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Davis v. Pecorino

Decided: December 15, 1975.

ROSALIE DAVIS AND MACK DAVIS, PLAINTIFFS-APPELLANTS,
v.
EDWARD PECORINO, DEFENDANT-RESPONDENT



For reversal and remandment -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman and Schreiber. For affirmance -- Justice Clifford and Judge Conford. The opinion of the Court was delivered by Schreiber, J. Clifford, J. (dissenting). Judge Conford joins in this opinion.

Schreiber

The plaintiff Rosalie Davis seeks damages for injuries she received in a fall on a public sidewalk in front of the defendant Edward Pecorino's premises on December 24, 1970. She alleged in her complaint that the accident was caused by the defendant's negligent and careless maintenance of the walk, a charge which he denied. The matter came on for trial and, upon defendant's motion at the close of the plaintiff's case, a judgment of involuntary dismissal was entered by the trial court pursuant to R. 4:37-2(b). The Appellate Division affirmed. We granted certification. 68 N.J. 155 (1975).

To test the propriety of a judgment of involuntary dismissal, the evidence adduced from the record must be viewed in a light most favorable to the plaintiff. Bexiga v. Havir Mfg. Corp., 60 N.J. 402 (1972); Klockner v. Green, 54 N.J. 230 (1969). We have analyzed the record in that manner.

The plaintiff Rosalie Davis worked from 11:00 P.M. on December 23, 1970 to about 6:00 A.M. on the next day. After work she walked to her home on Claremont Avenue in Jersey City. It had snowed on December 22, and some additional snow had fallen on December 23. Many people had cleared the snow from their sidewalks. She arrived home at approximately 6:30 A.M.

About two hours later she decided to walk to a candy store located a few blocks away to buy a newspaper. En route she passed the defendant's gasoline service station, located at the corner of Claremont Avenue and West Side Avenue. An entrance led from the street across the sidewalk into the station. At that point, part of the sidewalk was sloped to the street level. On the day of the accident, defendant had not cleared the snow off the driving surfaces of the station

and automobiles had driven into and out of the gasoline station across the snow covered walk. As a result of this traffic, as evidenced by tire marks which were clearly visible in the snow, the snow in that area of the sidewalk had been packed down and hardened.

On her return from the candy store, plaintiff fell on the sloped part of the sidewalk adjacent to the defendant's service station. This accident, we may infer, was attributable to the packed and hardened snow which had been permitted to remain on the sidewalk across defendant's driveway. She suffered a comminuted fracture at the distal end of the right ankle.

The trial court, relying on Den Braven v. Public Service Elec. & Gas Co., 115 N.J.L. 543 (E. & A. 1935), entered judgment for the defendant. The Appellate Division affirmed. It concluded that the plaintiff's evidence "did not demonstrate any activity on the part of the defendant which altered the condition of the snow and ice." It was "constrained to follow the well-established rule of law iterated in Saco v. Hall, 1 N.J. 377 (1949) and Foley v. Ulrich, 50 N.J. 426 (1967)."

We believe that the judgment in this case must be reversed on the basis of established principles of law long recognized in this State. It has been and is the existing law in New Jersey that an abutting landowner has no duty to remove the natural accumulation of ice and snow from the public sidewalk adjoining his premises. Foley v. Ulrich, supra; Brown v. Kelly, 42 N.J. 362 (1964); Sewall v. Fox, 98 N.J.L. 819 (E. & A. 1923); Saco v. Hall, supra, 1 N.J. at 381. Nor does he have an obligation to maintain that sidewalk, for he is not responsible for defects caused by the elements or wear and tear incident to public use. Moskowitz v. Herman, 16 N.J. 223 (1954).

However, there are certain well recognized exceptions to these rules of non-responsibility. An abutting landowner is responsible for dangerous conditions created as a result of his special use of the public sidewalk for his particular benefit.

A sidewalk is intended primarily for pedestrians, and an abutting owner who invades the public easement exclusively for his own benefit is responsible for the resultant hazardous condition. His special use is subordinate to the primary function of the sidewalk, the public's right of travel on it.

This special use concept was enunciated in Durant v. Palmer, 29 N.J.L. 544 (E. & A. 1862). The defendant had constructed a hole 4 feet wide by 7 1/2 feet deep in front of his shop to protect the building from dampness and to provide steps to the basement. The plaintiff pedestrian fell in the opening and was injured. Liability was predicated and sustained on ...


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