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Owner of Three Family Home Has No Liability for Injury Caused by Fall on Sidewalk Adjacent to Home

By on June 16, 2017 in Liability with 1 Comment

Plaintiff Scott Valentine suffered injuries when he fell on ice or snow on the public sidewalk abutting the three family home owned by defendants Maximo and Ana Almanzar. The issue in Valentine v. Almanzar, 2017 N.J. Super. Unpub. LEXIS 1440 ( App. Div. June 12, 2017) was whether the defendant homeowners had a legal duty to remove snow and ice from this public walkway.  Because the defendants rented two of the three units, whether a duty was owed depended upon whether the home qualified as a residential property or a commercial venture.

Defendants purchased this three family home in 1994 and had a mortgage on the property. They resided in one of the units and rented the other two apartments to nonrelatives under written leases. Defendants received rent totaling $3010 per month, which was used to pay the property’s carrying charges consisting of the mortgage, taxes, and insurance. After paying these charges, the sum of $97 per month was left to pay for maintenance and repair expenses, including any repairs and the purchase of salt for the sidewalk.

Defendant Maximo was disabled and received disability benefits, while Defendant Ana was employed with a net income of $210/week. Because the $97/month did not cover all of the expenses for the property, they used their personal funds to pay any additional expenses.

The defendants filed a motion for summary judgment, arguing that as residential landowners, they had no duty to clear snow and ice on the public walkway abutting their property. (While commercial landowners do have a duty to maintain the public sidewalks abutting their property, the law is clear that this duty is not imposed upon residential property owners.)

The trial judge applied the factors in the Appellate Division decision of Grijalba v. Floro, dealing with sidewalk liability for 3 family homes. The trial judge found that based upon the following factors from Grijalba, that the predominant use of the property was residential, not commercial: “there were no commercial entities at the property; there were additional repair expenses not covered by the rental income; and this was not a profit-generating apartment building.” Hence, the court ruled that the defendants were entitled to a summary judgment.

The plaintiff appealed, arguing that the trial court judge misapplied Grijalba in balancing the predominant use of the property as an income-generating venture. The plaintiff claimed that the judge disregarded the property’s capacity to generate income and earn significant profit after the mortgage was paid.

After reviewing the defendants’ circumstances, the Appellate Division was satisfied that the defendants’ predominant use of this property was residential, not commercial. Using part of the property for income production is a factor to be considered but it does not change the essential nature of the property as the owner’s residence. The defendants used the property as their long-time residence. They rented the two apartments to generate income to cover the carrying charges. The small profit that was generated did not even cover all of the repair and maintenance expenses.

Thus, the Appellate Division found that the defendants were not using the property as a method to make money. Rather, they were renting the two units to be able to retain their home under “tight financial circumstances.” Because the property remained classified as a residential property, the defendants had no duty to clear snow and ice from the abutting sidewalk. Thus, they were not liable for the plaintiff’s fall and resulting injuries.

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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.

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There is 1 Brilliant Comment

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  1. Ira Spector says:

    Interesting blog. What is the liability of a builder that has damaged an adjacent property while constructing a home? We have a broken driveway from the subcontractors that are involved in building a house next to our existing home in Margate, NJ. The builder is dismissing any liability because in his words ” the driveway is old.” Even his concrete subcontractor has stated that this is new damage; previous stress cracks are old and have no bearing on the new damage.

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