rule 54(b), 28 U.S.C.A. , of which R.R. 4:55-2 is the counterpart, in 6 Moore, Federal Practice (2 d ed. 1948), § 54.34, pp. 240 et seq.; cf. West Side Trust Co. v. Gascoigne , 39 N.J. Super. 467, 469-470 (App. Div. 1956), and cases there cited. The trial judge having certified the summary judgment as final, the parties not having argued or considered the possibility

of a procedural bar to the taking of the appeal, and the interest of Lake being in fact quite distinct from that of the Ferrantes, we proceed directly to the merits.

For the purposes of this appeal (as was the case when Lake moved for summary judgment) we have this factual picture: Lake built the house in 1955; the cellar steps were improperly constructed; the Ferrantes took possession in late 1955, and discovered the faulty construction two weeks later; they requested Lake to correct the condition, and it failed to do so; the Ferrantes took title early in 1956; at first they occupied the entire house, but later rented part of it to plaintiffs; the steps at the time of the accident two years later were under the control and in the possession of the Ferrantes.

The general rule is that, once the vendee has taken possession, the vendor of real estate is not subject to liability for bodily harm caused to the vendee or others while upon the premises by any dangerous condition, whether natural or artificial, which existed at the time the vendee took possession. 2 Restatement, Torts , § 352, p. 961 (1934); 2 Harper and James, Law of Torts , § 27.18, p. 1518 (1956); Prosser, Torts (2 d ed. 1955), § 79, p. 462; Annotation , 8 A.L.R. 2 d 218, 220 (1949); 65 C.J.S., Negligence , § 93, p. 607 (1950). None of these authorities appears to find different legal consequences following upon whether the vendor himself created the dangerous condition or, as in the case of failure to repair, merely suffered it to exist. However, Harper and James criticize the rule in its application to third persons who enter on the land after title and possession have passed to the vendee, in a case where the vendor negligently created the dangerous situation and then transferred the property in that condition. They find it difficult to see "why on principle the vendor's liability to third persons should not depend on the likelihood of harm to them," although they admit that this would turn, at least in part, on the likelihood that the vendee would in fact admit such third persons onto the property without

discovering the danger and remedying it, or warning of its existence. Criticisms like that just mentioned are based mainly on the contention that there is no logical distinction between the position of a vendor of real property and that of a manufacturer and seller of goods. The argument proceeds that since a manufacturer is liable to a third person for injuries he reasonably could have foreseen would result from his negligence, O'Donnell v. Asplundh Tree Expert Co. , 13 N.J. 319 (1953), one who creates a dangerous condition on real property and then sells the premises should be liable to the same extent.

Whatever measure of logic there may be in support of the argument so made, the cases have consistently refused to hold a vendor of real estate liable to a third party for injuries suffered by reason of a dangerous condition of the premises created while the vendor still owned and was in possession of it. Attempts to establish such a liability by analogy to landlord and tenant cases have uniformly been rejected. The relations of vendor-vendee and landlord-tenant arise out of totally different types of transactions and contemplate entirely different types of possession. In an absolute sale, the vendor divests himself of title and all right of possession or of reentry for repairs or for any other purpose. The landlord retains his reversionary interest in the premises, and is a present owner with a right to enter upon his property for the making of repairs. See McQuillan v. Clark Thread Co. , 12 N.J. Misc. 409, 410 (Sup. Ct. 1934); Annotation , 8 A.L.R. 2 d , above, at page 220; Combow v. Kansas City Ground Investment Co. , 358 Mo. 934, 218 S.W. 2 d 539, 8 A.L.R. 2 d 213 (Sup. Ct. 1949); Smith v. Tucker , 151 Tenn. 347, 270 S.W. 66, 41 A.L.R. 830 (Sup. Ct. 1925). The courts have also refused to ...


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