Residential Landowners Found Not Liable For Plaintiff’s Injuries Due To Trip And Fall On Raised Sidewalk In Driveway Area

In August, 2018, while walking on the sidewalk in front of defendants’ home, plaintiff Diane Conway tripped in the area of a raised concrete sidewalk slab.  Plaintiff claimed that she tripped over a “filled in” concrete or cement between two uneven concrete slabs.  The issue in Conway v. Serra, 2022 N.J. Super. Unpub. LEXIS 856
(App. Div. May 20, 2022) was whether the plaintiff was able to prove that the defendant homeowners (Michele Serra and Marisa Serra) created or in any way caused the raised sidewalk hazard at issue and, thus, could be held liable to the plaintiff for her trip and fall.

Plaintiff had estimated that the sidewalk had approximately a 1½ to 2 inches of raised filled in concrete.  After tripping over this filled in concrete, she lost her balance, stumbled towards the left, fell into a bush and landed on grass.

Plaintiff admitted that she had never walked over the subject sidewalk prior to her fall.  She did not know how long the “filled in” concrete existed before her fall, nor who performed the filled in work on the sidewalk.

One month after her accident, she took a photograph of the sidewalk.  At her deposition, she was able to identify the precise location of her fall.  She secured an engineering expert report, who relied on the photograph, and stated that this repair shown on the photograph “created a hazard by allowing a sidewalk repair patch to have a lip or edge raised above the flat surface.”  The expert concluded that the plaintiff’s fall was the direct result of allowing the sidewalk to have a raised lip and not be level with the flat surface.

At her deposition, the plaintiff testified that someone made repairs to the sidewalk in the summer of 2019 because while driving by, she noted an orange cone on the sidewalk and that the sidewalk was leveled off.  However, she did not know who made the repairs, nor what work the unidentified person performed on the sidewalk.

The defendant homeowners moved for summary judgment and made three arguments:

(1) that they were not liable under the rule that residential property owners were not responsible for repairing or maintaining the sidewalk along their property;

(2) that there was no evidence that the homeowners created a hazard on the sidewalk prior to the accident; and

(3) even if plaintiff could prove that the defendants made a repair to the sidewalk, the plaintiff did not prove that the repair created a danger that proximately caused plaintiff’s injuries.

In opposition, the plaintiff provided a certification.  In her certification, she stated that the portion of the sidewalk where she fell was the driveway portion of the sidewalk abutting the defendants’ residence.  She contended that their cars going over the cement created the raised surface.

The motion judge granted the defendants’ summary judgment, dismissing the case.  He agreed with the defendants that the facts and evidence presented failed to show how the defendants contributed to the alleged dangerous condition that caused plaintiff’s fall.  He found that the plaintiff’s argument that the defendants’ use of their driveway contributed to the defect was without merit.

The motion judge also found that the plaintiff’s expert report was a net opinion because the expert failed to identify any factual evidence that defendants created or exacerbated the condition on the sidewalk.  Hence, the opinions in the expert report failed to provide any legitimate basis to deny summary judgment to the defendants.

This summary judgment order was appealed to the Appellate Division. The Court noted the well settled law that residential property owners are not liable for dangerous conditions of a sidewalk that borders their property unless “their actions create an artificial, dangerous condition on an abutting sidewalk.”  The Appellate Division stated that under New Jersey law, residential property owners, unlike commercial property owners, “have no duty to maintain the sidewalks adjacent to their land so long as they do not affirmatively create a hazardous condition.” 

Here, the Appellate Division agreed that there was no genuine issue of material fact as to whether the defendants created or exacerbated the dangerous sidewalk condition, as the record provided no support for such a contention.  The plaintiff was unable to cite to any evidence suggesting that the defendants created or in any way caused the raised sidewalk hazard as issue.  Further, even if the sidewalk condition was caused by driving a motor vehicle back and forth over the point where the driveway intersects with the sidewalk, that would not create liability for a residential property owner. 

Additionally, the Court agreed with the motion judge that the report of plaintiff’s expert constituted an inadmissible net opinion and, thus, it was barred.  The Appellate Division pointed out that the expert report identified no factual support for the contention that defendants repaired the sidewalk and hence created the hazardous condition.  The expert had relied on two photographs taken after the accident to reach his conclusion that defendants created a hazardous sidewalk condition before plaintiff’s fall.  Thus, the Court found that the expert report was based on unfounded speculation and provided no factual base to support its conclusions.

Accordingly, the Appellate Division affirmed the motion judge’s summary judgment order, dismissing the lawsuit.

Tags: expert, negligence, net opinion, sidewalk