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John Hut v. Antonio

Decided: April 14, 1967.

JOHN HUT, AN INFANT BY HIS GUARDIAN AD LITEM ELIZABETH HUT, AND ELIZABETH HUT, INDIVIDUALLY, PLAINTIFFS,
v.
JOHN ANTONIO, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. AARON A. GUTH, MURRAY GUTH, HYMAN GUTH, BLANCHE ROSEN, EDWARD C. REILLY AND ASSOCIATES: AND EDWARD C. REILLY, INDIVIDUALLY, THIRD-PARTY DEFENDANTS



Halpern, A.j.s.c.

Halpern

This is a motion for summary judgment by all the third-party defendants with respect to the claims made against them by John Antonio, the third-party plaintiff. Considering the facts most favorably to Antonio they present this picture: The third-party defendants Aaron Guth, Murray Guth, Hyman Guth, and Blanche Rosen (hereinafter referred to as "Guths") inherited certain real estate in Perth Amboy consisting of three tenements housing twelve families. On the rear boundary line there existed a hollow tile cement wall. The Guths sold the entire property to Antonio about November 15, 1961. The conveyance was made subject to the rights of owners in any party walls and to such state of facts which a survey and inspection of the premises would disclose. Prior to the conveyance Antonio ordered a survey from the third-party defendant Edward C. Reilly & Associates and Edward C. Reilly (hereinafter referred to as "Reilly"). The survey failed to disclose the hollow tile wall as being part of the property in question. For the purposes of this motion I will assume Antonio did not have actual knowledge prior to the accident which is the subject matter of this suit, that the hollow tile wall was part of the property he bought. On September 21, 1965 the infant plaintiff while playing on, or near, the hollow tile wall was injured when it allegedly collapsed. (At the time of oral argument the parties to this suit were unable to state how the alleged accident happened, or whether the wall collapsed.)

On November 3, 1965 the infant plaintiff, by his guardian ad litem, instituted this suit against Antonio charging him with negligence in maintaining a nuisance and failing to

properly maintain the hollow tile wall. Antonio brought in the Guths, as third-party defendants, contending they were joint tortfeasors and claiming contribution from them, and also seeking indemnity. The thrust of his argument is that the Guths maintained a nuisance on the premises (the wall) and since they didn't reveal this to him they are legally responsible to him as indemnitors or joint tortfeasors. The plaintiff does not charge the Guths with any misrepresentations concerning the wall.

Antonio also brought in Reilly, as a third-party defendant, contending he was negligent in making the survey by failing to show thereon the wall here in question. This negligence he argues makes Reilly a joint tortfeasor or entitles him to indemnification if he is held liable to the plaintiff.

The motions for summary judgment by the Guths and Reilly followed.

GUTHS' MOTION

For the purposes of this motion I will assume that the wall was a dangerous condition on Antonio's land when it was sold to him by the Guths, and that plaintiff's injury was causally related to this dangerous condition. The general rule of law applicable is that a seller of realty is not liable for injury to a buyer in possession, or to any third party, which is caused by a dangerous condition on the premises, whether natural or artificial, which existed when the buyer took possession. Sarnicandro v. Lake Developers, Inc., 55 N.J. Super. 475 (App. Div. 1959). The only exceptions to this general rule are (1) if the seller created the dangerous condition and conveyed it in that condition; (2) if the seller created a nuisance and it involves an unreasonable risk of harm to the public or a neighbor, the seller may be held responsible at least for a reasonable length of time after he has parted with possession; and (3) if the seller fails to disclose a dangerous condition known to him but not to the vendee, and the vendee would probably not discover it or its potentiality for harm. Restatement (Second) Torts, para. 352 (1965).

None of the exceptions to the general rule are applicable. Under (1) and (2) the Guths never created the alleged dangerous condition or nuisance which puts them outside the exception. Furthermore, almost four years elapsed between the sale to Antonio and the alleged incident, which is more than the reasonable time mentioned above. The exception in (3) cannot be said to apply since it clearly applies to latent conditions and not to open and visible objects.

The deed from the Guths to Antonio dated November 15, 1961 and recorded in Deed Book No. 2307 p. 353 clearly sets forth the fact that the conveyance was made subject to the following conditions:

"Subject to the rights of owners adjoining on the East and West in the party walls running part way along the Easterly and Westerly side of lot (between the adjoining buildings and shed in rear) as party walls, and subject to the rights or estates, if any, of adjoining owner on the East, because building or ...


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