A Capehart Scatchard Blog

Court Finds an Unoccupied Two Family Home to Be a Residential Property for Purposes of Determining Liability for a Fall on Adjoining Public Sidewalk

By on September 28, 2018 in Liability with 0 Comments

Defendant Suresh Muthupandi bought a vacant two-family home, intending to rent out one of the dwellings in the building and, because he was having marital problems with his wife and wanted to separate from her, to move into the other dwelling. Before he could move in, in January 2014, the roof of the building collapsed. It caused extensive damage and precluded his ability to move into one of the units and rent out the other one. In February 2014, the plaintiff Edwardo Vega slipped and fell on snow that had accumulated on the sidewalk abutting the property, suffering injuries.  In assessing the potential liability of the defendant for this sidewalk fall, the issue in Vega v. Muthupandi, 2018 N.J. Super. Unpub. LEXIS 1088 (App. Div. May 10, 2018), was whether the property qualified as a commercial or a residential property.

The defendant did not bother to advertise or show the rental unit to any prospective tenant. No one moved into the building until February 2015.

The trial court found that at the time of the plaintiff’s fall, the two-family home was not a commercial property but, rather, was a residential property. Therefore, the court held that the defendant was not liable for any injuries arising out of his failure to remove snow and ice from the public sidewalk. The plaintiff filed this appeal, contending that the trial court made a mistake when it found the two-family home was not a commercial property.

The plaintiff contended that the defendant did not intend to move into the property just before the plaintiff’s fall or, at the minimum, there was a question of fact over this issue. If the defendant intended to rent both units, the plaintiff Vega argued that the property would be a commercial one and the defendant could be liable for plaintiff’s injuries. The plaintiff also contended, that in the weeks prior to his fall, the workers present at the property to fix the damage to the roof walked over the existing snow on the sidewalk and caused it to pack down, creating an enhanced dangerous condition.

The Appellate Division pointed out that owners of residential property are not liable to those injured as a result of the failure to remove snow and ice from an abutting public sidewalk. A two-family home in which the owner occupies a unit is not deemed to be a commercial property. Regardless, the Court pointed out that, under prior case law, the owner of a vacant commercial lot would not be liable for a fall on a public sidewalk. However, an owner of a vacant commercial building could be liable because there was a capacity to generate income.

This case had different facts because the building was not habitable. The Appellate Division noted that there was no use to which the building could have been put to generate income. The defendant was not showing the property to prospective tenants and could not have rented out the property. Therefore, at the time of the plaintiff’s fall, the property was not a commercial one. Accordingly, the Appellate Division found that the defendant could not be liable for the plaintiff’s fall on the adjoining public sidewalk and upheld the trial court’s decision to dismiss the complaint.


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.

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