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Levin v. Devoe

Decided: October 30, 1987.

CAROL LEVIN AND JOSEPH LEVIN, PLAINTIFFS-APPELLANTS,
v.
GEORGE W. DEVOE, CY SALTZMAN AND THE ESTATE OF MILTON SALTZMAN, INDIVIDUALLY AND AS PARTNERS OF CAFCO, A PARTNERSHIP ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Brody, Long and Scalera. The opinion of the court was delivered by Brody, J.A.D.

Brody

In this appeal we hold that the duty of a commercial property owner to maintain abutting sidewalks does not extend to maintaining curbs that are separated from the sidewalk by a grass strip.

Plaintiff Carol Levin (plaintiff) sustained personal injuries when she tripped and fell on the curb in front of defendants' apartment building as she was about to cross the street. Her husband, plaintiff Joseph Levin, sues per quod.

Defendants' building is on a two-way street. Plaintiff parked her automobile in front of the building, got out on the passenger side, walked to the rear of the vehicle along a grass strip between the sidewalk and curb, and fell when she stepped on the curb as she was about to cross the street behind her vehicle. Accepting plaintiffs' claim that the curb had fallen into dangerous disrepair, Judge Mannion nevertheless granted defendants' motion for summary judgment on the ground that defendants owed plaintiffs no duty to maintain the curb.

To arrive at the present state of the law regarding the duty property owners owe pedestrians to maintain the abutting

public way requires us to consider two Supreme Court opinions, Yanhko v. Fane, 70 N.J. 528 (1976) and Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981). In Yanhko the court summed up the common law in New Jersey on the subject and concluded that precedent established that an abutting property owner does not owe pedestrians the duty to maintain sidewalks against dangerous conditions caused by the public's use, natural deterioration or the acts of third parties. The court followed the precedent.

In its survey of the history of the allocation of the duty of maintenance between abutting property owners and the general public, the Yanhko court described the breadth of the public way to include the sidewalk and the road, and placed the duty of maintaining the public way solely upon the general public, which the Legislature may accept, reject or redirect:

Presumably, defendants' [abutting property owners'] 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. [Citations omitted.] In legal contemplation, the easement of public passage renders the sidewalk an integral part of the public highway. [Citations omitted.]

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. [70 N.J. at 534.]

In Guerriero v. Palmer, 175 N.J. Super. 1, 5-7 (Law Div.1979), the Law Division relied on that language to render a public entity liable under N.J.S.A. 59:4-2 of the Tort Claims Act for a public sidewalk that had become dangerous, subject to the lower standard of care that the Act imposes on public entities for maintaining their property and subject to the Act's qualified immunities.

In Stewart the court carved out an exception to the general rule that an abutting property owner is not liable for deterioration of ...


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