Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D. Kolovsky, J.A.D. (dissenting).
Plaintiff Margaret Foley fell on an icy sidewalk in front of defendants' property. In an action to recover for her injuries she claimed that defendants, in clearing the snow from the sidewalk, shoveled it in mounds on both sides of the sidewalk. When the snow melted, some of the water collected in a depression in the sidewalk. Plaintiff slipped and fell on the ice where the water froze.
The jury returned a verdict in plaintiff's favor. On this appeal defendants urge the trial court erred in denying their motion for involuntary dismissal at the conclusion of plaintiff's case and their motion for vacation of the judgment. They also assert error in the trial court's instructions to the jury.
Defendants insist that there was no proof that the property owners were responsible for the addition of a new element
of danger to the use of the sidewalk and that, even if the property owners negligently cleared the sidewalk, they are not liable because there was no new hazard other than that caused by natural forces.
Plaintiff testified that on December 26, 1965, shortly after 6 P.M., she was on her way home from work, got off a bus and walked along the Crawford Terrace sidewalk. It was already dark and the street lights were on. The weather was clear, although it had snowed on December 23 and 24. About seven inches of snow had fallen and was on the ground on December 24, according to official measurements made at Newark and Elizabeth.
Plaintiff was wearing low-heeled shoes with galoshes over them. Most of the sidewalks in the area had been shoveled and people had placed rock salt or sand and, in some cases, ashes on them. As she approached the sidewalk in front of the Ulrich property, she could see that the walk had been shoveled after the storm and that the snow had been heaped on each side.
The first knowledge plaintiff had of any ice on the sidewalk was after she fell. Just past the front steps to the Ulrich house, she started to fall forward, slipped about three feet or more, turning around on her right arm. She then saw "a complete sheet of ice, clear ice, frozen water * * *. It was just clear. You couldn't see it." Her right arm snapped Later it developed she had sustained a transverse fracture of the upper arm requiring an open reduction and the insertion of a steel pin the length of the humerus.
She was unable to see the ice as she approached. When asked what prevented her from seeing it, she said:
"It looked like the rest of the sidewalk. It was water that had melted -- I mean the snow that had melted and frozen over solid. You couldn't see that ice."
Describing the width of the iced area, she said, "It went from snow to snow." The ice "began in front of the front steps and went down towards Carlyle Place" for a length of
"about five feet." The flagstones in front of the Ulrich property were "crooked and slanted."
Miss Foley managed to make her way to defendants' door where she informed them of the fall. Mr. Ulrich proceeded to the icy portion which he described in his deposition of having "a minimum of say three and a half, four feet in length across the approach to our house." He said, "* * * there was an irregularity in the sidewalk, a mismatching of the seam. * * * I do know that a large area of the block was covered with water -- with ice."
He conceded that, after his wife had shoveled the snow from the sidewalk, some snow had melted and flowed down on the sidewalk area, and that this water had frozen on the sidewalk. Describing his previous experience as to the water flowing on the sidewalk, he said:
"Some days there would be no drainage onto the sidewalk at all. In [ sic ] other days, of course, there would be and it would be necessary to keep the salt on because the ice would form over a large area."
In the general area in front of defendants' premises the grade was downhill. Mr. Ulrich acknowledged also that, in the ordinary course of events, any water that flowed onto the sidewalk would flow down the grade, except to the extent that these irregularities in the sidewalk caused some to be blocked, caught and frozen. One of the depressions, he said, could have a maximum depth of an inch.
On defendants' case, Mrs. Ulrich was the sole witness. She averred that her husband had originally shoveled the sidewalk on December 23 and 24. At about 3 P.M. on December 26, she saw some snow had been blown on the sidewalk and she went out to shovel it. She claimed she placed salt on its entire length in front of her property and there was no ice left on the sidewalk when she completed the shoveling. She admitted that her reason for placing salt on the concrete was: "Sometimes ice forms and I wanted to prevent this."
Although she denied being aware of any depression in the sidewalk, she admitted knowing the sidewalk was uneven. She had also observed salt particles did remain in one particular spot near the block in front of the walk leading to her house.
The general principles are clear. Under common law an owner has no duty to keep the sidewalk abutting his land free from the natural accumulation of snow and ice. This general rule was restated in Saco v. Hall, 1 N.J. 377 (1949). Likewise, under common law an abutting owner is not responsible for defects in the sidewalk caused by the action of the elements or by wear and tear incident to public use. Nor is he liable, under ordinary circumstances, for injuries suffered by a pedestrian on a defective or dilapidated sidewalk. See Moskowitz v. Herman, 16 N.J. 223 (1954), where Justice Jacobs' dissenting opinion suggests that the time may be ripe for a re-examination of this doctrine.
To these general principles certain well-recognized exceptions have been established. As in all other cases, the general inquiry common to all tort law must be made whether, under the circumstances, the defendant's conduct created an unreasonable risk of harm to the injured party and whether defendant violated any duty to the injured pedestrian.
Our Supreme Court has expressed itself clearly in relatively recent cases involving icy sidewalks. In Gellenthin v. J. & D. Inc., 38 N.J. 341 (1962), it stated that there is no longer any special "surface water law," but rather the liability for the various harms which a landowner might cause to others by disposition of surface water is to be governed by applicable tort principles.
Gellenthin held that if a landowner constructs or maintains artificial conduits of surface water in such a manner that the water thus collected is so discharged that it reaches the public sidewalk and there freezes, making the sidewalk dangerous to traveler, he is chargeable with negligently creating an unreasonable risk of injury. The court there
enunciated the doctrine that where the action is between a landowner and a pedestrian who suffers an injury through an obstruction of the public sidewalk, the general principles of negligence must be applied.
Gellenthin represents a logical progression of the principles adopted in Saco v. Hall, supra, an earlier case involving a somewhat similar factual situation. In Saco the court, in weighing the competing interests of the landowner and the pedestrian, stressed the public easement to use the sidewalk for safe travel and its "right to assume that there is no dangerous impediment or pitfall in any part of it." (at p. 382)
The theory underlying the rule that a landowner should be under no duty to keep the sidewalk bordering his land free from the natural accumulation of snow is that the traveler should be expected to endure the ordinary hazards created by natural conditions, including ice formed by the natural and incidental flow of surface water from melting snow and ice over the public sidewalk. However, a necessary corollary to such a rule must be that the traveler should not be expected to assume responsibility for a peril which, but for the ...