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O''Neill v. Suburban Terrace Apartments Inc.

Decided: June 18, 1970.

ROSALIE O'NEILL AND THOMAS O'NEILL, PLAINTIFFS-APPELLANTS,
v.
SUBURBAN TERRACE APARTMENTS, INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT



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

Kilkenny

[110 NJSuper Page 542] This personal injury, fall-down on an icy and snow-covered public sidewalk, negligence case

resulted in a verdict in favor of the injured plaintiff wife in the sum of $8000 and in favor of plaintiff husband in the sum of $2000 for his damages per quod.

After return of the verdict the trial judge dismissed the action on defendant's motion to dismiss made before submission of the case to the jury, the ruling on the motion having been reserved pursuant to R. 4:40-2. Plaintiffs appeal from the judgment of dismissal.

We note preliminarily that the standard for determining a motion for an involuntary dismissal under R. 4:40-1 is that the court must accept as true all the evidence which supports the position of the party defending against the motion and must accord him the benefit of all legitimate inferences which can be deduced therefrom, and if reasonable minds could honestly differ, the motion must be denied. Bell v. Eastern Beef Co. , 42 N.J. 126, 129 (1964); Hindle v. Morrison Steel Co. , 92 N.J. Super. 75, 81 (App. Div. 1966).

The facts herein are simple and clear. On January 9, 1968 plaintiffs were tenants of an apartment in a large garden-type apartment house complex, consisting of over 200 units and covering approximately five city blocks. Defendant was the owner and landlord. On that day plaintiff wife left for work early in the morning. It had snowed some days prior and several inches of snow remained on the ground. With the help of a neighbor, plaintiff wife shovelled the walk in front of her apartment, inside the apartment complex. She walked through the complex to the sidewalk used by the general public as an easement outside the apartment house complex and adjacent to the public street, called Esplanade. There are private homes on the other side of this public street. After she had walked several feet along this public sidewalk, she fell and was injured. An eyewitness testified that the sidewalk was snow-covered and had not been shovelled since the snow had fallen.

It was admitted in answers to interrogatories that defendant's employees had been instructed to keep all sidewalks clean. There were sidewalks inside the complex. Plaintiff

wife testified that at times this particular public sidewalk had been cleaned; at other times it had not. It is evident that no snow removal had been undertaken as to this sidewalk after the snowfall preceding plaintiff's injury.

The suit was based upon a claim of negligence. There was no proof of any contractual obligation on defendant's part to remove the snow from this public sidewalk.

In deciding the motion for dismissal in favor of defendant, the trial court observed that defendant had done nothing to remove the snow and ice from the sidewalk where plaintiff fell. It correctly noted that the owner of property is under no duty to maintain public sidewalks abutting his land free from the natural accumulation of snow and ice. So, too, in clearing the snow and ice, there would be no liability unless in doing so there is added a new element of danger or hazard other than the natural forces. This latter factor is not present here in view of the uncontradicted testimony that no snow or ice removal had been undertaken on this occasion.

For cases setting forth the lack of duty on the part of a landowner to maintain public sidewalks abutting his land free from the natural accumulation of snow and ice, see Sewall v. Fox , 98 N.J.L. 819, 821 (E. & A. 1923); Saco v. Hall , 1 N.J. 377, 381 (1949); Foley v. Ulrich , 94 N.J. Super. 410 (App. Div. 1967), reversed on dissenting opinion 50 N.J. 426 (1967). This same rule applies in the case of snow removal from the public sidewalk abutting an apartment building. See MacGregor v. Tinker Realty Co. , 37 N.J. Super. 112 (App. Div. 1955), in which case it was also held that a landlord in the removal of snow from an adjacent public sidewalk does not owe a greater or different duty of care to his tenants than that owing to a member of the public.

Plaintiffs argue that defendant is liable for a failure to exercise due care to carry out duties it had assumed ...


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