A Capehart Scatchard Blog

Commercial Landowner Found Potentially Liable For Fall Occurring on Grassy Area Between the Sidewalk and Curb

By on March 5, 2021 in Liability with 0 Comments

Plaintiff Quinisha White fell in front of a commercial property while walking from her house to a car in the street.  She had stepped into the grassy area between the sidewalk and the curb and lost her balance due to an uneven decline by the curb.  She sued the owner of the property, defendant Magyar Reformed Church, and the City of New Brunswick.  In White v. City of New Brunswick, 2021 N.J. Super. Unpub. LEXIS 334 (March 2, 2021), the issue was whether the church, as an owner and operator of a commercial rental property, could be liable for the plaintiff’s injury resulting from the fall in the grassy berm by the curb.

After the plaintiff lost her balance, she extended her left foot to balance on the curb but the portion of the curb was missing.  As a result, she fell and she suffered a broken ankle, which required two surgeries.

The property was owned and operated as a commercial rental property by the defendant, Magyar.  The street was owned by the City of New Brunswick.  Magyar’s property manager conducted an inspection as to the exterior of the property, every other month, and would cut the grass, which would include the grassy area between the sidewalk and the curb.  It was not established who owned the grassy berm.

On the trial court level, the court granted a summary judgment for Magyar.  The judge’s rationale was that plaintiff fell not due to the slope of the grassy area but, rather, due to the missing curb.  This appeal ensued.

The Appellate Division considered two issues: (1) whether Magyar owed a duty of care under the circumstances and (2) whether there was a question of fact for the fact finder about the cause of the accident.   Plaintiff argued that Magyar, as a commercial landowner, owed her duty of care to make safe the grassy berm between the sidewalk and the curb.

The law is well established that commercial landowners owe a duty to maintain adjoining sidewalks in a reasonably good condition.  However, the duty to maintain the grassy berm between the sidewalk and the curb would depend upon whether that area was more closely connected with the sidewalk or the roadway and whether it was reasonably anticipated that it would be traversed by members of the public.

Defendant Magyar argued that it did not own the grassy berm because the City had a right of way and that ownership of the land was relevant to the assessment of the duty.  However, the Appellate Division pointed out that ownership was not dispositive of a commercial landowner’s liability and that a public easement over an area, including a sidewalk, does not eliminate liability over the area for commercial landowners.  Further, the Appellate Division noted that, even if the City had a right of way, that was not the equivalent to ownership but rather allowed for passage over the property.  There is a presumption, absent evidence to the contrary, that title of a property abutting a public street extends to the middle of the street.

Thus, the Appellate Division did find that there was an unresolved factual issue as to whether a duty was owed for the grassy berm by the abutting commercial property owner, defendant Magyar.  The Court noted that the trial court has to determine whether a duty stems from “(1) whether and to what degree it is necessary for a pedestrian to use the grassy berm; or (2) the foreseeability of the grassy berm’s use as ingress and egress by a pedestrian.”  If the use by a pedestrian appears foreseeable, then it becomes a question of the scope of maintaining the grassy berm in a reasonably safe condition, which would be for a jury to determine whether a breach of that duty occurred.

There was a fact dispute as to whether it was the condition of the grassy berm or the missing concrete or some combination of both which caused the plaintiff to lose her balance and fall.  That is a factual issue that would have to be decided by a jury.

The Appellate Division further found that there was also a question of fact as to whether the defendant had constructive notice of the condition, which precluded the granting of a summary judgment motion

With respect to notice, the plaintiff had presented an expert report which opined that the alleged condition was caused by erosion of soil over time.  Thus, a factfinder could find that, if the curb caused the condition in the grassy berm through erosion, that the curb had been in such a state for a sufficient period of time that the defendant had been on constructive notice. 

The Appellate Division pointed out that the records showed that the defendant conducted inspections of the property every other month and cut the grass on the property every week.  Hence, a reasonable factfinder could determine that the defendant had ample time and opportunity to uncover the condition.

Due to these genuine issues of material fact in dispute (whether Magyar was on constructive notice and the proximate cause of plaintiff’s injury), the Appellate Division reversed the trial court’s decision and remanded the matter back to the trial court for further proceedings.

Betsy G. Ramos, Esq. is expanding her practice to include serving as mediator for NJ or PA civil cases. Ms. Ramos recently completed the required 40-hour Civil Mediation Training Program conducted by the New Jersey Association of Professional Mediators (NJAPM). Completion of this program meets the training requirements for Rule 1:40 Civil, General Equity, and Probate Mediation Roster of the Superior Court, as maintained by the New Jersey Administrative Office of the Courts.

Please contact Ms. Ramos at 856-914-2052 or bramos@capehart.com if you wish to retain her services as a mediator for any civil litigation, including personal injury, construction, employment, probate, or chancery matters.



About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

*No aspect of this advertisement has been submitted to or approved by the Supreme Court of New Jersey.


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