A Capehart Scatchard Blog

Owner-Occupier of Three Family Home Found Not Liable for Personal Injury Claim from Sidewalk Slip and Fall

By on April 17, 2015 in Blog with 0 Comments

In Zheng v. Santos, 2015 N.J. Super. Unpub. LEXIS 331 (App. Div. Feb.23, 2015), the issue was whether the defendant homeowners Abelardo and Prescilla Santos had tort liability for the personal injury of the plaintiff Pin Lan Zheng resulting from her slip and fall due to snow and ice on the public sidewalk in front of their home. The law in New Jersey is well settled that residential property owners are generally immune from liability for accidents resulting from snow and ice on public sidewalks abutting their property. However, less settled is whether an owner-occupied property with a small number of dwelling units should be considered a residential or commercial property.

A commercial property owner has a duty to maintain a public sidewalk adjacent to its property. That duty includes snow and ice removal. A residential property owner does not have this legal duty to maintain the adjacent public sidewalk to their home. Thus, while a residential property owner would generally be immune for an injury caused by the condition of an abutting public sidewalk, a commercial property has no such immunity.

Residential rental properties are considered commercial properties if not owner occupied. While it is clear that a two family owner occupied home remains a residential property for purposes of sidewalk liability, a three unit property falls into a grey area in determining if it is residential or commercial.

In Santos, the defendant homeowners bought their 3 story home in 1975 and lived in the first floor apartment as their only residence for more than 35 years. They and their adult daughter lived on the first floor and the ground and second floor apartments were rented to non-relatives.

The defendants paid off their mortgage on the property 20 years before the plaintiff’s accident. Thus, their expenses for the property were for property taxes, insurance, utilities, repairs and periodic expenses to maintain the property. Their annual expense for the property was about $26,000 and the income received for rental ranged from $22,800 to about $30,000 per year, not counting improvements. The trial court judge viewed the rental income and the expenses no better than equal or a loss. Accordingly, he found that the primary purpose of the property was residential and was not owned by defendants for investment or income-generating purposes.

On appeal, the plaintiff argued that it is the capacity of the property to generate income that is the most relevant consideration. The plaintiff argued that a mortgage free property utilized to generate substantial rental income should be considered a commercial property.

However, the Appellate Division ruled that the relevant question is the primary use of the property. Because the defendants used the property as their long-time residence, the court upheld the trial court’s determination that the nature and purpose of the ownership was primarily residential, not commercial. Thus, it affirmed the dismissal of the plaintiff’s case.


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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