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Residential Property Owner Found Not Liable for Plaintiff’s Injury Caused by Raised Public Sidewalk Slab Abutting Owner’s Home

By on February 7, 2020 in Negligence with 0 Comments

Plaintiff Carla Israel was walking on the sidewalk bordering the rear of the defendant’s home located in East Brunswick, New Jersey.  She fell as a result of an uneven slab of sidewalk and suffered an injury.  The issue in Israel v. Gross, 2019 N.J. Super. Unpub. LEXIS 2538 (App. Div. December 12, 2019) was whether the defendant residential property owner could be held responsible for the plaintiff’s injury in which the raised sidewalk was due to tree roots planted by a prior owner.

The plaintiff claims that the “defective condition” was located on a grass strip between the sidewalk and the fence located at the rear of the defendant’s property.  Due to the fall, plaintiff fractured her jaw and suffered shoulder, cervical, and thoracic injuries.

The defendant owner had filed a motion to dismiss via summary judgment, claiming that: “(1) he was not liable for plaintiff’s injuries and damages because the area where plaintiff fell was not on his property or under his control and is owned by the municipality; and (2) because the defect in the sidewalk was not the result of any affirmative conduct on his part, such as negligent repairs or maintenance, he owed no duty to plaintiff.” 

The plaintiff opposed his motion, arguing that there were material issues of fact as to whether defendant owned the sidewalk in question.  After hearing argument, the trial judge denied the defendant’s motion for summary judgment and concluded there was a material issue of fact for trial as to whether defendant had an obligation to correct the defect in the sidewalk.  The defendant appealed the summary judgment ruling to the Appellate Division.

Upon appeal, the Appellate Division noted that “a residential homeowner is not liable for a dangerous natural condition of a sidewalk that borders his or her property.”  However, the Court pointed out that a residential property owner may be liable when the owner’s action creates an artificial, dangerous condition on the abutting sidewalk.

In prior case law, the Court addressed a situation involving a homeowner planting a tree, whose roots uplifted the sidewalk and caused it to be uneven.  In that situation, the Court had found that the property owner’s liability was founded on the “positive act” of the property owner and the actual planting of the tree that caused the issue with the sidewalk, rather than the natural process of the growth of the tree roots. 

However, in this case, the defendant claimed that he did not plant the tree in question or take any other affirmative action to cause plaintiff’s injuries. The Appellate Division noted that the plaintiffs had not provided any evidence that established anything to the contrary.  Thus, had the tree been the cause of the plaintiff’s fall, it would constitute a “natural condition” and, hence, the defendant owed no duty to the plaintiffs. 

The plaintiff was also claiming that she tripped and fell on a sidewalk that was within defendant’s property lines.  The defendant, on the other hand, argued that the trial court judge made a mistake in denying his motion for summary judgment because the sidewalk where the plaintiff fell is behind and beyond his property line and is not owned by him, as evidenced by a survey.  Further, he argued that the plaintiffs presented no evidence that showed that he installed or maintained the defective sidewalk, thereby creating any duty. 

The Appellate Division agreed with the defendant’s argument.  The Court noted that the record failed to show that the sidewalk was owned by the defendant.  Moreover, the Court stated that “construing the facts in a light favorable to plaintiffs and assuming defendant owns the section of the sidewalk where plaintiff fell, defendant owed no duty to maintain the sidewalk for pedestrians.”

Thus, the Appellate Division found that summary judgment was improperly denied to the defendant.  The Court reversed the order of the motion judge denying summary judgment and remanded the case for an order granting summary judgment to defendant and dismissing plaintiff’s complaint.

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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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