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Who is Responsible Under New Jersey Law When an Injury Occurs Due to a Fall on a Public Sidewalk?

By on January 19, 2018 in Liability with 0 Comments

There is an extensive body of law in New Jersey concerning who is the responsible entity when an injury occurs on a public sidewalk. Is it the public entity to whom the sidewalk belongs or is it the adjoining property owner or could the injured party be without any recourse? The answer to these questions lies in a review of New Jersey Tort Claims Act law governing negligence claims against public entities, as well as sidewalk case law concerning the potential liability of landowners with property adjoining a public sidewalk. These questions will be answered by a series of three blog articles. This article will be the first one in this series that will discuss the general basis of liability for these types of claims.

Whether the injury occurs due to a fall from a defect in the sidewalk or from ice or snow on the sidewalk, the analysis is essentially the same. The starting point will be first to determine who owns the sidewalk and, if it is a public sidewalk, who owns the adjoining property. To qualify as a “public” sidewalk, the walkway must either be on publicly owned property, must adjoin a public roadway, or be controlled by the public entity. Christmas v. City of Newark, 216 N.J. Super. 393 (App. Div. 1987). Internal privately owned walkways or sidewalks that are located along privately owned roadways would not qualify as a “public” sidewalk. Liability for a fall on a private sidewalk would be analyzed based upon the general principles of premises liability law. Qian v. Toll Bros. Inc., 223 N.J. 124 (2015).

There are usually three possibilities for public “ownership.” If the sidewalk is along a public roadway, the roadway may be either a municipal, county, or state owned roadway. Sometimes the roadway is owned by more than one public entity at various points of the road. To determine which public entity may be responsible for a sidewalk fall, one must hone in on the area of the roadway that adjoins the sidewalk where the accident occurred.

For municipal entities (township, city, or borough), just because the roadway is located within the borders of that municipal entity, that geographic location is not enough to impose liability as to that municipality – unless it adjoins a municipal road or the municipality asserted some type of control over the roadway or sidewalk. Brothers v. Highlands, 178 N.J. Super. 146 (App. Div. 1981).

Assuming we are dealing with a sidewalk along a publicly owned roadway, the next step is to determine who owns the property that adjoins the sidewalk and what is the nature of their ownership. Is the adjoining property owner a residential landowner or a commercial landowner? This determination is often key for deciding culpability because, as a general rule, if the adjoining landowner is a residential landowner, they likely will have no liability for an injury which occurs on a public sidewalk. However, if the adjoining property owner is a commercial entity – the opposite is true. It is well settled that a commercial landowner can be held responsible for a fall that occurs on a public sidewalk. Luchejko v. City of Hoboken, 207 N.J. 191 (2011). The courts have consistently imposed this responsibility on adjoining commercial property owners.

However, on the flip side, the law is also well settled that a residential landowner has no obligation to maintain a public sidewalk. A residential landowner with adjoining property to a public sidewalk will not be responsible for an injury that occurs on the sidewalk unless the property owner caused or contributed to the defective condition of the sidewalk. Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981); Rodriguez v. Cordasco, 279 N.J. Super. 396 (App. Div. 1995). For example, if a homeowner plants a tree along the sidewalk and the roots of the tree cause the sidewalk to lift and become uneven and a person trips over that uneven sidewalk – that scenario would be an example of a homeowner causing or contributing to the defect that caused the accident, sufficient to potentially create culpability of the homeowner. Debergeois v. Schneider, 254 N.J. Super. 694 (Law Div. 1991), aff’d, 260 N.J. Super. 518 (App. Div. 1992).

As for ice and snow that may cause a hazardous condition, unless the homeowner creates an artificial condition that poses a danger that is different than the hazards presented by the natural condition of snow or ice on a public sidewalk, the homeowner remains immune from liability. Davis v. Pecorino, 69 N.J. 1 (App. Div. 1975).  This immunity also applies to a refreeze from melting ice or snow that may cause a dangerous condition, potentially causing an accident. Foley v. Urich, 50 N.J. 426 (1967)

The immunity for residential property owners remains, regardless of any municipal ordinance that imposes the responsibility on a landowner to maintain a public sidewalk that abuts their property or to clear snow or ice from that sidewalk. Although the municipality could choose to enforce the ordinance and, if permitted, fine the residential landowner for failure to comply with the ordinance, New Jersey law is very clear that any such ordinance does not create liability to an injured party (or provide a basis for a cross-claim) for a fall on that public sidewalk. Brown v. Saint Venantius School, 111 N.J. 325 (1988). It is very important for municipalities to realize that they are not protected from third party claims for a fall on a public sidewalk simply due to the enactment of such a sidewalk maintenance ordinance.

The law is entirely different for commercial landowners. New Jersey law does impose responsibility on adjoining commercial landowners to maintain the public sidewalk, keeping the sidewalk free from defects or hazardous conditions, as well as removing snow and ice from the sidewalk. Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981)(liability for defects); Mirza v. Filmore Corp. 92 N.J. 390 (1983)(liability for snow and ice). The theory is that the commercial landowner’s business benefits financially from its patrons using the public sidewalk in front of or adjoining their business and that they can pass along to its patrons the cost to maintain that sidewalk, including the cost to insure against the liability arising from an injury on such sidewalk.

This responsibility is not dependent upon a municipal ordinance imposing this obligation. Moreover, unless the municipal entity exercises control over that public sidewalk, it will be immune from liability if the adjoining landowner qualifies as a “commercial” landowner. Christmas v. City of Newark, 216 N.J. Super. 393 (App. Div. 1987)(no liability); Roman v. City of Plainfield, 388 N.J. Super. 527 (App. Div. 2006)(municipality could be liable because exercised “control” over public walkway). Thus, in the typical situation, the municipality remains on the hook for an injury on a public sidewalk if it adjoins a residential property but can escape liability if the adjoining property is a commercial property.

Hence, the analysis as to the classification of property ownership of the adjoining landowner is critical to determining potential liability for an injury on the public sidewalk. One would think that it would be easy to determine if the adjoining property owner is a residential owner or commercial owner. However, this determination is the subject of dozens of cases in New Jersey and is often a thorny issue for the court to decide.

In some situations, it is obvious as to whether the adjoining landowner is “residential” versus “commercial.” As an example, if the property is owned by a homeowner who resides in their one family home, that property is obviously “residential” or, if the property is owned by a commercial business, it will be deemed a “commercial” property. But there are many gray areas which are not so clear.

What about if there is a home on the adjoining property, but it is a duplex with one unit as owner occupied and the other unit is rented out? What if the property is residential, but with three units and only one of the three units is owner occupied? What if the adjoining property is a church? What if the property is a vacant piece of land? What if the adjoining property is a condominium building, with the common elements maintained by a condominium association? These are all scenarios that have been decided by New Jersey courts and will be the subject of next week’s blog article!

Additionally, the New Jersey Tort Claims Act provides to public entities certain defenses for injuries occurring on their sidewalks that are not available to private individuals or commercial entities. These defenses will be discussed in the third article in this series on New Jersey sidewalk law. So stay tuned for the third installment on this topic.

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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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