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Mikrut v. Pellow

Decided: January 3, 1961.

PATRICIA MIKRUT, PLAINTIFF-RESPONDENT,
v.
HERBERT PELLOW, EXECUTOR UNDER THE LAST WILL AND TESTAMENT OF GRACE BECKER, DECEASED, DEFENDANT-APPELLANT



Price, Gaulkin and Foley. The opinion of the court was delivered by Foley, J.A.D.

Foley

Defendant appeals from a judgment of the Law Division entered in favor of plaintiff in a negligence case tried without a jury.

Grace Becker, now deceased, was the owner of a three-story, four-family apartment building in Sussex, New Jersey. The first floor was occupied by a drug store; two apartments were on each of the second and third floors. Defendant admittedly reserved control of the stairway, foyer and front doorway used in common by the second and third-floor tenants. Plaintiff had lived with her daughter and son-in-law in one of the third floor apartments since December 1956. On February 9, 1958 plaintiff, while leaving the premises, grasped the handle of the front door with her right hand and attempted to pull the door open. She pulled

"hard." The door remained stationary but the handle and shank to which it was affixed came loose in her hand, as a result of which plaintiff, off balance, fell backwards, forcibly striking her lower back against the stairway.

There was ample evidence that for a long period of time the door had been extraordinarily hard to open, that numerous complaints of this had been made to the landlord by tenants, and that the landlord had promised to remedy the condition. It appeared also that in September 1957 the landlord hired one Banks to inspect the door. He planed it, but recommended that a new door be installed because it was "weatherbeaten," and "old and sagging." The landlord authorized the installation, but in October Banks suffered a broken leg and, thereafter, was unable to do this work. For a short time after it was planed the door worked a "little easier," but then it was painted and again became as difficult to open as before. Defendant offered no evidence to refute these facts.

The door handle and shank were put in evidence and we have examined the device. The stripping of the threading is so extensive as to present mute evidence of long and continued hard usage. At least, a fact finder could so conclude.

It is, of course, basic that a landowner is called upon only to remedy defects of which he has notice, or which he had an opportunity to discover and to remedy. Schnatterer v. Bamberger & Co. , 81 N.J.L. 558 (E. & A. 1911). Defendant argued at the trial and asserts here that the cause of plaintiff's injury was the sudden and unanticipated failure of the door handle to serve its ordinary purpose, and that the landlord had no prior notice of any defect therein, nor was the ruinous condition of the shank discoverable upon reasonable inspection, and so the defendant was entitled to a dismissal as a matter of law.

Conceding that the landlord had notice of the stubbornly sticky door, defendant nevertheless contends that such notice was immaterial since it was a "latent" defect in the

handle, not discoverable upon reasonable inspection, which caused plaintiff's injuries. While the trial court did not base its factual determination upon a finding that the duty of the landlord to reasonably inspect his premises embraced inspection of the interior of the handle, we pause to observe that what a landlord is required to do in the discharge of such duty cannot be defined by arbitrary rule. He is required to do whatever is reasonable under circumstances known to him, or of which he is chargeable with knowledge. It is commonly known that the stress placed upon a door handle is proportionate to the degree of force which is required to pull the door open. We think that a trier of facts, while not compelled to do so, could legitimately infer that where, as here, a landlord knows that the condition of a door is such that the handle is subjected to excessive strain every time the door is pulled open, he is called upon to inspect the interior of the handle to ascertain what effect, if any, the prolonged and unusual stress has had on the opening device, an obligation which obviously would not devolve upon him if the door could be opened by normal physical effort.

But this aside, we think the basic fallacy of defendant's approach lies in the insistence that the defective condition of the door handle, and the defective condition of the door itself, should be regarded as separate and unrelated conditions each requiring notice thereof, actual or implied, as a prerequisite to defendant's liability with respect to the specific defect on which the claim was based. This restriction upon the burden cast on the landlord as a result of the complaints which were made to him we deem to be arbitrary and unwarranted. The landlord was required to exercise reasonable care to so maintain the door which he had provided for his tenants that it could be safely opened by them in ordinary use. ...


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