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Wallach v. Williams

Decided: June 28, 1967.

CHARLES WALLACH, PLAINTIFF-APPELLANT,
v.
LLOYD E. WILLIAMS, DEFENDANT, AND ANTHONY GENANTONE, TIDEWATER OIL CO., INC. AND TIDEWATER REALTY CO., INC., DEFENDANTS-RESPONDENTS



Lewis, Labrecque and Kilkenny. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

[103 NJSuper Page 196] Plaintiff sued for personal injuries sustained while a business invitee at a Flying "A" service station located on lands of defendant Tidewater Realty Co., Inc., (Realty) which was leased to defendant Tidewater Oil

Co., Inc., (Tidewater), and sublet to defendant Anthony Genantone. On June 15, 1962 while plaintiff's vehicle was being fueled at one of Genantone's gasoline pumps, plaintiff walked to the rear of his car to place something in the trunk. As he was standing there defendant Lloyd E. Williams pulled up and stopped his car at a point about ten feet away. Williams got out of the car leaving two passengers, neither of whom was familiar with the operation of his car, in the front seat. Williams did not shut his motor off although he testified he left the automatic drive lever in "neutral" and applied the holding brake. Suddenly, while Wallach was still standing at the rear of his car, the Williams car moved forward, pinning him against the rear of his own car and crushing his leg so badly that amputation became necessary.

At the trial of the case, at the conclusion of all the proofs, the trial judge granted the motions of defendants Tidewater and Realty for judgment in their favor. R.R. 4:51-1. A similar motion for judgment by Genantone was reserved by the trial judge. R.R. 4:51-2(a). Following the rendition of a verdict in the sum of $175,000 against both Williams and Genantone, Genantone's motion was granted.

Plaintiff's original appeal was from the judgments in favor of Genantone, Realty and Tidewater. Williams did not appeal. At the oral argument we were advised that there had been a settlement as to Genantone so that the remaining issues with which we are concerned pertain only to the liability of Tidewater and Realty.

We hold that the entry of judgment in favor of Realty was proper. Realty had no connection with and was exercising no control over the operation of the service station. Its sole interest was as the owner and lessor thereof to Tidewater for a 20-year period beginning December 1, 1959. Conceding, arguendo, that it was a wholly owned subsidiary of Tidewater, the use of such corporate entities for the purpose of holding title to property is not per se fraudulent. Macfadden v. Macfadden, 46 N.J. Super. 242, 249

(Ch. Div. 1957), affirmed 49 N.J. Super. 356 (App. Div. 1958), certif. denied 27 N.J. 155 (1958). The record before us reveals no proof which would support an inference that title was held in Realty for any illegal or fraudulent purpose.

Plaintiff urges that the nature of the relation between Tidewater and Genantone, the operator of the service station, was such that it continued responsible with him for the operation of the station and thus became jointly liable for any injury resulting from negligence in the operation thereof or from nuisances permitted to exist on the premises.

We disagree and hold that, in the context of the facts presented, the judgment in favor of defendant Tidewater was proper. In Brittain v. Atlantic Refining Co., 126 N.J.L. 528 (E. & A. 1941), defendant Atlantic Refining Co. leased certain premises owned by it to one Ramer for use as an automobile service station. Under the lease Ramer agreed to repair damaged equipment and assumed responsibility for "full and exclusive control of premises and equipment thereon." By a separate agreement he agreed to act as a dealer for the landlord and to purchase from it stipulated amounts of gasoline and lubricants. Brittain later sued the landlord for personal injuries sustained by him when his automobile rolled off the station "lift" while being serviced, pinning him against the wall. His theory as to the company's liability was that it had failed to perform its duty of exercising reasonable care to make the premises and appliances (the lift) reasonably safe or, alternatively, that it had delivered the premises and appliances to the tenant in such a defective and dangerous condition as to bring about a nuisance for which it continued liable.

In rejecting this contention the court held that the lessor was under no liability for the injuries sustained by plaintiff, notwithstanding that the tenant had been required to sell a minimum amount of the lessor's products and that the lessor routinely had sent its agents to inspect the premises. It noted that such arrangements "seem to be quite a logical means

whereby the company could increase its sales, and there nowhere appears any interference with the tenant's exclusive responsibility for operation of the premises themselves, as provided in the lease." As to the existence of the alleged nuisance the court held that the lessor was not a guarantor of the tenant's non-negligent use of the premises and that the only basis of liability would have been one which arose from a faulty construction ...


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