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Occasional Business Use of Residence Does Not Convert Property to a Commercial Use for Purposes of Applying Sidewalk Law

By on May 18, 2017 in Litigation with 0 Comments

Plaintiff James Engle fell on a public sidewalk in front of a residence owned by Melissa and Michael Larkin and sued them for the injuries he suffered from his fall. The defendant Michael Larkin owned a business, Paradise Pavers Pond Landscaping, LLC, and plaintiff asserted that it was operated out of this residence. In Engle v. Paradise Pavers Pond Landscaping, LLC, 2017 N.J. Super. Unpub. LEXIS 943 (App. Div. April 18, 2017), the issue on appeal was whether the occasional “use” of the residential property by Larkin’s business converted the premises to a commercial property for purposes of determining liability to the plaintiff for this fall.

The law is well settled in New Jersey that residential landowners with property abutting a public sidewalk are generally immune from liability for an injury that occurs on this sidewalk – unless they caused or contributed to the defect that caused the fall. However, commercial landowners with a business that abuts a public sidewalk do not share this immunity and may have liability for a fall on the sidewalk caused by a defect in the sidewalk. Thus, for purposes of assessing liability under New Jersey sidewalk law, the first step is to determine if the adjoining property is “residential” or “commercial.”

In Engle, the plaintiff argued that the defendant Larkin’s use of this residence for his business qualified this property to be classified as a commercial property. The facts showed that Larkin randomly would put his business sign on his lawn to try to generate business, he routinely parked one of his truck’s in the residence’s driveway (because he used it to go to and from his work), he had a dedicated phone line for his business at his residence, and used his home address for his business address for purposes of his website.

However, his business had no particular business location and, while he used his home address for purposes of receiving mail, he rarely met customers at his home. Typically, he would meet with customers at their home. Further, Larkin leased a yard where he kept his other company trucks and materials.

Based upon these facts, the Appellate Division found that they did not demonstrate that the residence was being used for commercial purposes. Its predominant use remained residential. The incidental commercial use of this property was insufficient to convert the residential use of this property into being classified as a commercial property for purposes of assessing liability under sidewalk law. Hence, the Appellate Division upheld the immunity granted to the defendants and found that the defendants were not responsible for the injuries suffered in this fall.

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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 25 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 and 2021, 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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