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March 21, 1950

MARRA BROS., Inc. (WM. SPENCER & SON CORPORATION, Third-Party Defendant)

The opinion of the court was delivered by: CONGER

This is a motion by the third-party defendant, William Spencer & Son Corporation, to dismiss the amended third-party complaint of Marra Bros., Inc.

Judge Rifkind dismissed the original third-party complaint from the Bench, so that no written expression of his reasons is available. It goes without saying, however, that he was unable to find allegations clearly imposing liability upon the third-party defendant for the matters asserted against the third-party plaintiff.

 The plaintiff, an employee of the third-party defendant (Spencer) was injured when a door on Pier 2, Hoboken, fell upon him. His complaint alleges that the accident was caused by the negligence of Marra in that as tenant in possession of said pier, it negligently and improperly maintained a door thereon and failed to provide proper appliances, etc. The third-party defendant (Spencer) was impleaded upon the theory that Marra's liability was occasioned by the primary fault of Spencer in that the employees of Spencer negligently and improperly opened and secured the said door in an open position and employed therefor defective and dangerous appliances for said purpose.

 The amended third-party complaint is not substantially different than the original, except that it more precisely alleges the relationship between Marra and Spencer.

 Marra's theory in asserting liability over against Spencer is simply this: that the third-party defendant is obligated under the common law as a primary active tort-feasor to indemnify the third-party plaintiff, merely passive secondary tort-feasor. In support of this proposition, Marra cites Rich v. U.S., 2 Cir., 1949, 177 F.2d 688, and other Federal cases as well as cases from New Jersey, where the accident occurred.

 The Rich case was a suit in admiralty in which the Court decided that the United States, the shipowner, could implead the libellant's employer despite the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. But there was no question of the right of the United States to implead the third party, aside from the bar of the Act, for the third party was primarily liable for the injuries in suit, while the United States, which was only constructively negligent, was obligated for the negligence of the third party solely by reasons of a shipowner's nondelegable duty to maintain a seaworthy vessel. As the Supreme Court said in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099, in discussing this duty: 'It is essentially in a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character (cases cited). It is a form of absolute duty owing to all within the range of its humanitarian policy.' 328 U.S. at page 94, 66 S. Ct. at page 877.

 The other cases cited by the third-party plaintiff, including Burris v. American Circle Co., 2 Cir., 1941, 120 F.2d 218, and Standard Oil Company v. Robbins Dry Dock & Repair Company, 2 Cir., 1929, 32 F.2d 182, involved nondelegable obligations imposed by law, but no case cited by the third-party plaintiff stands for the proposition advanced.

 On the other hand it is well settled in New Jersey and in New York that an owner, lessee or other occupier of land cannot be held liable for the negligent acts of third persons unless it has some independent duty imposed by statute or one created by common law because the work being performed is inherently dangerous or a nuisance per se. See Cuff v. Newark & N.Y Co., 35 N.J.L. 17, 10 Am.Rep. 205; Sarno v. Gulf Refining Co., 99 N.J.L. 340, 124 A. 145, affirmed 102 N.J.L. 233, 130 A. 919; Burke v. Ireland, 166 N.Y. 305, 59 N.E. 914; Herman v. City of Buffalo, 214 N.Y. 316, 108 N.E. 451.

 In all logic, therefore, there can be no basis for liability over on the part of Spencer under the allegations of the amended third-party complaint.

 If the plaintiff obtains a recovery against Marra upon his complaint it will be by reason of Marra's negligence in maintaining a defective door. In other words, Marra will have violated obligations owing to business visitors, etc. In this situation Marra can have no claim over against Spencer for its own negligence. Further, if the accident was created by the negligence of Spencer, then Marra will be absolved and no need for recovery against Spencer will arise.

 I have not discussed the possibility of the parties being joint tort-feasors and its effect for the reason that the third-party defendant repudiates any idea of contribution.

 In view of all this it is plain that the amended third-party complaint is defective for failure to allege facts indicating Marra's possible liability to plaintiff upon the basis of a nondelegable obligation of which the failure to discharge would constitute passive or constructive negligence.

 The motion to dismiss is ...

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