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Owner Of Vacant Two-Family Home Found Not To Be Liable For Injury On Abutting Defective Sidewalk

By on January 17, 2020 in Liability with 0 Comments

The plaintiff, Nivia Cardenas, fell and injured herself on a defective sidewalk in front of a vacant home owned by defendants Mark and Anthony T. Severino.  The trial court judge determined that, because the property was not being used for commercial purposes at the time of the accident, the defendants had no duty to maintain the sidewalk in a safe condition.  The issue on appeal in Cardenas v. Severino, 2019 N.J. Super. Unpub. LEXIS 2470 (App. Div. Dec. 5, 2019) , was whether the property should be considered a commercial property because of its potential to generate income at the time of the injury.

The plaintiff had been walking to a store when she fell on the uneven sidewalk, suffering broken ribs and injuries to her back and shoulders.  The accident took place in front of the defendants’ home, which at the time was vacant.  The plaintiff sued the defendants, claiming that her injuries were due to the defendants’ failure to maintain the adjoining sidewalk in a safe condition.

Prior to trial, the defendants filed for a summary judgement dismissal.  They contended that they were not liable to plaintiff because the property was not used for commercial purposes when she fell and, under New Jersey law, owners of residential property cannot be held liable for an injury caused by a defective sidewalk.  The plaintiff opposed that argument, contending that the test to determine whether defendants are subject to sidewalk liability is “whether their property had the ability or potential to generate income at the time of the accident.”

The defendants, father and son, had lived across the street from the property.  They purchased the property in 2008 following the death of the previous owners, who had lived in the home.  The defendants’ plan was to renovate the property and eventually, the son, would live there.  Their renovations stretched over 7 years prior to plaintiff’s accident and were not completed until about 6 months thereafter.

After the renovations were finished, the defendant Mark (the son) decided not to move into the property but, rather, the defendants decided to rent it.  After spending so much money on the house, they decided that they should get tenants in to help pay the mortgage.

When the defendants bought the property, it was insured as a residential dwelling policy for a two-family residence.  However, that policy was cancelled in 2011, after the insurance company discovered the property was vacant.  Due to the carrier’s insistence, the defendants bought commercial general liability and property insurance for the property, which was in effect at the time of the plaintiff’s fall. 

The trial court judge granted summary judgment in favor of the defendants and dismissed the plaintiff’s complaint.  His rationale was that the property was not commercial at the time of the accident because it was not being used for business activity in any fashion.  The defendants were not actively marketing the home for sale or rental, nor did they make it accessible to potential buyers or tenants.

Upon appeal, the plaintiff contended that the property was more akin to a rental and, therefore, should be considered commercial, subject to sidewalk liability for defendants.  She contended that even though the property was vacant at the time of her injury, it could still have been rented out and because there were people making renovations to the property, the defendants were liable to them and anyone else walking on the sidewalk adjoining the front of the property.  As a rental home, the plaintiff argued that it should be considered commercial property for purposes of assessing liability.

The Appellate Division agreed with the trial court judge that the defendants were not subject to sidewalk liability “because the record established the property was not used for commercial purposes.”  The Appellate Division noted that the property was not being used for a commercial purpose and was not intended to be used in that capacity at the time of plaintiff’s accident.  Further, there was no indication that the defendants derived any economic benefit from the property.  Just because the property was not owner occupied does not lead to the conclusion that it was used as commercial property.

Further, the Court found that there was no merit to the plaintiff’s argument that the property should be considered commercial because it was capable of being rented out at the time of her accident.  The mere fact that someone lived in the property before plaintiff’s accident is not dispositive that the property was fit for rental, thereby making it commercial and subject to sidewalk liability for defendants.  Finally, the Appellate Division noted that the defendants had not leased the property to tenants or advertised the property for rent prior to the accident.            

Accordingly, the Appellate Division affirmed the trial court’s decision, dismissing the lawsuit.

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Betsy G. Ramos

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.

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