A Capehart Scatchard Blog

Residential Property Owners Found Not Liable for Dangerous Sidewalk Condition Created by Neighbors’ Sump Pump

By on May 8, 2015 in Blog with 0 Comments

This week’s article was written by my associate attorney, Voris M. Tejada, Jr., Esq.

The plaintiff, David Johnson, was injured when he slipped and fell on an icy patch underneath some newly fallen snow on the sidewalk abutting the defendants homeowners’ property.  In Johnson v. Dymowski, 2015 N.J. Super. Unpub. LEXIS 895 (App. Div. Apr. 21, 2015), the plaintiff argued that the defendants negligently failed to take action to correct the condition on their sidewalk.

The record revealed that, for many years, the defendants knew that their neighbors’ sump pump discharged water that flowed across the defendants’ yard and then pooled on the sidewalk where plaintiff fell.  The defendants were aware this pooled water froze in cold weather, and had adopted a practice of applying a de-icing agent to the affected area. The defendants had salted the sidewalk both the night before and the morning of the incident.

The sidewalk where plaintiff fell abutted a residential property.  Citing the Supreme Court of New Jersey’s decision in Luchejko v. City of Hoboken, 207 N.J. 191 (2011), the Court noted an “unbroken series” of New Jersey Supreme Court decisions establishing the difference in the duties imposed on residential versus commercial property owners.

Under the common law rule, property owners were not liable for dangerous sidewalk conditions absent active misconduct.  The Supreme Court of New Jersey, in Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), later departed from that rule with its decision to impose a duty to maintain abutting sidewalks upon owners of commercial property.  However, in cases since Stewart, the Supreme Court of New Jersey had repeatedly emphasized that the common law rule survives as to residential property owners.  Under those decisions, while a duty is imposed upon owners of commercial property to maintain abutting sidewalks, residential homeowners are not liable unless they created or exacerbated a dangerous sidewalk condition.

The plaintiff attempted to distinguish Luchejko by arguing that Luchejko only protected residential property owners from liability for injuries caused by naturally occurring sidewalk conditions.  Here, the plaintiff argued, the icy patch did not occur naturally, but was rather an artificial hazard created by the neighbors’ sump pump.  The Appellate Division rejected plaintiff’s argument, noting that the distinction between naturally occurring and man-made hazards is nowhere found in Luchejko.  No mention of the cause of the defect as having any impact on a residential property owner’s duty and consequent liability was made in the relevant case law.  Rather, the central inquiry remained whether the property is commercial or residential.

Here, the Appellate Division found that the sidewalk abutted residential property and that the defendants did nothing to cause or exacerbate the defective condition caused by their neighbors’ sump pump.  As a result, the defendants had no duty to correct the problem with the sidewalk caused by the sump pump and had no liability for plaintiff’s injury.

The plaintiff also argued that the defendants had a duty, established by a municipal ordinance, to keep their sidewalk in good repair.  However, the appeals court noted that the existence of this ordinance did not give rise to a private cause of action for its alleged breach, and that the ordinance therefore could not provide a basis for a claim against the defendants.  The Appellate Division thus concluded that there was no genuine issue as to any material fact, and affirmed the trial court’s grant of summary judgment in the defendants’ favor.


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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