For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan and Clifford and Judge Conford. For reversal -- Justice Pashman and Schreiber. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned. Pashman, J. (dissenting). Justice Schreiber has authorized me to state that he joins this dissent.
We have undertaken to consider once more the rule of sidewalk negligence law, most recently affirmed by this court in Murray v. Michalak, 58 N.J. 220 (1971), affirming on the opinion below, 114 N.J. Super. 417 (App. Div. 1970); Barkley v. Foster Estates, Inc., 61 N.J. 576 (1972), affirming by an equal division of the court the decision in 121 N.J. Super. 453 (App. Div. 1971); and Muzio v. Krauzer, 62 N.J. 243 (1973), affirming on the opinion below, 122 N.J. Super. 221 (App. Div. 1971); that:
"An abutting owner is not liable for injuries suffered by a pedestrian on a defective or dilapidated sidewalk even though it constitutes a nuisance, unless the proofs show that that owner or his predecessor in title participated in the creation or continuance of the nuisance". 114 N.J. Super. at 418, quoting Lambe v. Reardon, 69 N.J. Super. 57, 64-65 (App. Div. 1961), certif. den. 36 N.J. 138 (1961).
The female plaintiff fell on a sidewalk in the City of Egg Harbor while walking from her place of employment to a nearby bank -- a journey she made daily in the course of her employment. The sidewalk was abutted by a vacant lot owned by defendants, used for parking by customers of their auto store. The store was separated from the lot by three other stores, and access to the lot for vehicles was not over the sidewalk in question but from another street. The sidewalk was in a bad state of repair. On the occasion in question plaintiff's left toe had entered a hole or crevice in the sidewalk
and struck the forward edge of the portion ahead of it, causing her to fall and sustain the injuries complained of. The accident occurred July 5, 1968, and the action was instituted June 3, 1970.
Defendants had owned the lot for 20 years but did not construct the sidewalk or ever repair it, nor did anyone else repair it during their ownership. There is no indication of when the sidewalk was constructed or by whom or as to any repairs ever made to it by anyone.
A search of the records of Egg Harbor City fails to reveal that the city ever built or maintained the sidewalk in question. Since long prior to defendants' ownership the city has had an ordinance imposing on abutting owners an obligation to construct sidewalks and to maintain them in good repair.
Plaintiffs' theory of the case was that the condition of the sidewalk was the result of the combination of improper construction, wear and tear by the elements and the pedestrian traffic. The facts stated above were recited as representations of intended proofs in the plaintiffs' opening, at the conclusion of which the trial court granted a motion to dismiss the complaint for failure of plaintiffs to state a prima facie case in their opening.
The Appellate Division affirmed in an unreported opinion. We granted certification, 68 N.J. 137 (1975), to review yet another time the basic sidewalk liability law of this State.
It is well settled that an abutting owner is not liable for the condition of a sidewalk caused by the action of the elements or by wear and tear incident to public use, but only for the negligent construction or repair of the sidewalk by himself or by a specified predecessor in title or for direct use or obstruction of the sidewalk by the owner in such a manner as to render it unsafe for passersby. See Moskowitz v. Herman, 16 N.J. 223 (1954); Orlik v. De Almeida, 45 N.J. Super. 403 (App. Div. 1957); Snidman v. Dorfman, 7 N.J. Super. 207 (App. Div. 1950); Krug v. Wanner, 28 N.J. 174
(1958); Rupp v. Burgess, 70 N.J.L. 7 (Sup. Ct. 1903); cf. Davis v. Pecorino, 69 N.J. 1 (1975).
Plaintiffs do not dispute the purport of the law as just restated, or its fatal impact on their fact presentations here. Rather they urge: (1) that considerations of justice and convenience warrant redefining common-law liability in this area of the law to impose a duty on all abutting owners not "to maintain a sidewalk in a dangerous condition," invoking the forceful dissenting opinion of Justice Proctor to that effect in Murray v. Michalak, supra (58 N.J. at 220, 222); (2) that, short of overruling the existing rule, it be modified to permit a jury to determine whether, on the alleged circumstantial case here made out, some prior owner of the property did not construct or repair the sidewalk improperly, for which the present owners should be properly accountable; and (3) that since for decades there have been in effect ordinances of the city imposing on abutting property owners the obligation of constructing and maintaining sidewalks, civil tort liability of such owners should be declared for failure to comply with the ordinance.
None of these contentions persuades us. We address them in order.
Plaintiffs erect their principal thesis on the assertion in Justice Proctor's dissenting opinion in Murray v. Michalak, supra, that "one who maintains a sidewalk in a dangerous condition should be liable for injuries suffered by an innocent pedestrian as a result of that condition." 58 N.J. at 222. However, it seems to us that an abutting owner who makes no use of the sidewalk other than pedestrian passage thereover in common with the public generally is not properly to be described as "maintaining" it. This is particularly so when he does not exercise any control or dominion over it, as by constructing or repairing the sidewalk or making any other special use of it. Cf. Davis v.
Pecorino, supra. Presumably, defendants' title goes to the middle of the abutting street, subject to the public easement of vehicular passage in the street and of pedestrian passage on the sidewalk, with neither of which defendants are entitled to interfere. Saco v. Hall, 1 N.J. 377, 382 (1949); Starego v. Soboloski, 21 N.J. Super. 389, 392-393 (1952), aff'd 11 N.J. 29 (1952). In legal contemplation, the easement of public passage renders the sidewalk an integral part of the public highway. Id. 21 N.J. Super. at p. 392; Mount v. Recka, 35 N.J. Super. 374, 381 (App. Div. 1955).
The judicial imposition of a tort duty of care and maintenance of a portion of the public domain upon a property owner for no better reason than that his property is proximate to it would seem to be an arbitrary determination. See Stevenson, "Law of Streets and Sidewalks in New Jersey", 3 Rutgers L. Rev. 19, 25 (1949); Mount v. Recka, supra, 35 N.J. Super. at 380. The unrestrictable right of passage on the highway belongs to the public. In principle, therefore, a remedy for injury to a pedestrian caused by improper maintenance thereof should be subsumed under the heading of public liability. It should be for the Legislature as representative of the public at large to declare or regulate such liability,*fn1 not for the courts to impose it on the abutting owner as a convenient subject of liability. Despite decades of adherence by our courts to the principles enunciated above, the Legislature has not seen fit to impose a per se tort duty on the abutting owner. No satisfactory reason has been advanced for this court to do so now.
The rationale of public use and control formulated above undoubtedly underlies the accordant view of the American
Law Institute and the great majority of American jurisdictions against tort liability of the abutting owner who is otherwise without fault or contribution to the accident. Restatement, Second, Torts, Sec. 349, pp. 230-231 (1965); Annot., 88 A.L.R. 2d 331, 340-346 (1963); Prosser, Law of Torts (4th ed. 1971) 353.
Plaintiffs contend it should be a jury question as to whether a predecessor in title of defendants built or repaired the sidewalk since there is evidence that the city did not do so and that there has been in effect for many years a sidewalk ordinance imposing such an obligation on abutting owners.
However, plaintiffs face the initial difficulty that they must establish not merely that the sidewalk is now dilapidated, as that could have developed from pedestrian use and wear and tear, but also that it is due to negligent construction or repair. This, in turn, requires a showing "as to when the sidewalk was constructed and the proper standard of construction at that time." Moskowitz v. Herman, supra (16 N.J. at 225). Such proof is obviously not presented by plaintiffs.
As to permitting an inference that some predecessor in title must have last constructed or repaired the sidewalk, our cases are firmly to the contrary. As pointed out by Judge Clapp in Orlik v. De Almeida, supra, work or repair on sidewalks is frequently done by municipal authorities, public utilities, Works Progress Administration (prior to World War II) and others "whose acts are not properly imputable to the owner." 45 N.J. Super. at 408. Plaintiffs' present proffer of proof is not substantial evidence negating the thesis that the last work on this sidewalk may have ...