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O''Connor v. Altus

Decided: March 11, 1975.

KATHLEEN JULIE O'CONNOR, AN INFANT BY HER GUARDIAN AD LITEM, MARY JOAN O'CONNOR; AND ROGER O'CONNOR, PLAINTIFFS-APPELLANTS AND CROSS-RESPONDENTS,
v.
ABRAHAM ALTUS AND HARRISON PARK, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS



For affirmance and remandment -- Justices Jacobs, Hall, Sullivan and Clifford. Concurring in part and dissenting in part -- Justice Pashman. The opinion of the Court was delivered by Clifford, J. Pashman, J. (concurring and dissenting).

Clifford

Harrison Park Apartments is a high-rise apartment building located at 377 Harrison Street, East Orange. On September 13, 1967, the infant plaintiff, Kathleen Julie O'Connor, was on the premises visiting her friend Renee Sliby who resided there. They were on their way to the rear of the apartment building when the accident occurred.

Leading to the patio or playground area in the rear were two sets of glass doors, separated by a brick partition. A glass sidelight of the same height and virtually the same width as the door flanked each glass door. The sidelights contained quarter-inch ordinary plate glass with no decals or markings thereon. The infant plaintiff walked or ran through one of the sidelights, it appearing to her to be an open door. The accident resulted in her being hospitalized for two operations. Numerous scars and some functional impairment of her legs are among the claimed residual damages.

On January 20, 1969, Julie and her father instituted this suit*fn1 to recover for personal injuries and consequential damages. Harrison Park, Inc., the owner of the property when the building was constructed, and Abraham Altus, the record owner of the property at the time of the accident, were both named as defendants.*fn2 The theory of the corporate defendant's liability is found in these factual and legal contentions of plaintiffs, set forth in the pretrial order:

As to the defendant Harrison Park, Inc., plaintiff contends that it was the builder and principal contractor of Harrison Park Apartments, negligent in the construction and maintenance of the doorway and side light in question and responsible as a general contractor for the construction of the glass panels which appear to be open areas of the doors with aluminum frames that can easily be mistaken as doors but fail to conform with proper construction and maintenance procedure and general safety requirements in that clear glass panels should be marked with a decorative design or decals and the glass should have been the safety type.

Plaintiffs' complaint charges defendant Altus, the owner at the time of the accident, with having "negligently, carelessly and recklessly failed to properly control, care for, operate and maintain the aforesaid premises." There is no claim that Altus had any ownership interest at the time of construction or that he was in any way connected with the premises prior to or for some considerable time after the completion of the building. The record before us and the representations of counsel clearly indicated Altus' role is not other than record owner at the time of this occurrence. Defendant Altus did not answer and default was entered against him.

The jury returned verdicts of $100,000 in favor of the infant plaintiff and $3,000 in favor of her father against Harrison Park, Inc. After trial the judge vacated the default as to Altus and struck the attempted service of process upon him. On the appeal of Harrison Park, Inc., from the judgment entered upon the jury verdicts and plaintiffs' cross-appeal from the trial court's action in vacating the default and striking service of process, the Appellate Division (a) reversed the judgment in favor of plaintiffs because of asserted error in the jury charge and remanded the case for a new trial on all issues as to Harrison Park, Inc., 123 N.J. Super. 379, 385 (App. Div. 1973); (b) affirmed the trial court's order setting aside the default as to Altus but provided that the remand for a new trial would include plaintiffs' claim against Altus, inasmuch as Altus' counsel

informed the court he was "authorized to acknowledge service for him and he will do so." Id. at 387.

Our grant of plaintiffs' petition for certification, 64 N.J. 152 (1973), and defendants' cross-petition for certification, 64 N.J. 153 (1973), presents for review the propriety of these determinations. Also considered are the impact of N.J.S.A. 2A:14-1.1 dealing with the unsafe condition of improvements to real property; the interaction of the ten-year provision of that statute with the personal injury statute of limitations, N.J.S.A. 2A:14-2, and with the tolling statute, N.J.S.A. 2A:14-21; and the rulings by the courts below on the testimony of a treating psychiatrist.

I

The precise role and participation of Harrison Park, Inc., in the construction of the apartment building is less than clear. It is undisputed that the corporation was the owner of the fee during the period of construction and that it engaged the services of the architect who drew the plans. However, David Shuldiner, an officer of the corporation which installed the glass, testified that the name Harrison Park Construction Co., Inc., appeared on the contract with his firm.*fn3 The record does not reveal which entity hired the other subcontractors for the construction.

Thus, we cannot say with any certainty whether Harrison Park, Inc., was merely the owner of the land or whether

it was, at least to some degree, the owner-builder. However, under either view of its role it seems clear that plaintiffs' action against that defendant has been brought too late.

First, we analyze the corporate defendant's position as mere owner. Under either the traditional view of a vendor's liability, see Sarnicandro v. Lake Developers, Inc., 55 N.J. Super. 475 (App. Div. 1959); Restatement (Second) of Torts, §§ 353, 373 (1965), or the more liberal view of liability urged by plaintiffs, see Hut v. Antonio v. Guth, 95 N.J. Super. 62 (Law Div. 1967),*fn4 any liability for physical harm caused by a natural or artificial condition, of which the vendor has actual or constructive notice, involving unreasonable risk to persons on or off the land continues only until the vendee has had a reasonable opportunity to discover the condition and take appropriate precautions. See Prosser, Law of Torts § 64 (4th ed. 1971); Annotation, "Liability of Vendor or Grantor of Real Estate for Personal Injury to Purchaser or Third Person Due to Defective Condition of Premises," 48 A.L.R. 3d 1027 (1973).

Harrison Park, Inc., conveyed title to the property to Harrison Associates, a limited partnership, on October 1, 1958, and the accident occurred on September 13, 1967. (In the meantime Harrison Associates had conveyed legal title to defendant Altus.) It is apparent that nine years is much

more than a reasonable time for the vendee and his successor to have discovered and cured any such unsafe conditions, of which the vendor had knowledge, as are alleged in this case. See Cavanaugh v. Pappas, 91 N.J. Super. 597, 605 (Cty. Ct. 1966) (five days not unreasonable); Hut v. Antonio v. Guth, supra, 95 N.J. Super. at 67 (almost four years an unreasonable period); Narsh v. Zirbser Brothers, Inc., 111 N.J. Super. 203, 216-217 (App. Div. 1970) (eleven months an unreasonable period). See also Restatement (Second) of Torts § 353, Comment g (1965). Therefore, if the corporate defendant be simply an owner, there is no liability to plaintiffs under the circumstances as a matter of law, and the Appellate Division was in error in remanding for "one or more factual determinations," 123 N.J. Super. at 385.

On the other hand, if Harrison Park, Inc., is deemed a builder-vendor, N.J.S.A. 2A:14-1.1 comes into play and, says the corporate defendant, operates to bar this action against it. That statute reads as follows:

No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought. L. 1967, c. 59, § 1, eff. May 18, 1967.

Preliminarily we observe that defendant Harrison Park, Inc., did not raise the defense of this statute in its answer to the complaint or in its pretrial contentions. Therefore, argue plaintiffs, whatever defense might otherwise be

afforded by that enactment should be deemed waived, it being a statute of limitations and thus required by R. 4:5-4 to be pleaded. Plaintiffs recognize, however, the rule of Rappeport v. Flitcroft, 90 N.J. Super. 578 (App. Div. 1966), which preserves the defense of statute of limitations, at least for purposes of a motion before the trial, where the answering pleading recites the complaint's "failure to state a claim upon which relief can be granted," 90 N.J. Super. at 580-81; see R. 4:6-2. By its answer herein defendant Harrison Park, Inc., undertook to reserve the right "to move to dismiss the Complaint filed in the within cause at any time prior to, at, or during the trial of the within cause, on the ground that plaintiffs have no legal cause of action against the defendant hereunder," that ground being substantially the same as "failure to state a claim upon which relief may be granted."

The question then becomes whether under the circumstances of this case Harrison Park, Inc., may avail itself of the protection afforded by N.J.S.A. 2A:14-1.1. We hold the defense available and, as will develop, a bar to plaintiffs' claims.

While it was not until the conclusion of plaintiffs' case that Harrison Park, Inc., raised the issue of the statute's applicability to it, plaintiffs were aware that the issue of the statute was in the case. It had been pleaded by the defendant architect and raised by him both in the pretrial order and by way of pretrial motion. It was the basis upon which the trial judge exculpated the architect by an order for judgment n.o.v. The construction to be given the statute under the facts herein was fully argued, albeit on shifting foundations because of the parties' inability to approach the status of Harrison Park, Inc., with any consistency. Given the unusual situation before us, we conclude the interests of justice will best be served by permitting the defense of the statute to be asserted by the corporate defendant, see R. 1:1-2; but we add the cautionary note that under different

circumstances a like departure from the procedure set forth in our Rules may not be condoned.

Turning now to the proper interpretation of the statute, we note that in Rosenberg v. Town of North Bergen, 61 N.J. 190 (1972), Justice Mountain, writing for this Court, upheld N.J.S.A. 2A:14-1.1 against various constitutional attacks and discussed its parameters. In Rosenberg, plaintiff sustained injuries when her heel caught in the fissure between the concrete lanes of Bergenline Avenue in North Bergen. Among the defendants she named were the company which had done the paving work 33 years earlier and its successor in interest. The Appellate Division held that a road or highway was not "an improvement to real property" within the meaning of the statute and refused to bar plaintiff's cause of action. 115 N.J. Super. 322, 325 (App. Div. 1971).

In reversing the Appellate Division the Court noted that two recent developments in the law were the probable motivation for the legislature in passing the statute. An ordinary statute of limitations requires that a complaint be filed within a certain period of time after the cause of action accrues. However, in some negligence cases a cause of action had accrued and the period of the statute had run before the victim became at all aware of the negligence and the damages. Under the new "discovery" rule the statute of limitations has been held not to commence running until the victim discovers, or should have discovered, the wrong had been inflicted. See Fernandi v. Strully, 35 N.J. 434 (1961); New Market Poultry Farms, Inc. v. Fellows, 51 N.J. 419 (1968); Diamond v. N.J. Bell Telephone Co., 51 N.J. 594 (1968). See also Yerzy v. Levine, 57 N.J. 234 (1970), aff'g 108 N.J. Super. 222 (App. Div. 1970); Federal Insurance Co. v. Hausler, 108 N.J. Super. 421 (App. Div. 1970).

Another development apparently influencing the legislature was the demise of the "completed and accepted" rule. Under this former rule the ...


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