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Mirza v. Filmore Corp.

Decided: February 8, 1983.

KISHWAR MIRZA AND MASOOD MIRZA, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
FILMORE CORPORATION, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock and O'Hern. For affirmance -- None. The opinion of the Court was delivered by Schreiber, J. Clifford, J., concurring in judgment. Clifford, J., concurring in the result.

Schreiber

In Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981), we held that commercial landowners are responsible for maintaining the public sidewalks abutting their property in reasonably good condition and are liable to pedestrians injured as a result of their negligent failure to do so. However, we expressly refrained from deciding "the question of an abutting commercial property owner's liability for injuries due to natural accumulations of ice and snow on the sidewalk." Id. at 159 n. 5 (citations omitted). That is the issue presented in this case.

The question arose in the context of defendant's successful motion for summary judgment, which was heard before our opinion in Stewart. A summary of the essential facts, granting plaintiff the benefit of favorable inferences, is as follows:

Plaintiff Kishmar Mirza*fn1 was employed by Femina Foundations in a building owned by defendant, Filmore Corporation, located on 61st Street in West New York. On February 9, 1978, the date of plaintiff's accident, the public sidewalk in front of the main entrance to the building was covered with a layer of ice concealed by about a foot of snow. It had snowed three or four days before February 9 and it had also snowed during the night of February 8-9.

The plaintiff had walked approximately six blocks from her home to the defendant's building. She arrived shortly before 8:00 a.m. When about two to three feet from the entrance and despite the fact that she was proceeding carefully, her feet slipped out from beneath her and she fell on her back. She noticed that the spot where she slid was "hard ice." The defendant had inspected the sidewalk but had neither removed the snow that had fallen initially, nor attempted to remove or lessen the danger when the snow had become ice.

At the conclusion of the argument on the defendant's motion for summary judgment, the trial court correctly observed that under the then existing law "an abutting landowner has no duty to remove the natural accumulation of ice and snow from the public sidewalk adjoining his premises." It also stated that the landlord could be liable if he created the hazardous condition by improperly constructing the sidewalk, Gentile v. National Newark & Essex Banking Co., 53 N.J. Super. 35 (App.Div.1958); see also Foley v. Ulrich, 50 N.J. 426 (1967), rev'g on Appellate Division dissent, 94 N.J. Super. 410, 419 (App.Div.), or created the hazard by some special use of the sidewalk, Davis v. Pecorino, 69 N.J. 1 (1975). However, plaintiff had produced no proof to bring defendant within these exceptions to the general rule. The trial court, remarking that it is for the Supreme Court to modify the sidewalk law, was constrained to grant the defendant's

motion for summary judgment. The Appellate Division, agreeing with the trial court's rationale, affirmed.

The Appellate Division's opinion was also rendered before our decision in Stewart. We granted plaintiff's petition for certification. 88 N.J. 471 (1982).

I

Commercial landowners are responsible for maintaining the public sidewalks abutting their property in a reasonably safe condition. Stewart, 87 N.J. at 157. Maintenance of the public sidewalk would be required where holes or broken sidewalk pieces or uplifted segments of the public sidewalk create unreasonable hazards. These hazards can arise from natural causes. The expansion and contraction of sidewalks due to weather may cause fractures and fissures. Water may accumulate in openings and expand on freezing causing dangerous crevices. Tree roots may undermine sidewalk slabs producing a dangerous condition. See Hayden v. Curley, 34 N.J. 420 (1961).

Additionally, the danger may be due to objects or material cast or dropped upon the sidewalk. A property owner is under a duty to clean up, within a reasonable time, material that he dropped, negligently or otherwise, upon the walk that might impede safe passage and cause a pedestrian to fall and injure himself. Cf. Gentile v. National Newark & Essex Banking Co., supra, (owner who blocked crosswalk in front of owner's premises with a mound of snow held under duty to pedestrian). A similar obligation would exist if the foreign substance had been deposited on the sidewalk by some third person. Cf. Christine v. Mutual Grocery Co., 119 N.J.L. 149 (E. & A. 1937) (holding store owner owed duty to pedestrian to remove bag of ...


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