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Avedisian v. Admiral Realty Corp.

Decided: September 27, 1960.


Conford, Foley and Kilkenny. The opinion of the court was delivered by Conford, J.A.D.


[63 NJSuper Page 130] This is an appeal from an involuntary dismissal on plaintiffs' opening in a negligence case. The action is based on the defendant landowner's asserted negligence in maintaining its real property, resulting in a fire at night, and causing evacuation of the nearby building wherein plaintiffs resided, in the course of which the female plaintiff tripped over a fire hose laid on the ground to combat the fire and sustained personal injuries. The dismissal was grounded upon the absence of proximate cause, the laying of the fire hose being regarded as an "intervening cause"

breaking the chain of causation between negligence of the defendant, if any, and the plaintiff's injuries.

In summarizing the factual statement made by plaintiffs' counsel in his opening we amplify it in respect to the physical relationship between the two parcels of realty involved and a nearby firehouse, as indicated by a stipulated sketch furnished this court after argument. Mrs. Avedisian resided at 4614 Park Avenue, Weehawken, a north-south street, the building being on the east side of the street facing west. The house is some 30 feet southerly of the intersection of the easterly side line of Park Avenue and the southerly side line of 47th Street, an east-west thoroughfare. The property of the defendant, 51 - 47th Street, lies on the south side of 47th Street, facing north, and situate about 125 feet from the intersection of 47th Street with Park Avenue. In a general way, therefore, the rear of the plot at 4614 Park Avenue abuts the side rear line of the plot on which defendant's building is situated. A local firehouse stands on a plot on Park Avenue adjoining 4614 Park Avenue on the south, with an open space between the buildings.

At about 4:30 A.M. on December 26, 1957, Mrs. Avedisian, her husband, mother and small children were awakened by noise and the light of flames emanating from defendant's building. A policeman pounded at their door and ordered them out of the house. After leaving the house, and while on her way to the firehouse next door for shelter (the pretrial order indicated the night was cold and rainy), Mrs. Avedisian tripped over the fire hose which was lying, as counsel now represents to us, on the sidewalk between her building and the firehouse and extended therefrom along the space between the two buildings in the direction of the west side of defendant's burning building. (A misstatement in the complaint that the plaintiff tripped over a hose lying in front of defendant's premises was corrected in the pretrial order.)

In dismissing the plaintiffs' case the trial judge made the observation that an appeal might help to cast more light on

the question of "foreseeability." He said, "I don't think foreseeability can be ad infinitum." The court apparently felt that to impose upon the defendant landowner foresight of such an injury as befell this plaintiff consequent upon negligence in the maintenance of his property was beyond a reasonable application of the law. Cf. Glaser v. Hackensack Water Co. , 49 N.J. Super. 591 (App. Div. 1958).

We are unable to agree with the trial court in its reaction to the specific problem here involved. The relationship of the factor of foreseeability to the application of the rule of proximate cause is a subject concededly ridden with theoretical divergencies and has been discussed extensively in our recent cases and legal writing. In addition to the extensive collation of cases on proximate cause discussed in Glaser v. Hackensack Water Co., supra , and in the authorities quoted in some of those cases, see Rappaport v. Nichols , 31 N.J. 188, 203, 204 (1959); Genovay v. Fox , 50 N.J. Super. 538, 562 (App. Div. 1958), reversed on another point, 29 N.J. 436 (1959); Andreoli v. Natural Gas Co. , 57 N.J. Super. 356, 366-368 (App. Div. 1959).

By the favored present-day approach the question as to the foreseeability of such a contingency as the particular plaintiff's damage as a consequence of lack of due care by a defendant in relation to a specified hazard is in the area of admeasurement of scope of duty rather than that of proximate cause. Mitchell v. Friedman , 11 N.J. Super. 344, 347, 348 (App. Div. 1951); Genovay v. Fox, ubi. cit., supra; 2 Harper and James, Law of Torts , § 20.5 (1956); Prosser, Law of Torts (1955), § 48, p. 258; and see Martin v. Bengue, Inc. , 25 N.J. 359, 374 (1957).

So, here, the first real question posed is whether the duty of a landowner to maintain his property with reasonable care against the hazard of fire, see Menth v. Breeze Corporation, Inc. , 4 N.J. 428, 439, 440 (1950), extends to occupants of a nearby dwelling forced to evacuate because of a fire on defendant's property attributable to his negligence. Clearly, in our view, this question should be answered

in the affirmative, the foreseeability of such forced evacuation of occupants of a neighboring property menaced by the fire being obvious. The next question, still couched in terms of the range or scope of duty, is whether such defendant's duty extends to the secondary hazard of a night-time injury to such an evacuee by accidental encounter with a mechanism being deployed by the municipal fire-fighting agencies to extinguish the fire. We are clear that it was for the jury to decide that question in the precise factual situation here presented, and this whether, as we ...

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