Gaulkin, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
On December 4, 1960 plaintiff, while walking on a public sidewalk abutting premises owned by defendant Grand Properties Inc. (Grand), and occupied by its tenant, Mayburn Knitting Mills Corp. (Mayburn), stepped into a hole in the sidewalk, fell, and sustained personal injuries. As a result he brought this action against Grand and Mayburn alleging that his injuries were "proximately caused by the negligence of the defendants or either of them, * * * and by reason of the creation or adoption and maintenance of a nuisance by the defendants or either of them, and by reason of the defective and substandard condition of the sidewalk * * * all of which the defendants, or either of them, knew or should have known presented an unreasonable risk of harm to the plaintiff."
The case was tried in the Law Division with a jury. At the conclusion of the evidence the trial court granted Mayburn's motion for an involuntary dismissal and reserved decision on a similar motion made in behalf of Grand, pending Grand's motion for judgment n.o.v. under R.R. 4:51-2 in the event of a verdict adverse to it. The jury awarded damages to the plaintiff, whereupon Grand moved for judgment n.o.v. The motion was granted. Plaintiff now appeals from the judgments entered in favor of each of the defendants.
Grand acquired the premises, a factory building, surrounded on all four sides by a public sidewalk, from the Continental Baking Company (Continental) on December 20,
1956. Mayburn leased the entire premises from Grand as of February 1, 1957, and thereafter was continuously in possession of it. The sidewalk in question, consisting of three longitudinal strips of concrete, was installed in 1945 during Continental's ownership. Mayburn at no time made any repairs to the sidewalk. Grand did effectuate one or more repairs to the walk, but at a location or locations different from the situs at which plaintiff fell.
The condition which caused the accident was described as a hole in the middle longitudinal section, approximately four to five inches long and one to two inches deep. It appears to have progressed to that size over a period of "perhaps six months to a year."
It was the opinion of plaintiff's expert, Henry E. Kruse, a civil engineer, that the hole evidenced a lack of durability attributable to improprieties in the original construction which will be more fully discussed hereinafter. The expert conceded that the "defect in construction" was not such as could be determined by a layman on visual inspection. The president of Grand deposed that at the time the property was purchased in 1956 he had made an inspection of the sidewalk and found it to be in good condition.
The law of this State is well settled that where a sidewalk does not conform with the proper standards of construction at the time of installation, and a nuisance is thereby created, subsequent owners are deemed to have adopted such nuisance and become legally liable for its maintenance. Schwartz v. Howard Savings Institution , 117 N.J.L. 180, 183 (E. & A. 1936). However, the owner is not responsible for defects caused by the action of the elements or by wear and tear incident to public use and not related to his own wrongful neglect. Moskowitz v. Herman , 16 N.J. 223, 225 (1954).
In those cases in which an owner has been held liable for adopting and maintaining a nuisance created by a predecessor in title, the condition has been one which has been readily ascertainable upon ordinary inspection. Typical of these are
Braelow v. Klein , 100 N.J.L. 156 (E. & A. 1924), where the sidewalk in question was constructed three inches above the level of the adjoining sidewalk, and Gainfort v. 229 Raritan Avenue Corp. , 127 N.J.L. 409 (Sup. Ct. 1941), where the sidewalk was in an area where a gasoline pump had been removed and the walk covering the excavation had sunk one and one-half to two inches below the adjoining sidewalk level. And see also Lambe v. Reardon , 69 N.J. Super. 57 (App. Div. 1961), certification denied 36 N.J. 138 (1961).
Our courts appear not to have directly come to grips with the problem of the liability of a subsequent owner for the faulty construction by a predecessor in title when the owner is unaware that a hazardous sidewalk condition which first becomes apparent during his ownership is due to a structural defect. In Gainford v. 229 Raritan Avenue Corp., supra , the court drew attention to this question but found that it had no occasion to decide it. This court took the same course in Orlik v. DeAlmeida , 45 N.J. Super. 403, ...