Determining the Responsible Entity
New Jersey law contains an extensive body of cases concerning who the responsible entity is when an injury occurs on a public sidewalk. Whether the fall occurred due to a negligently maintained sidewalk containing dangerous defects or the presence of snow/ice or other slippery substances, the analysis is essentially the same.
The first step will be to determine who owns the sidewalk and if it is a public sidewalk, who owns the abutting property. Public property is defined by Title 59 as “real or personal property owned or controlled by the public entity.” N.J.S.A. 59:4-1(c). Thus, in order to be considered public property, the sidewalk must either be on public property, adjoin a public roadway, or be controlled by the public entity. On the other hand, if the injury occurs on an internal privately-owned sidewalk, liability is determined by analyzing the general principles of premises liability law. Qian v. Toll Bros, Inc., 223 N.J. 124, 127 (2015) (finding residential public-sidewalk immunity not to be available in the case of a privately owned sidewalk).
A sidewalk is often considered public because it runs along a publicly owned roadway. Once that determination has been made, the next step is determining who owns the property abutting the sidewalk and the nature of ownership.
Publicly Owned Sidewalk: Adjoining Property Owner’s Liability
Once you have determined whether the sidewalk is publicly or privately owned, the next step will be to determine whether the abutting property owner is a residential landowner or a commercial landowner. This determination will typically dictate whether the claim is worth pursuing. As a general rule, if the abutting landowner is residential, they likely will have no liability for an injury occurring on a public sidewalk.
Generally, a residential landowner with adjoining property to a public sidewalk will not be responsible for an injury that occurs on the sidewalk unless the 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). As an example, if the homeowner or previous homeowner planted a tree along a sidewalk and the roots of the tree cause the sidewalk to lift and become uneven, if a pedestrian trips on the uneven sidewalk, the homeowner may be found to have caused or contributed to the defect, and may be liable for the resulting injury. Deberjeois v. Schneider, 254 N.J. Super. 694, 700 (Law Div. 1991) aff’d 260 N.J. Super. 518 (App. Div. 1992).
Likewise, where snow or ice caused the hazardous condition, unless the homeowner created an artificial condition that posed a danger different from that of the hazards presented by the natural condition of snow or ice, the homeowner remains immune from liability. Davis v. Pecornio, 69 N.J. 1 (App. Div. 1975); Foley v. Urich, 50 N.J. 426 (1967) (expanding the rule also to apply to refreeze from melting snow or ice).
As a final note, some municipalities have passed ordinances to impose responsibility on landowners to maintain the public sidewalk abutting their property. However, even in such cases, residential immunity prevails. The New Jersey Supreme Court analyzed this issue in Brown v. St. Venantius School, 111 N.J. 325 (1988). There the Court reaffirmed the “well-settled principle that municipal ordinances do not create a tort duty, as a matter of law.” Id. at 335 (citing Yanhko v. Fane, 70 N.J. 528, 536 (1976)). Thus, while a municipality may choose to enforce the ordinance (usually through a fine), New Jersey law is clear that any such ordinance will not create liability to an injured party.
In contrast to residential owners, New Jersey law does impose a duty upon abutting commercial landowners to maintain the public sidewalk to keep it free of defects/hazardous conditions and slippery conditions such as snow/ice. Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981); Mirza v. Filmore Corp., 92 N.J. 390 (1983).
The reasoning for this rule was explained by the Court in Stewart, noting that commercial landowners benefited tremendously from public sidewalks and patrons utilizing public walkways to access their business and that businesses could purchase liability insurance and pass along the added cost to their patrons, something a residential homeowner cannot do. Stewart, supra. at 159.
While the Stewart Court directed that “commonly accepted definitions of ‘commercial’ and ‘residential’ property should apply,” several decisions have followed where the type of abutting property was less than clear. Factual considerations are therefore crucial in determining the abutting property’s status. Nevertheless, surprises remain.
For instance, in Hambright v. Yglesias, the Appellate Division was faced with the issue of whether a two-family home that the owner entirely rented out was a commercial property. 200 N.J. Super. 392 (App. Div. 1985). The Hambright court looked to the Supreme Court’s guidance in Stewart and reiterated that while “[a]partment buildings are residential in the sense that they are places where people live; they are commercial in the sense that they are operated by their owners as a business.” Id. at 395. The same was the finding in Wilson v. Jacobs, where the Appellate Division considered a home entirely rented to a family member whose rent consisted of paying the mortgage and taxes. 334 N.J. Super. 640 (App. Div. 2000).
On the other hand, the Appellate Division has typically found a property to be residential where the owner resides at the home, even where portions of it are rented or used for business. See e.g. Avallone v. Mortimer, 252 N.J. Super. 434 (App. Div. 1991) (finding a property to be residential where the property was partially owner-occupied and partially rented.); See also Borges v. Hamed, 247 N.J. Super. 295 (App. Div. 1991) (finding a property occupied by the owner and partially rented to relatives to be residential.).
If an injured individual can establish that it is the public entity that is responsible for the condition of a public sidewalk, the public entity retains several other immunities. These immunities include lack of notice of a dangerous condition; the public entity's actions or inactions were not palpably unreasonable; plan and design immunity; the allocation of resources defense; or common law snow removal immunity.
The Tort Claims Act provides that a public entity can be held liable for an injury resulting from a dangerous condition of its property only if it had “actual or constructive notice of the dangerous condition…[a] sufficient prior to the injury to have taken measures to protect against the dangerous condition.” N.J.S.A. 59:4-2(b).
The notice defense is often an excellent shield from liability for the public entity. Generally, a municipality has miles of sidewalks and limited resources to inspect and become aware of defects on its sidewalks. As such, especially in the case of a minor defect, the public entity will have no prior knowledge of hazardous conditions on its sidewalk, making it difficult for a claimant to prove actual notice. Therefore, plaintiffs often rely on constructive notice when advancing their claim.
A plaintiff established constructive notice if “the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” N.J.S.A. 59:4-3(b).
Nevertheless, even where a plaintiff can establish actual or constructive notice, liability will only be imposed upon a public entity “for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.” N.J.S.A. 59:4-2. The New Jersey Supreme Court has pointed out that the palpably unreasonable standard “implies ‘behavior that is patently unacceptable under any circumstance’ and that ‘it must be manifest and obvious that no prudent person would approve of its course of action or inaction.’” Holloway v. State, 125 N.J. 386, 403-04 (1991) (quoting Kolitch v. Lindedahl, 100 N.J. 485, 493 (1985)).
In addition to the palpably unreasonable standard, the public entity will also typically assert what is known as the allocation of resources defense or the discretionary immunity provided by N.J.S.A. 59:2-3. Pursuant to this immunity, “[a] public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity.” N.J.S.A. 59:2-3(a). Based on this defense, the public entity will not be liable for the exercise of discretion “in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes the determination of the public entity was palpably unreasonable.” N.J.S.A. 59:2-3(d).
Additional immunities are also available to the public entity. For instance, the public entity also enjoys immunity under the plan and design defense provided in N.J.S.A. 59:4-6. This Tort Claims Act defense is available if the public entity is able to show that the injury was caused by the plan or design of the public property. However, for this defense to be available, the plan or design has to have “been approved in advance of the construction or improvement by the Legislature or the governing body of a public entity or some other body or a public employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved.” Id. This immunity is often difficult for the public entity to invoke, as it is often challenging for the public entity to find either the plans or drawings for the property and/or the resolution or approval by the public entity’s governing body. This is especially the case when the property was designed before plans were digitalized.
As a final note, where the injury occurred due to the existence of snow or ice upon the public walk, the public entity may also rely upon the common law snow removal immunity to bar liability. This defense is based upon New Jersey common law and borrows the immunity provided by N.J.S.A. 59:4-7, which provides: “[n]either a public entity nor a public employee is liable for an injury caused solely by the effect on the use of streets and highways of weather conditions.” Miehl v. Darpino, 53 N.J. 49 (1968).
As you can see, the public entity enjoys several broad immunities for injuries occurring on the public walk. The above should strongly be considered when evaluating the viability of a claim against the public entity for damages resulting from a sidewalk fall.
If you have suffered injuries due to a trip and fall on a New Jersey sidewalk and wish to discuss your legal options, Farrell & Thurman, P.C., offers a variety of convenient ways to schedule a free, no-pressure consultation. You may do so directly on our website (Schedule a Consult), via phone (609-924-1115), or by email (Contact Us).