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Altomare v. Cesaro

Decided: October 20, 1961.

ANTOINETTE ALTOMARE AND MATTEO ALTOMARE, PLAINTIFFS-RESPONDENTS,
v.
RALPH CESARO AND ANNA CESARO, DEFENDANTS-APPELLANTS



Goldmann, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

Defendants appeal from the final judgment of the Hudson County Court, Law Division, the result of a jury verdict awarding $10,000 to plaintiff Antoinette Altomare and $1,803.20 to her husband, Matteo Altomare, who sued per quod. The personal injury action instituted by plaintiffs (tenants) against defendants (landlords) was predicated upon the alleged negligence of the landlords in not properly maintaining the apartment they leased to plaintiffs. At the close of plaintiffs' proofs, the trial court denied defendants' motion for an involuntary dismissal; and a motion for "directed verdict" in favor of defendants was likewise denied at the close of the entire case. There are three facets to defendants' argument on appeal: (1) plaintiff's injury was not proximately related to the wrongful act of the defendants; (2) plaintiff was guilty of contributory negligence, as a matter of law; (3) the trial court erred in admitting into evidence the defective light fixture.

Plaintiffs' modest, second floor, three-room apartment was a part of a tenement house, commonly known as 2512 Central Avenue, Union City, New Jersey, which consisted of two

floors with apartments for three families. All of the electrical fixtures in the apartment were operated by means of wall switches except a small fixture in the bathroom, and a two-socket fixture in the living room, installed flush to the middle of the ceiling, which was operated by a pull chain with a string attached. Occupancy of the apartment was assumed by plaintiffs on September 17, 1957, and from the very beginning they experienced difficulty with the living room ceiling light fixture; one small bulb never lit and the other, a large bulb, would only light after the string chain had been pulled several times. On five occasions, according to the testimony, the landlords were notified as to the defective condition of this fixture. Mrs. Altomare first complained to Mr. Cesaro the latter part of September 1957, again three or four weeks thereafter, and on a third occasion about a month later. Plaintiffs' niece Theresa Altomare, another tenant at the same location and a frequent visitor, spoke to Mrs. Cesaro early in May 1958 concerning the trouble her aunt was having with her living room fixture, also on another occasion "a week or a week and a half later," at which time Mrs. Cesaro replied, "Oh, didn't he come yet[?]" On these occasions, assurances were given by defendants that the condition would be remedied. Mr. Cesaro at one time gave as his reason for delay -- "He says he was busy." Defendants denied that these alleged complaints were ever made to them.

On May 22, 1958, about 4 P.M., plaintiff Antoinette Altomare decided to do some sewing in the living room. There was not sufficient light from the two windows as they were covered with venetian blinds and faced a side wall adjoining the premises. A small floor lamp was on the side of the room opposite to where she kept her sewing machine. When she attempted to light the ceiling bulb, she pulled the chain two or three times, as was her custom, and it did not light; she continued an additional three or four times, without success. Assuming the bulb was "dead," Mrs. Altomare decided to replace it. She obtained a step ladder

which, after opening, she observed to be steady, tested it and climbed to about the fourth step, and started to unscrew the bulb with one hand while holding on to the ladder with the other. She testified:

"When I was unscrew the bulb it was a little bit tight. I keep unscrew again. The last turn I heard a noise, then is a big flash come out. I was fright. I went back. Then I grabbed myself by ladder and hit my breast. I got hurt. I fell down on my feet, then I fell back this way."

It should be noted in limine that counsel for the defendants conceded at oral argument that the light fixture and electrical wiring in question were defective at the time of the accident, and that plaintiffs' apartment was an integral part of a tenement house, as contemplated by the New Jersey Tenement House Act, R.S. 55:1-1 et seq. The statute, inter alia , provides: "Every tenement house and all the parts thereof, shall be placed and maintained in good repair * * *." R.S. 55:7-1. This mandate to maintain in good repair is sweeping and relates to "all parts" of a tenement house; it imposes a duty upon a landlord irrespective of any contractual obligation. The act is "deemed to establish a standard of conduct, and to permit the intended beneficiaries to rely upon a negligent failure to meet that standard in a common law action for negligence." Michaels v. Brookchester, Inc. , 26 N.J. 379, 386 (1958).

The gravamen of appellants' contention is that the injuries sustained by Mrs. Altomare were the direct result of her own intervening acts, and that the accident was not the natural and proximate result of the landlords' negligence; that from the proof submitted fair-minded men could not honestly differ as to such a conclusion and, therefore, a jury question was not involved. Reliance is placed upon Glaser v. Hackensack Water Co. , 49 N.J. Super. 591 (App. Div. 1958). The facts there were dissimilar. The injuries suffered by plaintiff in that case were occasioned by her own negligence in descending the stairway so rapidly that she lost her footing

and fell. The proximate cause was not the unannounced opening of the garage, reading of the meter and the closing of the door by the meter reader for the water company. See Powers v. Standard Oil Co. , 98 N.J.L. 730 (Sup. Ct. 1923), affirmed per curiam 98 N.J.L. 893 (E. & A. 1923), and Monaco v. Comfort Bus Line, Inc. , 134 N.J.L. 553, 559 (E. & A. 1946), referred to in the Glaser opinion, for support of the proposition that a trial judge may, under ...


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