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Hartye v. Grand Properties Inc.

Decided: July 18, 1962.

WALTER HARTYE, PLAINTIFF,
v.
GRAND PROPERTIES, INC., A CORPORATION, AND MAYBURN KNITTING MILLS CORP., A CORPORATION, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS



Furman, J.s.c.

Furman

The defendant Grand Properties, Inc. made a motion for judgment of dismissal at the close of the entire case. Pursuant to R.R. 4:51-2, the court reserved decision on the motion and is now deciding the motion after submission of the case to the jury and a jury verdict in favor of the plaintiff. On a motion for judgment of dismissal at the close of the entire case the plaintiff's evidence must be viewed in its most favorable light and all inferences favorable to him must be drawn.

This was a sidewalk negligence action. Plaintiff's proof supported the findings here set forth. He stumbled and fell over a hole about four or five inches long and one or two inches deep at an expansion joint in the concrete sidewalk abutting the premises of the defendant on 8th Street between Clinton and Grand Streets in Hoboken, on December 4, 1960. He sustained a fracture of his left arm. The sidewalk had been constructed by Continental Baking Co., a predecessor in title to the defendant, sometime in 1945. The middle longitudinal strip where the hole occurred was negligently constructed, not in conformity with prevailing industry standards in 1945, for one or more of the following reasons: (1) the concrete was improperly proportioned; (2) the concrete was improperly mixed by hand or machine; (3) the concrete was improperly laid with a segregation of the cement mortar and coarse aggregates; (4) the concrete was improperly finished because of too much trowel work causing scaling. As a result of negligent or faulty construction the middle longitudinal

strip was less durable under the force of elements and pedestrian wear and tear and developed this hole in 15 years. A properly constructed sidewalk would have withstood the force of elements and pedestrian wear and tear for approximately 40 years.

No evidence was introduced as to the deterioration of the middle longitudinal strip prior to the plaintiff's fall. Officers of the defendant corporation testified that the sidewalk was in good condition according to their visual inspection upon their acquisition of the property, including the sidewalk, in 1956 and on recurrent visits up to December 4, 1960. Plaintiff's expert, a licensed professional engineer specializing in civil engineering, testified on cross-examination that a layman or nonexpert in this field would have found it impossible to tell on December 4, 1960 if the hole described by the plaintiff and by another witness and shown on photographs admitted in evidence was the result of faulty construction or of the force of elements and of pedestrian wear and tear.

The jury was charged that the elements of the plaintiff's cause of action were negligent construction by a predecessor in title of the defendant, proximately causing an injury sustained by the plaintiff. From all the evidence the jury apparently determined that Continental Baking Co. was the prior owner and grantor of the premises (including the sidewalk) to the defendant, Grand Properties, Inc.; that a new sidewalk was constructed by an independent contractor at the direction and in behalf of Continental Baking Co. in 1945; that this sidewalk was negligently constructed, resulting in its deterioration and breaking open of a hole many years before the force of the elements and pedestrian wear and tear would have caused such defect, and that plaintiff stumbled, fell and sustained an injury as a proximate result.

Review of the authorities in this State and elsewhere convinces me that the jury was not instructed as to all the elements of the plaintiff's cause of action. The rule of law should be that the owner of real property has a duty toward

passers-by on a sidewalk abutting his premises to make it reasonably safe for normal pedestrian use, if the abutting owner is aware of or in the exercise of reasonable diligence should discover that it has defects because of negligent construction by a predecessor in title. As part of the plaintiff's cause of action he had to establish that defendant Grand Properties, Inc. knew or should have known that the abutting sidewalk was negligently constructed, resulting in hazards to its safe use by pedestrians.

The owner of real property is not liable to passers-by for failure to maintain his sidewalk in a safe condition, Moskowitz v. Herman , 16 N.J. 223 (1954). He is not responsible for deterioration or defects resulting from the force of elements or wear and tear by pedestrians, Murphy v. Fair Oaks Sanatorium , 127 N.J.L. 255 (E. & A. 1941), or the negligence of third parties, Orlik v. De Almeida , 45 N.J. Super. 403 (App. Div. 1957). He is responsible only for affirmative wrongdoing: negligent construction, negligent repairs or negligent use by himself or a predecessor in title. The legal issue here is whether the law of this State imposes an obligation for negligent construction or repairs by a predecessor in title where an abutting owner with ordinary knowledge is unable to determine that such negligence was the cause of the deterioration of his sidewalk and not, as an equal or stronger hypothesis, the force of the elements and pedestrian wear and tear. The court concludes that there is no such obligation.

The general proposition that the owner of real property is liable for negligent construction or repairs to an abutting sidewalk by a predecessor in title has been stated in numerous cases. Hayden v. Curley , 34 N.J. 420 (1961); Moskowitz v. Herman, supra; Schwartz v. Howard Savings Institution , 117 N.J.L. 180 (E. & A. 1936). No decision has been found, however, imposing liability on a successor grantee where the defect was not ...


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