On appeal from Superior Court, Law Division, Essex County.
Morton I. Greenberg, J. H. Coleman and Gruccio. The opinion of the court was delivered by: Gruccio, J.A.D.
Defendant City of Newark appeals from a jury verdict awarding damages to plaintiff Lulamae Christmas for injuries sustained when she fell on a sidewalk located in Newark, situated on property owned by the Trustees of the First Presbyterian Church ("Trustees") and leased to a doughnut shop. Trustees were dismissed upon summary judgment since the statute of limitations had expired before they were made parties to the action. The operator of the doughnut shop was never made a party here.
When trial commenced, defendant brought a motion in limine for dismissal of plaintiff's complaint in that a municipality has no duty to repair or maintain the sidewalks abutting commercial property and, therefore, as a matter of law, could not be found liable to plaintiff. In denying the motion, the trial judge opined that the issue of whether or not defendant was liable to plaintiff for her injuries was for the jury to decide. Prior to opening statements, defendant dismissed without prejudice its cross-claim against the Trustees since they were no longer a party to the action.
At the close of plaintiff's case, defendant moved for an involuntary dismissal based on plaintiff's failure to satisfy the requirements of N.J.S.A. 59:4-2. The motion was denied. The jury returned a verdict finding defendant 80% negligent and plaintiff 20% negligent and awarded plaintiff damages in the amount of $25,000. After molding the verdict in accordance with N.J.S.A. 59:9-4 and allocating deductions pursuant to N.J.S.A. 59:9-2e, the trial judge entered judgment in favor of plaintiff in the amount of $19,300.
On appeal defendant contends that the trial court erroneously denied its motion to dismiss plaintiff's case at the close of her proofs since, based on the factual situation presented, the sidewalk where plaintiff fell was not public property within the meaning of the New Jersey Tort Claims Act; defendant is immune from liability on the basis of common law, which has
not changed since enactment of the Tort Claims Act, and the responsibility for the maintenance and repair of the sidewalk abutting a commercial property lies, not with defendant, but with the commercial property landowner. We agree.
In 1972, New Jersey enacted the Tort Claims Act, N.J.S.A. 59:1-1, et seq., in response to the Supreme Court's decision in Willis v. Conservation and Economic Dev. Dept., 55 N.J. 534 (1970) which all but eliminated sovereign immunity in actions brought against the State and other public entities. In enacting that statute, the Legislature recognized that while an entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore the government should not have the duty to do everything that might be done. N.J.S.A. 59:1-2. Consequently, the Legislature declared "that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. . . ." N.J.S.A. 59:1-2.
Even before the act, however, our Supreme Court acknowledged and applied the doctrine that "there are several kinds of acts or omissions of government, no matter how they are categorized, defined or labeled, or how governmental immunity from suit is to be regarded, which should not give rise to tort liability." Horan v. State, 212 N.J. Super. 132, 135 (App.Div.1986). See also Hoy v. Capelli, 48 N.J. 81, 87 (1966). Most municipalities have within their bounds miles of sidewalks. As our largest city, Newark has a proportionately increased number of miles of sidewalks abutting commercial property.
Here, plaintiff contends the sidewalk upon which she fell is public property and that since defendant failed to maintain and repair the sidewalk, it was liable for her injuries. Liability provisions of the Tort Claims Act for conditions of public property provide:
A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
a. A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. A public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures ...