author: Soalera, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JOSEPH COCUZZA, DEFENDANT.
    Essex County Court Law Division (Criminal)
    Decided February 23, 1973.

      John A. Matthews, III, Assistant Prosecutor, for the State {Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney) .

      Harvey Weissbard for defendant (Messrs. Isles and Weiss-bard, attorneys).

   Soalera, J. C. C.

Defendant Joseph Cocuzza is charged with conspiracy to operate a lottery and to violate the laws pertaining to gambling, conspiracy to obstruct justice and obstruction of justice, conspiracy to threaten a life and threatening to take a life. Eighteen codefendants were indicted for sundry violations of the laws pertaining to gambling.

The indictments find origin in a series of five wiretap orders issued pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N. J. S. A. 2A:156A-1 et seq.

On December 13, 1971 the Essex County assignment judge authorized members of the Essex County Prosecutor’s office and members of the City-County Task Force to intercept wire communications of two' telephones listed to one “M. Mazzeo” (a codefendant) at 61 Plymouth Street, Newark, New Jersey. The order issued as a result of the application of an investigator in the Essex County Prosecutor’s office. His affidavit indicated the use of those telephone facilities to foster illegal gambling activities. The written authorization required by N. J. S. A. 2A :156A-8 was signed, not by the county prosecutor himself, but rather by an assistant prosecutor.

On December 17, 1971 a second order authorized a wiretap of a telephone listed to one “W. Crecca” (a codefendant), Apt. B, 343 Branch Brook Drive, Belleville, New Jersey. The sworn application was based on information emanating from the December 13 wiretap order. On December 21, 1971 a third wiretap order permitted interceptions of a different phone issued to one “Carl Romano” (a codefendant), at the same address as indicated in the December 17 wiretap order. Again, the requisite information had been obtained from the monitoring authorized by the December 17 wiretap. On December 30, 1971 the assignment judge approved an'extension of the initial 'December 13 wiretap order. On January 3, 1972 a final order authorized a wiretap of a telephone listed to one “M. Hlavonka” (a codefendant), Apt. 94, 352 Hoover Avenue, Bloomfield, New Jersey, based upon information obtained from the previously authorized wiretaps.

On January 8, 1973 an affidavit relating information secured from the various wiretaps in progress, resulted in the issuance of numerous search and arrest warrants which, when executed, resulted in multiple arrests. Defendant Cocuzza apparently was not involved in the arrests stemming from the execution of these warrants.

Defendant initially sought to suppress “any and all telephone communications intercepted pursuant to N. J. S. A. 2A :156A-1 et seq and all evidence derived therefrom,” contending that the interceptions were in violation of the New Jersey wiretap statute and of his constitutional rights.

He then narrowed the scope of his attack. More particularly, he asserts that the December 13 wiretap was invalid because the written authorization required by N. J. S. A. 2A:156A-8 was signed by an assistant prosecutor instead of the county prosecutor himself. It is urged that the New Jersey wiretap statute prohibits such a delegation of authority to an nassistant prosecutor and, in the alternative, that such a statutory provision would be contrary to the Congressional mandate in the federal wiretap act, 18 U. S. C. A. § 2510 et seq. Moreover, he contends, the entire series of wiretap orders is “tainted,” being necessarily based upon information secured from the defective initial wiretap order, and all information secured thereby must be suppressed as “eA’idence derived” from an illegal interception. N. J. S. A. 2A:156A-21. In further consequence of this, defendant asserts, the resultant search Avarrants and all evidence produced from their executions must be suppressed.

The historical development of permissible intrusion by law enforcement in the field of wiretapping is well documented. State v. Christy, 112 N. J. Super. 48 (Cty. Ct. 1970), Berger v. New York, 388 U. S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967), and Katz v. United States, 389 U. S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), fashioned the constitutional touchstone for future wiretaps by law enforcement agencies. Adherence to their mandates is a sine qua non of legitimate and constitutionally valid searches by such means. The United States Congress responded by enacting legislation to guide not only the Federal Government’s activities in this sensitive area but also to permit the several states to adopt legislation workable on a local level but consonant with their decree. 1968 U. S. Code Cong. & Adm. News p. 2177 et seq.; 18 U. S. C. A. § 2510 et seq.; Blakey and Hancock, “A Proposed Electronic Surveillance Control Act”; 43 Notre Dame Lawyer 657 (1968); ABA Standards Relating to Electronic Surveillance (Approved Draft 1971 pp. 13 to 98). The New Jersey act was thus specifically “designed to meet the Federal requirements” N. J. S. A. Cum. Supp. 2A:156A—1 et seq., Statement.

I

Dealing with initial authorization of an interception, the act provides that

The Attorney General, a county prosecutor or the chairman of the State Commission of Investigation when authorized by a majority of the members of the commission of a person designated to act for such an official and to perform his duties in and during his actual absence or disability may authorize, in writing, an ex parte application to a judge designated to receive the same for an order authorizing the interception of a wire or oral communication by the investigative or law enforcement officers or agency having responsibility for an investigation. * * [N. J. S. A. 2A:156A-8]

In contrast to the federal provision, our act requires that such authorization be “in writing.” It is noted that the absence of a more precise manner and method of authorization in the federal legislation has led to different and sometimes conflicting interpretations. 18 U. S. C. A. § 2516(1) ; United States v. Doolittle, 341 F. Supp. 163 (M. D. Ga. 1972); United States v. Pisacano, 459 F. 2d 259 (2 Cir. 1972); United States v. Cantor, 328 F. Supp. 561 (E. D. Pa. 1971); United States v. Iannelli, 339 F. Supp. 171 (W. D. Pa. 1972); United States v. Aquino, 338 F. Supp. 1080 (E. D. Mich. 1972); United States v. La Gorga, 336 F. Supp. 190 (W. D. Pa. 1971); United States v. Casale, 341 F. Supp. 374 (M. D. Pa. 1972).

Congress, under 18 U. S. C. A. § 2516(2), requires that such state legislation limit those empowered to grant the initial authorizations to the “principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof * * *.”

Recognizing the “awesome” power of modern electronic listening devices Congress clearly intended, as a matter of policy, to have control of that power remain within the “political process,” United States v. Robinson, 468 F. 2d 189 (5 Cir., 1972), reargument granted en banc 468 F. 2d 194 (1972); 1968 U. S. Code Cong. & Adm. News pp. 2185-2187; ABA, Standards Relating to Electronic Surveillance (Approved Draft 1971, at 131—133); United States v. Narducci, 341 F. Supp. 1107 (E. D. Pa. 1972). Unquestionably, the purposeful design was to keep “decisions at the highest practicable policy-making levels” of government in all wiretap) intrusions. Ibid, United States v. Lanza, 341 F. Supp. 405, 408 (M. D. Fla. 1972).

The New Jersey Legislature accordingly provided that a wiretap may be initiated, “in writing,” only by the “Attorney General, a county prosecutor or the chairman of the State Commission of Investigation * * * or a person designated to act for such official and to perform his duties in and during Ms actual absence or disability.” N. J. S. A. 2A: 156A-8.

The affidavit submitted by the county prosecutor here indicates that the assistant prosecutor who signed the authorization had orally advised him of the preparation of this application for the initial wiretap order and “briefly the facts upon which said application was to be based.” The prosecutor was thus “satisfied” to permit the application. The prosecutor was further advised that the wiretap should be executed “as soon as possible.” Since he was “scheduled to attend a meeting outside of the office” he “told” the assistant prosecutor “to sign the authorization in [his] name” and apply for the wiretap order. Accordingly, the application and authorization which had been prepared for the county prosecutor’s personal review and signature was, instead, reviewed and signed by the assistant prosecutor with the latter’s signature.

Thus the question arises whether an assistant prosecutor may be individually authorized by the county prosecutor to so initiate a wiretap, within the meaning of N. J. S. A. 2A:156A-8.

The statutory language is susceptible of different interpretations. One may argue, as does the State, that the statute permits the prosecutor to delegate to an assistant the power to initiate a specific wiretap application. Defendant urges that it should be construed to mean that, only a person properly designated to assume all of the powers of the prosecutorial office during actual absence or disability of the prosecutor has power to so act.

A county prosecutor is appointed by the Governor with the advice and consent of the Senate. N. J. Const. (1947), Art. VII, § II, par. 1; N. J. S. A. 2A:158-1. Similarly, the other two officers empowered to initiate wiretaps under the statute, the Attorney General and the chairman of the State Commission of Investigation, are likewise appointed by the Governor with similar legislative involvement. N. J. Const. (1947), Art. V, § IV, par. 3; N. J. S. A. 52:9M-1.

Congress sought to distinguish the use of wiretaps from other search and seizure procedures then in use, both substantively and procedurally. It was deemed imperative that responsibility for formulation of law enforcement policy in this area be centralized in a publicly responsible official subject to the political process. U. S. Code Cong. & Admin. News, supra at p. 2185. Recognizing the different levels of government activities in the several states, it limited the granting of snch authority to the level of “the principal prosecuting attorney of any [state] political subdivision” 18 U. S. C. A. § 2516(2). In New Jersey such a “subdivision” reaches down to the county level only. U. S. Code Cong. & Admin,. News p. 2187 (1968); United States v. Lanzo, supra, 341 F. Supp. at 410. Accordingly, the county prosecutor may be so authorized.

In light of the Congressional concern for continued “political” control over the persons authorized to invoke wiretaps, as a matter of policy, the New Jersey statute cannot be construed to allow such delegation of authority to an assistant, United States v. Robinson, supra. This holds true even here where the assistant prosecutor was an integral part of the Organized Crime Strike Force. United States v. Narducci, supra.

The evils aitendant upon a construction allowing delegation of responsibility to assistants on a case-to-case basis in the area of electronic “'searches” are readily apparent. See United States v. Robinson, supra; United States v. Baldassari. 338 F. Supp. 904 (M. D. Pa. 1972). It would obviate the requirement that the value judgment necessary to initiate a wiretap be made by a public official politically appointed. Here the prosecutor himself never actually reviewed the tile or underlying facts. His involvement was limited to a “brief” recital by an assistant. Cf. United States v. Narducci, supra. He never personally exercised the discretion reserved to his office alone. United States v. Robinson, supra.

It is therefore concluded that the wiretap order issued by the assignment judge on December 13, 1972 was fatally defective for failure of the prosecutor himself to properly authorize the application in writing pursuant to the requirements of N. J. S. A. 2A:156A-8. R. 3:5-7(d), rendering lawful mere “technical insufficiencies or irregularities” in obtaining search warrants, is inapposite. United States v. Narducci, supra, 341 F. Supp. at 1110. The requirement in question cannot be construed to be a mere matter of form. Nor is a contrary result required by State v. Petillo, 61 N. J. 165 (1972). Petillo does not apply here where statutory prerequisites for initiating the application have not been fulfilled. Ibid.

It is argued by the State that such a restrictive interpretation renders totally inoperative that provision in the statute providing for exercise of wiretap authorization in the county prosecutor’s “actual absence or disability.” N. J. S. A. 2A:156A-8. The simple answer to such a contention is found in the provisions of N. J. S. A. 2A:158-9 wherein the Legislature has empowered local assignment judges to “appoint a fit person” to exercise “the powers of a prosecutor” in his absence. It is presumed that the Legislature was familiar with this statutory provision at the time it enacted the wiretap law provision in question, and it is our duty to give effect to both expressions of legislative will. State v. Federanko, 26 N. J. 119, 129 (1958). Undoubtedly, county assignment judges may designate any “fit person” to exercise the “powers of a prosecutor” during his absence. A standing order by each assignment judge appointing an “acting prosecutor” to act, as such absence or disability may occur, would facilitate resolution of the problem which occurred here and also operate to avoid the abuses feared by the lawmakers at both the federal and. state levels.

II

Notwithstanding the merits of defendant’s argument above, the State challenges the standing of this defendant to complain of the illegality of the December 13 wiretap order. It is argued that any defect in that order, fatal or not, is of no benefit to him on this motion since he is not an. “aggrieved person” under the New Jersey Wiretap Act and cannot launch such an attack. N. J. S. A. 2A :156A-21 provides that:

Any aggrieved person in any trial, hearing, or proceeding in or before any court or other authority of this State may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that:
a. The communication was unlawfully intercepted;
b. The order of authorization is insufficient on its face;
c. The interception was not made in conformity with the order of authorization. * * *

An “aggrieved person” within this section is defined by N. J. S. A. 2A:156A-2(k) :

“Aggrieved person” means a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.

Defendant has had the opportunity to listen to all tapes of intercepted communications. He has submitted an affidavit to establish that he was a “party” to several of the telephone calls intercepted on December 20, 1971. At the oral argument, however, defendant conceded that he was not “a party” to any of the wiretaps conducted pursuant to the December 13 order, the one under attack. If defendant was not a party to any of those interceptions, he must find standing to complain elsewhere in the statutory scheme, i. e., as “a person against whom the interception was directed.”

New Jersey’s provision concerning “aggrieved persons” is identical to the federal provision. 18 U. S. C. A. § 2510(11) and § 2518(10) (a). The legislative history again indicates the policy considerations which dictated limiting the persons eligible to invoke the statutory suppression sanction. 1968 U. S. Code Cong. & Adm. News, pp. 2179-2180; Blakey and Hancock, “A Proposed Electronic Surveillance Control Act,” 43 Notre Dame Lawyer 657, 664 n. 14 (1968); ABA Standards Relating to Electronic Surveillance (Approved Draft 1971 at 116 to 118). The language is intended to reflect and be coextensive with the existing law in non-wiretap searches and seizures. Ibid; Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. ed 2d 441 (1963); Jones v. United States, 362 U. S. 257, 80 S. Ct. 725, 4 L. ed 2d 697 (1960); Goldstein v. United States, 316 U. S. 114, 62 S. Ct. 1000, 86 L. ed 1312 (1942).

An “aggrieved party” to a non-wiretap search and seizure has been broadly defined as one who has been the victim of the search and seizure as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search and seizure directed at someone else. State v. Doyle, 77 N. J. Super. 328, 344 (App. Div. 1962), cause remanded 40 N. J. 320 (1963), appeal after remand 42 N. J. 334 (1964); Jones v. United States, 362 U. S. 257, 80 S. Ct. 725, 4 L. ed 2d 697 (1960) Defendant here asserts that the evidence derived from the defective December 13 wiretap order taints the subsequent order directed “against” him.

In Alderman v. United States, 394 U. S. 165, 89 S. Ct. 961, 22 L. ed 2d 176 (1969), the court dealt with the specific problem of what persons were entitled to such relief when evidence is obtained from illegal electronic eavesdropping. Defendants there urged that if the illegally obtained evidence was inadmissible against one defendant or eoconspirator, it was also inadmissible against his codefendant or eoconspirator. The Supreme Court, in rejecting this argument, reiterated the rule enunciated in Jones v. United States, supra, and cited Mancusi v. DeForte, 392 U. S. 364, 88 S. Ct. 2120, 20 L. ed. 2d 1154 (1968), and Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L. ed 2d 1247 (1968), as reaffirmance of these principles.

Thus, they reasserted that Fourth Amendment rights are “personal rights” and “may not be vicariously asserted.” Alderman v. United States, 394 U. S. at 174, 89 S. Ct. 961. The court further noted that Congress, in enacting the federal wiretapping legislation with its definition of “aggrieved person,” had deliberately chosen not to extend any further the exclusionary rule theretofore applicable to search and seizures generally. Alderman v. United States, 394 U. S. at 175, n. 9, 89 S. Ct. 961.

Applying even the broad privilege reflected in the preexisting case law, defendant is not an “aggrieved person” within the meaning of N. J. S. A. 2A :156A—21, with standing to attack the wiretaps conducted pursuant to the order of December 13, 1971. He does not qualify as a “party” to any of those intercepted conversations, nor is there any evidence to indicate that he is a person “against whom” those interceptions were directed. Moreover, he may not “vicariously” assert such personal Fourth Amendment rights of codefendants who may have been affected by the defective initial wiretap order. (It is important to note that none of the other defendants in this action has launched any such attack).

Accordingly, although the initial wiretap order of December 13 was issued in violation of the statutory provisions, defendant is not entitled to the relief sought on this motion since he is without standing to do so under the wiretap statute. Hone of the interceptions directed against this defendant pursuant to the validly issued wiretap orders were “tainted” insofar as he may be concerned. Alderman v. United States, supra.

The motion is denied.


source: Caselaw Access Project

author: Lysch, J. A. D.

license: Public Domain

text:
    ROBERT KNAPP, III, AN INFANT, BY HIS GUARDIAN AD LITEM, ROBERT KNAPP, JR., COLEEN KNAPP, ETC., GAYLE KNAPP, ETC., ROBERT KNAPP, JUNE KNAPP, INDIVIDUALLY AND AS ADMINISTRATOR AD PROS. AND GENERAL ADMINISTRATOR OF THE ESTATE OF DONNA KNAPP, AND GEORGE BEAL AND DORIS BEAL, PLAINTIFFS-RESPONDENTS, v. PHILLIPS PETROLEUM COMPANY, A DELAWARE CORPORATION, AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT-APPELLANT, AND GEORGE R. WISSING, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued January 15, 1973
    Decided March 5, 1973.

      Before Judges Fkitz, Lynch and Maktino.

      Mr. Robert V. Carton argued the cause for appellant (Messrs. Carton, Nary, Witt & Arvanitis, attorneys).

      Mr. Thomas T. War sham argued the cause for respondents Knapp (Messrs. Drazin, Warshaw, Auerbach md Rudnick, attorneys).

      Mr. Michael T). Schotiland argued the cause lor respondents Beal (Messrs. Ohamlin and Schollland, attorney).
   The opinion of the court was delivered by

Lysch, J. A. D.

Defendant Phillips Petroleum Company (Phillips) appeals from judgments against it pursuant to jury verdicts in favor of the several plaintiffs who were injured in an automobile accident which occurred on Route 34 in Madison Township on April 10, 1969. The verdicts were also against defendant Wissing. He does not appeal.

The accident occurred at a point in the roadway of Route 34 opposite the driveway of a gasoline service station owned by Phillips. Defendant Wissing was driving his car south on Route 34 when he observed what appeared to be a “pot hole” in his lane (the lane nearest the center of the highway). Thinking his left front wheel might hit the hole, he swerved to his left to avoid it. It was raining and, as he turned, the front of his ear went into the northbound lane, began to skid across the center line and was struck in the right side by a northbound car owned and operated by plaintiff Robert Knapp, Jr. Passengers in the Knapp vehicle were his wife June, his children Gayle, Coleen, Robert, 111 and Donna, and also plaintiffs George Beal and his wife Doris. All were injured, Donna Knapp dying as a result of the injuries she sustained. Damages were assessed as follows: George Beal, $5,000; Doris Beal, $20,000; Robert Knapp, Jr., $75,000; Gayle Knapp, $40,000; Coleen Knapp, $2,500; Robert Knapp, III, $1,000; June Knapp, $175,000. On the claim because of Donna Knapp’s death, $20,000 was awarded, and for her pain and suffering the verdict was in the amount of $4,000.

The essence of plaintiffs’ claim against Phillips was that the construction of the gas station, and particularly of a “French” drain beneath the driveway thereof, did cause (as stated in Knapps’ brief) “a casting of waters in an increased amount onto or under the highway in such a manner as to create or cause the condition which ultimately created the hole in Highway 34, causing the subsequent series of events.” This conduct on the part of Phillips is said to have been a proximate cause of the accident.

Several experts, William Poznak for plaintiff, Wallace Y. Smith and Russell H. Benjamin on behalf of defendants, were in substantial agreement as to the cause of the condition of Route 34 in the area in question. In general, they agreed that underground springs coming from the Phillips property weakened the subsurface of the road, contributing to the general breaking up of the highway in the area in question.

The differences among the experts, however, rested in their diverse opinions as to the functioning of the French drain and its relationship to the breaking up of the highway. Mr. Poznak, for plaintiffs, testified that French drains are “inefficient.” Asked what part the French drain in its location played in the “breaking up underneath the roadway so this hole developed,” he answered that it tended to accumulate subsurface water and in this instance brought it closer to the highway and “this proximity of the water being drawn down here would then go under the road.” Messrs. Benjamin and Smith, for defendants, while conceding that subsurface water coming from the Phillips property contributed to the breaking up of the highway, testified that the French drain was a proper and acceptable means of attempting to intercept the subsurface water, whereby less of such water reached the base of the highway than would have had the French drain not been built.

Defendant Phillips contends on appeal that (a) it had no legal duty which was violated; (b) “the hole” in the road could not have been a proximate cause of the accident; (c) nothing that Phillips did or did not do, was a proximate cause of the hole; (d) the verdict of the jury was against the weight of the evidence and the result of bias, passion, prejudice and/or sympathy; (e) the court erred in its charge and in refusing defendant Phillips’ request to charge; and (f) the verdicts were excessive.

The main thrust of Phillips’ argument is that the court erred in denying its motions for involuntary dismissal, in denying its motions for judgment n. o. v. and for a new trial, and in submitting the issues to the jury.

On such motions the court must accept as true all the evidence which supports the position of the party defending against the motion and accord him the benefit of all inferences which can reasonably and legitimately be deduced therefrom. If reasonable minds could differ, the motion must be denied. Dolson v. Anastasia, 55 N. J. 2, 5 (1969) ; Bozza v. Vornado, 42 N. J. 355, 357-358 (1964) ; Bell v. Eastern Beef Co., 42 N. J. 126, 129 (1964); Franklin Discount Co. v. Ford, 27 N. J. 473, 490 (1958). Those inferences drawn are to be taken from established facts and may not bo based upon a foundation of pure conjecture, speculation, surmise or guess. Velasco v. Goldmam Builders, Inc., 93 N. J. Super. 123, 133 (App. Div. 1966). The judicial function therefore is a mechanical one. The trial court is not concerned with the worth, nature or extent of the evidence, but only with its existence. Dolson, supra, 55 N. J. at 6. As the trial court is bound by these standards below, so too are we on appeal. Harr v. Allstate Insur. Co., 54 N. J. 287, 292 (1969).

Defendant contends that the hole which plaintiffs claimed was the one which caused defendant Wissing to swerve his car was not the particular hole identified by Wissing at trial. Phillips contends that no one saw that particular hole on the night of the accident, that it was only identified by police officer Boss on the day after the accident and after Wissing, while in the hospital, described its location to him. Defendant points out that the dimensions of the hole were those of a rectangle—two feet long, seven inches wide and six inches deep. Such regular dimensions, it is argued, are not those of a “pot hole” caused by subsurface damaging influences, but rather was “man-made.” It is further said that there was evidence that the hole which caused Wissing to swerve was a considerable distance north of the scene of the accident. However, Wis-sing, though at first showing some hesitation, did circle the hole on Exhibit PK13, identifying it as the hole which caused him to swerve. Officer Boss said that while it was rectangular in shape it was “not a perfect rectangle.” Thus, defendant’s arguments as to the identity of the offending hole create only issues of fact. They were for the jury to resolve. Apparently it did so, in favor of plaintiffs. And, since there was sufficient credible evidence to support the finding, we may not differ.

Defendant contends that the controlling legal doctrine as to subsurface waters is that of “reasonable use,” as applied in Meeker v. East Orange, 77 N. J. L. 623, 638 (E. & A. 1909). We hold to the contrary. The “reasonable use” doctrine was repudiated by our Supreme Court in Gellenthin v. J. & D., Inc., 38 N. J. 341 (1962), insofar as it may apply to a situation where a landowner creates an unreasonable risk of harm to travelers on a public sidewalk or other parts of a public highway. The court retained the “reasonable use” rule only as between neighboring landowners. Justice Proctor, speaking for the court, said:

It follows from the above discussion that the “reasonable use” rule is a tort principle which is applicable to disputes between neighboring landowners. But where, as here, the action is between a landowner and a pedestrian who suffers injury through an obstruction of the public sidewalk, the general principles of negligence law must be applied. Therefore, we hold that if a landowner constructs or maintains drain pipes, leaders or similar artificial conduits of surface water in such a manner that the water thus collected is so discharged that it reaches the public sidewalk and there freezes, making the sidewalk dangerous to travelers, then he is chargeable with negligently creating an unreasonable risk of injury. And if as a proximate result of such risk a traveler, while rightfully upon the sidewalk and exercising due care, suffers injury, the landowner is liable, [at 352-353]

While Gellenthin involved a nuisance on a public sidewalk, it is clear that the opinion regarded the sidewalk as part of the public highway and that the stated rule would equally apply to a nuisance or dangerous condition created in any part of the highway. We also recognize that Gellenthin referred to surface waters whereas here we are dealing with subsurface waters. Counsel for defendant sees no relevant distinction and neither do we. We therefore hold that the rule enunciated in Gellenthin is applicable here, and the “reasonable use” rule is not appropriate.

Defendant next contends that there was no evidence of negligence on its part. Again the applicable rule is given to us in Gellenthin, i e., that if a landowner constructs or maintains “drain pipes * * * or similar artificial conduits of surface [-sic] water in such a manner that the water thus collected is so discharged that it reaches the public sidewalk * * * making the sidewalk dangerous to travelers, then he is chargeable with negligently creating an unreasonable risk of injury * * Gellenthin at 353; emphasis added. As we have said above, and as Gellenthin recognizes, the rule is applicable to any part of the public highway or street. See Gellenthin at 352, and its citations of Christine v. Mutual Grocery Co., 119 N. J. L. 149, 152 (E. & A. 1937), and Saco v. Hall, 1 N. J. 377 (1949), referring to the public’s right to use the “street” for safe travel. Likewise it applies, as we hold, to subsurface waters as well as to surface waters.

The French drain here involved consisted of an underground trench filled with stone and gravel. There were six inches of gravel on top of the drain. In this case the drain ran down the slope of the driveway on defendant’s property to a point within three feet of the curb, running along Route 34, at which point it was directed in a general northerly direction parallel to the roadway, and ultimately was to lead to a culvert into which the water was to empty.

Plaintiffs’ expert, Posnak, a civil engineer, qualified from experience to testify concerning drainage methods, testified that a French drain is a “very poor system” for removing water, that it is “not efficient,” that “they” are not “generally accepted” and “they’re not being used.” He opined that they have a tendenc}' to clog and “once they begin to clog they lose all their use.” The gravel on top of the drain will absorb the water “that is being diverted by the French drain and the area will begin to swell. The water will start to follow a downward course toward the curb.” Finally Posnak was asked “what part the French drain in its location played in the breaking up underneath the roadway so this hole developed?” His answer was:

From looking at the drawings liere the French drain is right adjacent to the curb line, runs parallel to it, and the French drain, the purpose of the French drain is to bring water to it and then out to the ditch. Now, it accumulated the water within the French drain bringing it closer to the roadbed and this proximity of the water being drawn here would then go under the road. As evidenced by my pictures showing the water coming out of the curb line in the area of the French drain.

Photographs taken at the scene the day after the accident demonstrated a collection of water in front of defendant’s property at the joint between the curb and the roadway. The top of the curb was dry, and the testimony was that the water had been “subsurface” water coming from the property.

We hold that the foregoing proofs were sufficient to create a jury issue as to whether the French drain constructed by defendant had collected the subsurface water and diverted it to the highway, making it dangerous to travelers thereon. If so, defendant was “chargeable with negligently creating an unreasonable risk of injury.” Gellenthin v. J. & D., Inc., supra, 38 N. J. at 353.

The question of proximate cause was likewise for the jury. Therefore defendant’s motion for involuntary dismissal was properly denied. We likewise hold that the verdicts were not against the weight of the evidence. To hold otherwise would be an improper usurpation of the jury’s function.

In addition, defendant contends that the court erred in several aspects of its charge, excerpted from context, and in denying certain of defendant’s requests to charge. Viewing the charge as a whole and in context, we find defendant’s criticism of the charge, and the court’s refusal to grant defendant’s requests, to be without merit.

Lastly it is contended that the verdicts in favor of the plaintiffs were excessive. We have considered the extent of the injuries, the special damages and also the proofs with respect to the death claim as to Donna Knapp. While generous, they are not excessive so as to evidence bias, mistake, passion, prejudice or sympathy.

The judgments in favor of plaintiffs are affirmed.


author: Pee 0 Uriah.

text:
    WILLIAM M. MORGAN, COMPLAINANT-RESPONDENT, v. WILLIAM SASLAFF AND DAVID E. FEINSTEIN, RESPONDENTS, AND GEORGE F. ROBERTS, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 6, 1973
    Decided February 27, 1973.

      Before Judges Kolovskt, Matthews and MoGowan.

      Mr. John A. Yacovelle, Jr. argued the cause for appellant.

      Mr. 8laven B. Bolson, Deputy Attorney General, argued the cause for respondent New Jersey Eeal Estate Commission (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. Stephen 81eillman, Assistant Attorney General, of counsel).
   Pee 0 Uriah.

Following hearings before the New Jersey Eeal Estate Commission on charges brought against appellant, a licensed real estate broker of the State of New Jersey, he was found guilty of conduct demonstrating incompeteney and unworthiness, in violation of N. J. S. A. 45:1 o-17. As a result of such finding, his broker’s license was ordered suspended for three months. lie now appeals, seeking reversal of the Commission’s action.

Two grounds are urged by appellant, the first being that the finding of the Commission should be reversed since the finding is not supported by substantial evidence and was insufficient to constitute “incompetence and unworthiness.” The second ground urged is that there should be a reversal because the decision of the Commission was rendered by less than a majority of the five members of the Commission.

The second ground urged is without merit. Although only three of the Commissioners out of a total oí five heard the matter, two out of the three rendered the judgment. Thus, it is clear that there was a legal quorum present, that is a majority of the total members, and that a majority of that quorum could validly act. This was the rule at common law and still is the rule in this State, absent a pertinent statute otherwise providing, and there is none. Brown v. District of Columbia, 127 U. S. 579, 8 S. Ct. 1314, 32 L. Ed. 262 (1888); Benintendi v. Kenton Hotel, 294 N. Y. 112, 60 N. E. 2d 829, 831 (Ct. App. 1945); Florham Park v. Dept. Health of N. J., 7 N. J. Misc. 549, 550 (Sup. Ct. 1929). The eases relied upon by appellant in support of his position to the contrary are not applicable. Taylor v. New Jersey Real Estate Comm’n, 136 N. J. L. 18 (Sup. Ct. 1947) is not in point as the hearing there was held before less than a quorum (two members out of five), and one of the commissioners attempted to decide the case. McAlpine v. Garfield Water Comm’n, 135 N. J. L. 497 (E. & A. 1947); Mackler v. Board of Education, Camden, 16 N. J. 362 (1954), and Asbury Park v. Dept. of Civil Service, 17 N. J. 419 (1955), all deal with the problem of members of the Commission not present at all the hearings wrongly participating in the result. Eisberg v. Ciffside Park, 92 N. J. L. 321 (Sup. Ct. 1919), has to do with the question of whether there was a fair trial when one of the councilmen voting had preferred charges and three others had testified against defendant. No such situation is here present or suggested.

The court is of the opinion that the testimony given by the witness Blatt and respondent Eeinstein, if believed by the Commissioners (as it apparently was), constituted sufficient substantial evidence to support the finding of incompetence and unworthiness once the credibility issue had been resolved adversely to defendant.

The scope of review in a ease involving appeal from the New Jersey Real Estate Commission is the same as that for other administrative agencies, and where an administrative agency has acted within its authority, “sympathetic sweep” is given to the rule that its actions will generally not be upset unless there is an affirmative showing that its judgment was arbitrary, capricious or unreasonable, East Paterson v. Civil Service Dept. of N. J., 47 N. J. Super. 55, 65 (App. Div. 1957), and the generally accepted gauge of administrative factual finality is whether the finding is supported by substantial evidence, In re Larson, 17 N. J. Super. 564, 576 (App. Div. 1952); Maple Hill Farms, Inc. v. Div. of N. J. Real Estate Comm’n, 67 N. J. Super. 223, 226-227 (App. Div. 1961). See also Zachariae v. N. J. Real Estate Comm’n, 53 N. J. Super., 60, 62 (App. Div. 1958).

In making its determination, a crucial question before the Commission was, of course the credibility of appellant. The basic issue in that determination was whether appellant knew of the existence of the second contract providing for the payment of $120,000, which was executed between the straw man and the ultimate purchaser, and if he did, whether or not there was a duty to disclose this to his principal, the original owner who had executed a contract with the straw man for a price of $95,000, the appellant having categorically denied any such knowledge. The Commission resolved the question against defendant, apparently choosing to believe the testimony of Martin Blatt, an at-, torney who testified that appellant was party to all negotiations and knew ho was going to share in the commissions in eonnection with the second contract. Blatt further testified that he was in fact retained by both the appellant and respondent Eeinstein, who was also found guilty of the same charge.

Accordingly, the action of the Commission finding incompetence and unworthiness, and the resultant suspension of license imposed thereunder, is affirmed.


author: Labeeoque, P. J. A. D.

text:
    IN RE DEPARTMENT OF INSTITUTIONS AND AGENCIES DECISION ON OBJECTIONS TO PROPOSED DEPARTMENT RULE WHICH WAS PUBLISHED AT 3 NJR 134 UNDER THE MEDICAL ASSISTANCE AND HEALTH SERVICES ACT. NJSA 30:4D-7(n).
    Superior Court of New Jersey Appellate Division
    Argued January 9, 1973
    Decided March 6, 1973.

      Before Judges Labkecque, Kolovsky and Matthews.

      Mr. William II. Shell argued the cause for appellant Essex County Welfare Board (Mr. Joseph E. Cohen, attorney).

      Mrs. Virginia Long Annich, Deputy Attorney General, argued the cause for respondent Department of Institutions and Agencies (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Labeeoque, P. J. A. D.

The Commissioner of the Department of Institutions and Agencies (Commissioner) gave notice of his intention to promulgate a rule governing payments to county welfare boards for eligibility investigations pursuant to the Medical Assistance and Health Services Act (Medicaid Act), N. J. S. A. 30 :4D-1 et seq. Objections to the proposed rule were received and a hearing was held before the Acting Commissioner of the Department, in which those objecting to the proposed rule participated. On January 21, 1972 the Acting Commissioner filed his decision in which he concluded that the proposed rule complied with the letter and intent of the applicable statutes and should be adopted. It was formally adopted on Eebruary 2, 1972 as N. J. A. C. 10:49-l.l. The present appeal by the Essex County Welfare Board (Board) followed.

Appellate raises two points as follows: (1) “The reimbursement for investigating and determining eligibility provisions of N. J. A. C. 10 :49-l.l violate the intent of the medical assistance program (N. J. S. A. 30:4D-1 et seq.) and therefore were beyond the power of the Department of Institutions and Agencies to promulgate”; (2) “The regulation in question conflicts with 42 U. S. C. A. Section 1396(a)(2) [1396a(a) (2)] and therefore is void.” We find them to be without merit.

Pursuant to Title XIX of the Social Security Act, which enabled the states to take advantage of partial federal funding of a state administered medical assistance program, 42 U. S. C. A. § 1396 et seq., the Hew Jersey Legislature enacted the act setting up Medicaid, L. 1968 c. 413, N. J. S. A. 30:4D-1 et seq. The intent of the act was stated to be:

It is the intent of the Legislature to make statutory provision which will enable the State of New Jersey to provide medical assistance, insofar as practicable, on behalf of persons whose resources are determined to be inadequate to enable them to secure quality medical care at their own expense, and to enable the State, within the limits of funds available for any fiscal year for such purposes, to obtain all benefits for medical assistance provided by the Federal Social Security Act as it now reads or as it may hereafter be amended, or by any other Federal act now in effect or which may hereafter be enacted. [N. J. S. A. 30:4D-2]

The Department of Institutions and Agencies was designated as the single state agency to administer the act. N. J. S. A. 30:4D—3 and 5.

Title XIX makes appropriations available to those states which submit and have approved by the Secretary of Health, Education and Welfare plans for medical assistance which meet federal standards. 42 U. S. C. A. § 1396. One requirement is that the state plan include as persons eligible for medical assistance those who are recipients of aid under the .federally established “categorical assistance” programs, 4.e., (1) old age assistance, 42 U. S. C. A. § 301 et seq.; (2) assistance for the permanently and totally disabled, 42 U. S. C. A. § 1351 et seq.; (3) assistance for the blind, 42 77. 8. 0. A. § 1201 et seq., and (4) assistance for dependent children, 42 U. S. C. A. § 601 et seq. In compliance therewith, the New Jersey Medicaid Act includes in the definition of a “qualified applicant” for Medicaid a resident of the State who it is determined needs medical care and services as provided under the act, and who is a recipient of old age assistance, N. J. S. A. 44:7-1 et seq., assistance for the permanently and totally disabled, N. J. S. A. 44:7-38 et seq., assistance for the blind, N. J. S. A. 44:7-43 et seq., or assistance for dependent children, N. J. S. A. 44:10-1. el seq., N. J. S. A. 30:4D-3(f).

The federal act also requires that the state medical assistance plan:

[P'lrovicle for financial participation by tbe State equal to not less than 40 per centum of the non-Federal share of the expenditures under the plan with respect to which payments under section 1396b of this title are authorized by this subchapter; and, effective July 1, 1969, provide for financial participation by the State equal to all of such non-Federal share or provide for distribution of funds from Federal or State sources, for carrying ont the State plan, on an equalization or other basis which will assure that the lack of adequate funds from local sources will not result in lowering the amount, duration, scope, or quality of care and services available under the plan. [42 Ü. 8. O. A. § 1396a (a) (2)]

To the extent here pertinent part (b) of section 1396 of 42 U. S. C. A. provides for payment by the Federal Government of at least 50% of the cost of actual medical assistance and 75% of the cost of administration, leaving to the state the burden of paying 50% (or less) of the cost of actual health care and 25% of the cost of administration. The New Jersey Medicaid plan provides that state funds be utilized to pay all non-federal costs. As approved on December 31, 1969 the plan provides, in pertinent part:

Under general policies established by the State Board of Control the commissioner is authorized and empowered to issue, or to cause to be issued through the Division of Medical Assistance and Health Services all necessary rules and regulations and administrative orders, and to do or cause to be done all other acts and things necessary to secure for the State of New Jersey the maximum Federal participation that is available with respect to a program of medical assistance, consistent with fiscal responsibility and within the limits of funds available for any fiscal year, and to the extent authorized by the medical assistance program plan; to adopt fee schedules with regard to medical assistance benefits and otherwise to accomplish the purposes of this act, including specifically the following:
i\( s¡s *¡s sjs }■< íj' sfc
n. To contract with and to pay the appropriate county welfare boards for investigating and determining whether applicants for benefits under this act are eligible therefor under the standards prescribed by the department. [N. J. S. A. 30:4D-7 (n) ]

It was in response to inquiries as to the extent of the reimbursement to be made to county welfare boards for eligibility investigations that the Commissioner promulgated the rule here involved. Although there was some uncertainty as to the exact wording of the rule as finally promulgated, it was agreed, subsequent to oral argument, that the rule provides as follows:

The Division of Medical Assistance and Health Services shall represent the Commissioner for purposes of contracting with and paying county .welfare boards for investigating and determining whether applicants for benefits under the Health Services Program are eligible therefor, however, payment to county welfare boards for investigations is limited to payments for investigations made solely and exclusively for the purpose of determining eligibility for medical assistance nnder the Medical Assistance and Health Services Act.
Investigations by county welfare boards for purposes other than described herein are outside the purview of IV. J. S. A. 30:4D-7n [30:4D-7, subd. n], and consequently not reimbursable under the Medical Assistance and Health Services Act. [Emphasis added]

In rendering Ms decision upholding the rule the Acting Commissioner held:

Medical assistance provided to individuals under the Health Services Program is merely incidental to and a benefit of one’s eligibility as a “categorical assistance” recipient. No application for medical assistance need be made where the applicant applies for a county grant. The investigation made by the county welfare board is made pursuant to already established procedures under applicable welfare legislation and is appropriately funded. Any payment by the Title XIX (Medicaid) agency for this type of work function would not only be a violation of HEW Regulations but would clearly be outside the purview of Chapter 413. The New Jersey Legislature has promulgated legislation under which county welfare boards have established procedures relating to eligibility determinations for categorical assistance programs. Chapter 413 cannot be construed to require payment to county welfare boards from the Title XIX dollars for services which are already required to be performed by the welfare boards pursuant to other applicable legislation. Clearly, therefore, only where the county is acting as agent for the Title XIX agency solely and is not engaged in work activity already required to be performed pursuant to other law can reimbursement be made. Any other interpretation such as proposed by the opponents to the proposed regulation would, I believe, create a subsidy to the counties for work already required, and be clearly contrary to the intent and letter of State and Federal law.

Public welfare in New Jersey is administered through various avenues, the best known of which are the categorical assistance programs referred to above. With respect to an application by a client for a categorical assistance grant, the county welfare board is charged with determining his eligibility for such aid. The overall cost of this program, including both assistance expenditures and administrative overhead, is shared jointly by the federal, state and county governments. In the ease of Medicaid, as noted, snch costs are shared only by the federal and state governments. While the Commissioner is given power to contract with county welfare boards for investigating and determining whether applicants for benefits under Medicaid are eligible therefor under the standards prescribed by the Department, no formal contract has yet been entered into, and the rule in question would appear to govern the tj^pe of services for which payments are to be made to welfare boards in connection with administration of the Medicaid program.

Appellant cites no case, and we know of none, in which a rule similar to the present one has been invalidated. Wo are, of course, mindful that the Commissioner’s action is entitled to the benefit of the customary rebuttable presumption of validity and regularity afforded to administrative regulations generally. Motyka v. McCorkle, 58 N. J. 165, 181 (1971).

As we read appellant’s point one, its main challenge to the rule under reveiw is predicated upon the contention that since subsection (n) requires the State to reimburse county welfare boards through the Medicaid program for eligibility investigations, and since Medicaid benefits flow from eligibility for categorical assistance, the cost of any investigation to determine eligibility for categorical assistance should be assumed by Medicaid. We disagree. To the extent here pertinent subsection (n) mandates only that the Commissioner pay for investigating and determining whether applicants for benefits “under this act are eligible therefor under the standards prescribed by the department.” Categorical assistance recipients are automatically eligible for benefits under the act. N. J. S. A. 30:4D—3 (f) (1). In a given case, the additional issue of whether an eligible applicant is in need of medical care and services, N. J. S. A. 30:4D-3(f), under the standards prescribed by the Department, may or may not require for its resolution an investigation and determination for which the statute calls for payment by Medicaid.

The nub of appellant’s argument centers upon a group of Medicaid recipients, alleged to number about 1,000, who, although found to be eligible for categorical assistance, receive only a nominal monthly allowance of $9 to $13 for clothing or other incidentals. It is suggested that for the most part these applications are prompted by the desire of the client to qualify for Medicaid. We find no cause to differentiate between a client receiving full categorical assistance and one receiving only partial assistance. In each ease the grant made is in accordance with the client’s determined needs. ^Neither type of assistance may bo granted without the requisite investigation and determination of eligibility. Such action would be required whether or not the client also intended to seek Medicaid benefits; it is prescribed under Title 44 legislation which preceded Medicaid and is separately and adequately funded. See East Orange v. McCorkle, 99 N. J. Super. 36, 41-43 (App. Div. 1968). Whether or not an applicant for categorical assistance is seeking a Medicaid grant, the investigation to determine his eligibility for such assistance is not the responsibility of Medicaid. Funds allocated to that program may not be thus diverted. To hold otherwise would be to relieve the counties of payment of their fair share of the cost of categorical assistance.

We are likewise convinced that the regulation in question does not conflict with 42 U. S. C. A. § 1396a(a) (2). While that section requires that the medical assistance plan be completely funded, the New Jersey plan provides that state funds will be utilized to pay all of the non-federal costs incurred. What we have already said with reference to the asserted conflict between the regulation and N. J. S. A. 30:4D-7 likewise applies to this contention.

Our conclusion in this regard is not to be construed as holding that where a single investigation of a welfare client is conducted for the purpose of determining both his eligibility for categorical assistance and for Medicaid, the latter program should not bear the cost of such portion of the investigation as is required to be made to- determine if the client is in need of the services furnished by Medicaid. It is conceded by the Attorney General in his brief that “If appellant has legitimately incurred expenses not connected with eligibility determinations, which expenses are solely attributable to the administration of the Medicaid program and would not exist in the absence thereof, appellant should submit substantiated requests for reimbursement to the Division. These requests will be reviewed and considered * *

By reason of the foregoing, appellant’s attack on regulation N. J. A. C. 10:49-l.l must be rejected and the Commissioner’s action in adopting it is affirmed.


author: Laknteb, A. J. S. C.,

text:
    JOSEPHINE DWYER, PLAINTIFF-RESPONDENT, v. SKYLINE APARTMENTS, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1973
    Decided March 8, 1973.

      Before Judges Carton, Mintz and Larner.

      Mr. Herbert Klein argued the cause for appellant (Messrs. Kreiger and Klein, attorneys).

      Mr. Robert V. Bchauer argued the cause for respondent (Loftus, Schauer and Ouozzi, attorneys).
   The opinion of the court was delivered by

Laknteb, A. J. S. C.,

Temporarily assigned. Defendant appeals from a judgment entered for plaintiff in the sum of $1,500 by a judge of the Bergen County District Court after a trial without a jury.

Plaintiff was a tenant for 15 years in a multiple-family garden apartment development owned by defendant. On February 8, 1971 she was in the bathtub of her apartment, and as she turned on the hot water faucet the entire “fixture came out of the tile,” as a result of which scalding water gushed out of the pipe causing burns to various parts of her body.

The testimony in the case was limited to that of plaintiff, who described the faucet after it came out of the wall as “very corroded.” However, she had no idea of its condition prior to the accident since the corrosion was on the portion of the faucet which was in the wall, and as a consequence no complaint was ever made to the landlord. It was in essence a latent defect unknown to the tenant, unknown to the landlord and not discernible on reasonable-inspection.

The trial judge found for plaintiff despite the absence-of actual or constructive notice of the condition by the: landlord. He concluded that the landlord is strictly liable-because of its contractual responsibility flowing from a continuing implied covenant of habitability. In effect, he concluded that negligence concepts are no longer viable in personal injury claims by tenant versus landlord arising out of the condition of the tenant’s premises.

A brief review of some of the precedents controlling landlord-tenant liability is in order.

A landlord of a multiple-family dwelling has the duty to maintain all parts of the structure and equipment in good repair, including the premises within the confines of the tenant’s apartment. Michaels v. Brookchester, Inc., 26 N. J. 379 (1958); Altomare v. Cesaro, 70 N. J. Super. 54 (App. Div. 1961). This duty as it applies to the tenant’s premises came about through the rejection of the caveat emptor theory and the application of the Tenement House Act (N. J. S. A. 55:1-1) now known as Hotel and Multiple Dwelling Act (N. J. S. A. 55:13A-1). Ibid.

Eurthermore, our courts have consistently held that regardless of the application of the statute, the landlord has the duty to maintain and repair those facilities in or out of the tenant’s premises which are an integral part of the equipment under his control, such as water pipes, heating pipes and radiators, plumbing fixtures, electrical equipment and the like. Coleman v. Steinberg, 54 N. J. 58 (1969); Conroy v. 10 Brewster Ave. Corp., 97 N. J. Super. 75 (App. Div. 1967); Altomare v. Cesaro, supra; Restatement, Torts 2d, §§ 360 and 361 (1965).

Hence, under either the theory of the landlord’s obligations under the Hotel and Multiple Dwelling Act or the theory of control of the water supply system and all its parts, defendant in this case unquestionably had the basic duty to maintain and repair the piping and faucets in and leading to plaintiff’s bathtub.

However, the nexus between duty and liability is proof of negligence. Negligence in this context requires not only proof of the condition which caused the injury but that the condition was known or should have been known by the landlord prior to the occurrence, so that he had an opportunity to correct it.

Since his duty is not to insure the safety of tenants but only to exercise reasonable care, a landlord is liable only for injurious consequences to a tenant by reason of defects “of which he has knowledge or of defects which have existed for so long a time that * * * he had both an opportunity to discover and to remedy.” Francisco v. Miller, 14 N. J. Super. 290, 296 (App. Div. 1951); Coleman v. Steinberg, 54 N. J. 58, 63 (1969); Ellis v. Caprice, 96 N. J. Super. 539, 547 (App. Div. 1967); Mikrut v. Pellow, 65 N. J. Super. 14, 18 (App. Div. 1961), certif. den. 34 N. J. 464 (1961); Schnatterer v. Bamberger & Co., 81 N. J. L. 558 (E. & A. 1911); Restatement, Torts 2d, §§ 360 and 361 (1965); Harper & James, Law of Torts, % 27.17; Prosser, haw of Torts (3d ed. 1964), § 63.

This basic element of actual or constructive notice in the area of landlord liability arising out of the duty to maintain and repair rented premises is ingrained in our law as a necessary prerequisite to a finding of negligence— the failure to exercise reasonable care. An exception of course exists in cases where the landlord created the condition. Coleman v. Steinberg, supra.

The proofs at trial establish beyond dispute that the defect was a latent one not known or reasonably discoverable by the defendant. Hence, under existing legal principles the landlord cannot be held liable for the unfortunate occurrence. The mere happening of the event resulting from a latent defect followed by injurious consequences is not sufficient in itself to impose liability unless the foregoing concepts of the law of negligence have been rendered obsolete by the current advances in the law dealing with the landlord-tenant relationship.

The trial court and the plaintiff point to the landmark ease of Marini v. Ireland, 56 N. J. 130 (1970), as indicative of a redefinition of the liability of a landlord for injuries sustained by a tenant. It is contended that the logical extension of the language in that opinion requires the conclusion that proof of negligence with its traditional requisites is no longer necessary for recovery.

In Marini the Supreme Court considered the duties of the landlord and the legal consequences thereof in the context of a summary action for dispossess in the County district court. It held that the landlord should be held to an implied covenant against latent defects or an implied covenant of habitability. See also, Reste Realty Corp. v. Cooper, 53 N. J. 444, 454 (1969). In further articulation of this undertaking the court in Marini stated:

* * * Actually it is a covenant that at the inception of the lease, there are no latent defects in facilities vital to the use of the premises for residential purposes because of faulty original construction or deterioration from age or normal usage. And further it is a covenant that these facilities will remain in usable condition during the entire term of the lease. In performance of this covenant the landlord is required to maintain those facilities in a condition which renders the property livable. [56 N. J. at 144]

Prom this premise the court reached the conclusion that this covenant of habitability and the tenant’s covenant to pay rent were mutually dependent. Hence, it was held that if a landlord fails to make repairs of vital facilities necessary to maintain the premises in a livable condition, the tenant may do so and deduct the cost thereof from future rents. Recourse to such self-help, however, “must be preceded by timely and adequate notice to the landlord of the faulty condition in order to accord him the opportunity to make the' necessary replacement or repair.”

The consequence of this holding was that the tenant “has only the alternative remedies of making the repairs or removing from the premises upon such a constructive eviction.”

In essence, Marini only concerns itself with the pressing social problems involved in the dilemma of a tenant faced with premises not fit for habitation and the inability to assert a defense to an action in dispossess under the former technical procedures applicable to such a summary proceeding. Marini and the subsequent cases of E. & E. Newman, Inc. v. Hallock, 116 N. J. Super. 220 (App. Div. 1971); Berzito v. Gambino, 119 N. J. Super. 332 (App. Div. 1972), certif. granted 62 N. J. 67 (1972); Sprock v. James, 115 N. J. Super. 111 (App. Div. 1971), and Academy Spires, Inc. v. Brown, 111 N. J. Super. 477 (Cty. D. Ct. 1970), spell out a just and practical approach to the protection of the rights of tenants vis-a-vis landlords in the sphere of eviction and its dire social consequences.

The development of this new “bill of rights” for tenants, however, does not necessarily lead to the imposition of liability in tort on a landlord bottomed upon a concept of a continuing warranty of habitability. We are of the opinion that the language of the Supreme Court in the context of the narrow issue in Marini was not intended to overturn existing principles of law applicable to tort actions for personal injuries by tenants versus landlords. If the law is to be changed in that direction through a major extension of the rationale expressed in Marini, such determination is within the province of the Supreme Court, not within the ambit of power of the trial court or this intermediate appellate court. State v. Moffa, 79 N. J. Super. 425, 432 (App. Div. 1963), aff'd 42 N. J. 258 (1964).

It is also argued that the application of the strict liability doctrine to a seller and manufacturer of a product in Henningsen v. Bloomfield Motors, 32 N. J. 358 (1960), to a mass builder vendor of real estate in Schipper v. Levitt & Sons, Inc., 44 N. J. 70 (1965), and to a lessor of a motor vehicle in Cintrone v. Hertz Truck Leasing, 45 N. J. 434 (1965), when considered in the context of the rationale in Marini, completes the circle so as to impose strict liability on every vendor, distributor and lessor of personalty or realty engaged in a commercial enterprise. Such a conclusion is unwarranted. The underlying reasons for the enforcement of strict liability against the manufacturer, seller or lessor of products or the mass builder-vendor of homes do not apply to the ordinary landlord of a multiple family dwelling.

Such a landlord is not engaged in mass production whereby he places his product—the apartment—in a stream of commerce exposing it to a large number of consumers. He has not created the product with a defect which is preventable by greater care at the time of manufacture or assembly. He does not have the expertise to know and correct the condition, so as to be saddled with responsibility for a defect regardless of negligence.

An apartment involves several rooms with many facilities constructed by many artisans with differing types of expertise, and subject to constant use and deterioration from many causes. It is a commodity wholly unlike a product which is expected to leave the manufacturer’s hands in a safe condition with an implied representation upon which the consumer justifiably relies.

The tenant may expect that at the time of the letting there are no hidden dangerous defects known to the landlord and of which the tenant has not been warned. But he does not expect that all will be perfect in his apartment for all the years of his occupancy with the result that his landlord will be strictly liable for all consequences of any deficiency regardless of fault. He expects only that in the event anything goes wrong with the accommodations or the equipment therein, the landlord will repair it when he knows or should know of its existence; and that if injury results liability will attach.

To apply the broad brush of strict liability to the landlord-tenant relationship in a dwelling house would impose an unusual and unjust burden on property owners. It would mean that the landlord would be faced with liability for every injury claim resulting from any untoward condition in every cranny of the building, whether it is reasonably foreseeable or not. How can a property owner in any practical sense prevent a latent defect or repair it when he has no way of detecting it? And if he cannot prevent the defect or the occurrence, why should he be liable?

The foregoing queries are posed simply to demonstrate that the policy considerations underlying the adoption of strict liability in areas already determined by the Supreme Court are non-existent in the landlord-tenant relationship involved herein. Neither justice nor reason dictate the advisability of a change in landlord-tenant law which would permit recovery for personal injuries without proof of deviation from the standard of reasonable care.

The judgment for plaintiff is reversed with directions to enter judgment for defendant.


author: Fritz, J. A. D.

text:
    GEORGE VILLANOVA AND LUCY VILLANOVA, HIS WIFE, PLAINTIFFS-APPELLANTS, v. AMERICAN FEDERATION OF MUSICIANS, LOCAL 16, ESSEX COUNTY PARK COMMISSION, CITY OF NEWARK AND MUSIC PERFORMANCE TRUST FUNDS OF RECORDING INDUSTRIES, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 13, 1973
    Decided March 9, 1973.
    Before Judges Got/dmann, Fbitz and Lynch.

      Mr. Frank A. Paglianite argued the cause for appellants (Mr. Dante P. Mongiardo, on the brief).

      Mr. Richard B. Livingston argued the cause for respondent Essex County Park Commission (Messrs. Brajf, Liivak, Friag, Wortmann & Harris, attorneys).
   The opinion of the court was delivered by

Fritz, J. A. D.

Plaintiffs appeal from the entry of summary judgment in favor of defendant Essex County Park Commission. A prior proceeding not here concerned resulted in a dismissal in favor of defendant City of Newark. Defendant American Federation of Musicians is the employer against whom a workmen’s compensation claim has been filed.

The facts are simple and, for the purposes of the motion, undisputed.' George Villanova is a musician and as such was employed to participate in the giving of a concert on the premises of the Essex County Park Commission. No admittance fee was charged for the concert. Plaintiff claims he fell over “boulders and debris” as he was approaching the bandstand, that the presence of this impediment was the result of negligence on the part of the Essex County Park Commission, and that as a consequence he sustained injuries.

Defendant moved for judgment on the ground that it was immunized from liability by the provisions of N. J. S. A. 2A:42A-1 et seq. The trial judge agreed and dismissed the action. We are of the opinion that the determination was incorrect.

The matter is one of first impression in New Jersey. The issue can be simply posited in terms of whether it was the intent of the Legislature in enacting the statute in question to include a band concert within the activities protected thereby.

The predecessor statute, repealed by the present enactment, simply immunized landowners of agricultural lands or woodlands from responsibility for accidental personal injury suffered in the course of hunting or fishing. L. 1962, c. 107. Senate Bill No. 325, introduced on January 22, 1968, sought to expand the immunity provided by relieving owners, lessees or occupants of premises from a duty to keep the premises safe in connection with hunting, fishing, trapping, hiking, horseback riding or training of dogs. A substitute bill was offered shortly thereafter and enacted in the form in which the statute now appears. L. 1968, c. 73. Defendant urges that the expansion of Senate Bill No. 325 to include “additional activities” and the phrase “other outdoor sport, game and recreational activity” manifests an intent to bring within the ambit of the statute recreational activities as they are defined in a separate statute, N. J. S. A. 13 :1B-15.2, and in some dictionaries as forms of play, amusement, diversion or relaxation. We think this approach employs too broad a brush.

Defendant, in its brief, disparages employment of the rule of ejusdem generis by which the connotation of general words may be restricted to a sense analogous to the specific word, or the broader noscitur a socids, on the basis that, “ “Recreational activity’ is not a doubtful phrase or ambiguous in meaning.” Irrespective of the ambiguity vel non of that phrase, we believe that the legislative purpose is unclear, and that under such circumstances the rules to which we have referred may serve as helpful guides in ascertaining the legislative intent. See Germann v. Matriss, 55 N. J. 193, 220-222 (1970).

Generally speaking, the activities specifically enumerated by the Legislature are more physical than not; are of a nature for the most part typically requiring the outdoors; and are not on the whole “spectator sports,” but rather activities in which the individual using the land is himself involved. The statute thus viewed, it appears to us that in the particular circumstances of the case before us, involving as they do injury to a musician in a band concert, the Legislature did not intend the immunity provided by this statute to apply.

Reversed. No costs.


author: JBjsciiofj?, J. S. 0.

text:
    MARY R. OBST, PLAINTIFF, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ET ALS., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 1, 1973.

      Mr. Lawrence P. Urban for plaintiff Mary R. Obst (Messrs. Skusted and Urban, attorneys).

      Mr. Edgar E. Moss, II for defendant State Farm Mutual Automobile Insurance Company {Messrs. Moss and Powell, attorneys).

      Mr. Michael D. Capizola for defendant Raymond Marini (Shapiro, Brotman, Eisensial and Capizola).

   JBjsciiofj?, J. S. 0.

This declaratory judgment action seeks the interpretation of an uninsured motorist endorsement to a certain policy of automobile liability insurance.

The facts are as follows.

On February 21, 1970 plaintiff Mary Obst was a passenger in a motor vehicle owned and operated by her husband Charles Obst. They were returning home in the early morning hours from a visit to friends. Mary Obst worked night work, was tired and had dozed off. She was seated in the front seat and was suddenly awakened when she was thrown forward to the floor of the car. She had no knowledge concerning the reason for or the facts causing this incident to occur.

Her husband, who was the driver, provided the only testimony concerning the happening of the incident. He testified he was proceeding on Black Horse Pike within the speed limit and saw in his rear view mirror the lights of a car approaching rapidly. The operator of this ear overtook and passed him, cut in front of Obst sharply and applied his brakes. When Obst saw the brake lights go on, he applied his brakes, skidded and turned to the left, bringing his car to an abrupt halt. There was no contact between the two vehicles. The other vehicle continued on its path and was never identified. It left the scene. As a result of the sudden application of brakes, plaintiff Mary Obst was thrown forward into the dashboard.

She sustained no outward signs of injury. The next day her eye was swollen shut, and when the swelling went down in a few days it was observed that she had no vision in the eye. Medical attention was sought for the injury for the first time on February 24, 1970. A series of hospitalizations followed, with the end result being the loss of the eye.

Charles Obst testified that since there was no contact with the other car and1 no immediate signs of injury, no report of the incident was ever made to the police. There were no witnesses to the incident.

The incident was reported to defendant State Farm Mutual Automobile Insurance Company by plaintiff at the suggestion of her treating physicians on February 24, 1970.

Plaintiff’s policy of insurance was issued by defendant on May 2, 1968 and was effective until October 10, 1968. It was maintained in effect thereafter by payment of semi-annual premiums and was in effect on the date the accident occurred. The policy carries limits of $20,000-$40,000 and contains coverage for bodily injury, property damage and collision insurance. The policy also contained, as insuring agreement III, uninsured automobile coverage.

The exact terms of the endorsement attached to the policy are unimportant, for it is agreed by all parties that the provisions of this uninsured motorist coverage, in effect at the time the accident occurred, was the form of the endorsement promulgated and approved by the Commissioner of Insurance on April 2, 1969.

Plaintiff made claim against defendant State Farm under the uninsured motorist endorsement. State Farm has denied liability, contending there is no coverage.

Plaintiff has also given timely notice of the accident to the Unsatisfied Claim and Judgment Fund Board (hereinafter board), and that Board has also denied liability to •plaintiff on the ground that the policy of State Farm provides coverage for the claim. Plaintiff, therefore, seeks a declaration of her rights either against State Farm under the policy in question or the Board, or either of them.

The pertinent portions of the uninsured motorist endorsement are as follows:

The company will pay all sums which the insured * * * shall be legally entitled to recover * * caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle s’ * *
A “hit-and-run vehicle” is defined to mean (i) a highway vehicle which causes an accident resulting in bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident, or (ii) a highway vehicle which without physical contact with the insured or with a vehicle which the insured is occupying at the time of the accident causes bodily injury to an insured arising out of an accident in New Jersey, provided:
(a) there cannot be ascertained the identity of either the operator or owner of such highway vehicle; and
(b) the insured or someone on his behalf shall have reported the accident within 48 hours to a i>olice, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and
(e) at the company’s request, the insured or his legal representative makes available for inspection the vehicle which the insured was occupying at the time of the accident; and
(d) with respect to subdivision (ii) the facts of such accident can be corroborated by competent evidence other than the testimony of any person having a claim under this or any other similar insurance as the result of such accident.

1 find from the testimony and evidence presented that subsection (b), requiring a report to the police within 48 hours, and subsection (d), requiring corroboration, have not been complied with. It is on that basis that defendant State Farm has denied liability.

In answer to that contention defendant Board contends that the uninsured motorist endorsement is to be interpreted as broadly as the protection provided by the Fund law and accordingly contends subsection (b) and (d), above quoted, are inapplicable and State Farm is liable.

This contention of the Fund is based upon the following facts.

The testimony of Salvatore Capozzi was presented in support of the Fund’s position. He is the manager of the Board and has been manager since 1965. He was assistant manager from 1959 to 1965. The issuance of the uninsured motorist endorsement by insurance carriers was authorized by enactment of L. 1968, c. 385, now found in N. J. S. A. 17:28—1 &t seq.

Capozzi gave his understanding of the legislative history of this act as going back to the early 1960s, at which time the Fund found itself in difficulty with a growing number of claims being presented against the Fund and a limitation of income.

Oapozzi’s testimony concerning his understanding of the legislative history of the act is in accord with the case of Hannan v. Employers Commercial Union Ins. Co., 117 N. J. Super. 485 (Law Div. 1971), wherein it was stated:

The circumstances leading up to the enactment of the two statutes in question (N. J. S. A. 18:28-1.1 and 1.2) is that the Unsatisfied Claim and Judgment Fund was bearing the burden of providing protection to those who were injured by uninsured motorists. According to Exum v. Marrow, 112 N. J. Super. 570, 574 (Law Div. 1970), the evil remedied by the statutory change was the “financial burden relating to claims against uninsured motorists” that was being borne by the Fund.
The court in the above case explained that the plain intendment of the amendment to N. J. S. A. 17:28-l was to relieve the Fund of some of these financial burdens, [at 489]

At that time the Legislature held hearings on the problem and resolved thereafter to eliminate certain classes of claims against the Fund. There were hearings on various proposals in the Spring of 1968. The hearings brought about certain amendments to the Fund law (N. J. S. A. 39 :6-62) and Insurance Law (N. J. S. A. 17:28-1, 1.1, 1.2, L. 1968, c. 385). The law as thus enacted was approved January 2, 1969, effective 90 days thereafter.

Meetings were thereafter held by the Commissioner of Insurance to establish the exact wording of the uninsured motorist coverage endorsement to be approved. Testimony of Capozzi concerning events that transpired at these meetings before the Commissioner was offered by the Fund as being material and relevant to the construction to be given to the endorsement. Over objection this testimony was received and discloses the following facts.

The first meeting that Capozzi attended was on March 24, 1969. The Commissioner of Insurance was present as were many others, including Dan Collins, who was identified as counsel for the Mutual Insurance Rating Bureau which is an association to which State Farm belongs as a member. The meeting was called to discuss the terms of the uninsured motorist endorsement to be effective April 2. No decision was made at that meeting on either the rate to bo charged or the form to be used. A subsequent meeting was held on April 1. Dan Collins was again present, and the Commissioner opened the meeting by stating that only one type of endorsement would be approved. The carriers had submitted a proposal to the Commissioner which did not provide coverage as broad as that provided by the Board. The Board objected to this proposed form.

The rate suggested by the carriers to be charged for the form they proposed was $3 and based on the New York experience. Capozzi testified there were basic differences in the form proposed by the carriers and the Board.

First, the definition of the covered vehicle differed. One covered “highway vehicle,” the other covered “motor vehicle.”

Second, reporting time under the Fund law was 90 days and under the proposed form submitted by the carriers reporting to the police within 48 hours was required as was notice to the carrier.

Third, corroboration was required in hit-run cases under the endorsement and not under the Eund law.

He stated there were other differences.

The Commissioner announced to those then present on April 1 that he would accept the form of endorsement submitted by the carriers because of the time problem then involved and grant a $5 rate for the endorsement.

Capozzi further testified that the Commissioner announced that in exchange for the increase in rate to be allowed there was an accord that the endorsement would be interpreted as broadly as Eund law and would be subsequently rewritten.

Capozzi testified that he was satisfied all present understood and were in accord with the Commissioner’s statement.

It is undisputed that the form of the endorsement effective April 2, 1969 has never been changed.

There was a narrow issue thus presented, that is, what effect does this accord reached in the Commissioner’s office on April 1, 1969 have on the interpretation of the uninsured motorist endorsement?

There are many basic differences in the creation of the Eund on the one hand and the uninsured motorist endorsement on the other. The basic theories underlying both the Unsatisfied Claim and Judgment Eund and the policy endorsements are the same, but the schemes of compensation to an injured party are different. Exum v. Marrow, 112 N. J. Super. 570, 574-575 (Law Div. 1970). That being so, it is impossible for this court to give effect to a statement that the interpretation of the endorsement should be as broad as the Eund law. Some basic differences between the two are as follows:

1. The uninsured motorist endorsement is optional. 17:28-1.2.

The coverage provided by the Fund is effective without consent.

2. The definition of hit-and-run in the Eund law (N. J. S. A. 39 :6-78) and in the endorsement are different and are vastly dissimilar.

3. The Eund retains the right to trial by jury (N. J. S. A. 39:6-67). No corresponding right is given to the carrier when claim is made under the uninsured motorist endorsement.

4. The Eund has been given the power to compel cooperation of the insured (N. J. S. A. 39 :6-68). No corresponding right is given the carrier under the uninsured motorist endorsement.

5. The Eund has full discovery available to it. (N. J. S. 39 :6-67, 68). No corresponding right is given to the carrier under the uninsured motorist endorsement.

6. The Eund does not distinguish between intentional and non intentional torts. Proskurnja v. Elder, 73 N. J. Super. 466 (Law Div. 1962). See, also, the case of Lascari v. Iannaci, 56 N. J. 317 (1970). This distinction is made under the uninsured motorist endorsement.

7. The Eund has the right of direct recovery or reimbursement from the uninsured. (N. J. S. A. 39:6-77). Under the uninsured motorist endorsement, the carrier has the right of recovery but by way of subrogation.

8. There are exclusions with respect to the right to recover under N. J. S. A. 39 :6—70 which are not applicable to those making claim under the uninsured motorist endorsement.

9. The procedural nature of N. J. S. A. 39:6-70 is a shield not available to the carrier under the uninsured motorist endorsement.

10. The notice provisions of N. J. S. A. 39 :6-65 do not apply to the carrier under the uninsured motorist endorsement.

11. Prior to any recovery from the Eund, the claimant must demonstrate that he has exhausted all remedies against the uninsured driver. N. J. S. A. 39:6—71. This does not apply to a claim made under the uninsured motorist endorsement.

These noted differences suffice to indicate the impossibility of attempting to interpret the language of the uninsured motorist endorsement as broadly as the Eund law. Any attempt to do so would require the court to rewrite the endorsement. This is the responsibility vested by the Legislature in the Commissioner of Insurance.

This court accordingly concludes that the evidence of the alleged accord reached in the office of the Commissioner of Insurance on April 1, 1969 is of no aid or assistance in interpreting the uninsured motorist endorsement. This conclusion is fortified by the lapse of a period of four years without any change being made in the uninsured motorist endorsement as it was written and approved on April 2, 1969.

This court concludes that the uninsured motorist endorsement clearly requires, under the circumstances of this case, corroboration and reporting to police. It is undisputed that neither requirement has been met, and accordingly plaintiff has no right to recover on the uninsured motorist endorsement against State Earm.

Plaintiff is left to pursue her rights against the Board.