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Brown v. St. Venantius School

Decided: August 8, 1988.


On appeal from the Superior Court, Appellate Division.

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


The narrow question presented in this appeal is whether a private school operated by a nonprofit religious organization is liable to a nonbeneficiary pedestrian for injuries caused by the school's failure to remove snow and ice from an abutting sidewalk.

In Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981), this Court held "that commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so." Subsequently, in Mirza v. Filmore Corp., 92 N.J. 390 (1983), we held that maintenance of public sidewalks abutting commercial properties includes removal or reduction of snow and ice where a reasonably prudent person would do so under the circumstances. Both decisions specifically limited their holdings to "commercial" property owners and specifically did not extend the doctrine to "residential" property owners. The issue, therefore, is whether under those decisions defendant falls within the category of a "residential" property owner or a "commercial" property owner. Additionally, we consider whether the New Jersey Charitable Immunity Act, N.J.S.A. 2A:53A-7, shields defendant from tort liability under these circumstances.


The question arises within the context of defendants' successful motion for summary judgment. Accordingly, in considering the facts we grant plaintiff the benefit of all favorable inferences. At approximately 8:00 a.m. on January 21, 1982, as she was walking to work, plaintiff, Ann Brown, slipped and fell on the public sidewalk abutting St. Venantius School in Orange. She testified during her deposition that after stepping off a public bus, she proceeded to walk along the sidewalk where she slipped and fell on snow and ice that had accumulated there. Plaintiff contends that the sidewalk had not been cleared,

sanded, or salted, and as a result of defendant's negligence, she sustained extensive injuries from her fall.

Plaintiff fractured her leg, requiring hospitalization and surgery. Plaintiff asserts that as a result of her injuries, she was unable to work for four weeks in 1982 and six weeks in 1983. She continues to suffer pain and is permanently disabled.

Plaintiff brought suit against defendants, St. Venantius School and the Roman Catholic Archdiocese of Newark, charging them with negligence in failing to remove the natural accumulation of ice and snow on the sidewalk. Given our disposition of this appeal, we do not distinguish between these defendants throughout our opinion. On remand, either or neither of these defendants could ultimately be liable.

Defendant St. Venantius School was a part of St. Venantius Church, a religious corporation organized pursuant to N.J.S.A. 16:15-1 to -8. Defendants represent that defendant Roman Catholic Archdiocese of Newark, a distinct legal entity organized pursuant to N.J.S.A. 16:15-9 to -17, did not own, operate, or control either the property on which the Church was located or the property on which the School was located.

Defendants moved for summary judgment, contending that as a noncommercial landowner, St. Venantius had no duty to maintain the abutting sidewalk. The Law Division granted defendants' summary judgment motion. Subsequently, defendants represented that due to declining membership and financial hardship, St. Venantius Church has dissolved and St. Venantius School has closed.

The Appellate Division affirmed the trial court's ruling with one judge dissenting. The per curiam majority opinion construed Stewart v. 104 Wallace St., Inc., supra, 87 N.J. 146, as limiting sidewalk liability to "enterprises for profit engaged in the buying and selling of goods or services." Although recognizing that "defendants' parochial school charges tuition to students, pays teachers and others and buys supplies, all aspects of a 'business' operation," the court held that the nonprofit

nature of the School renders it "non-commercial" and thus immune from sidewalk liability under Stewart.

The dissenting judge in the Appellate Division took the opposite approach, deeming the School to be "non-residential" and within the "commercial" category under Stewart, and therefore subject to sidewalk liability:

The rationale of the rule was that, as between an injured plaintiff and an abutting commercial owner, fairness dictates placing the burden for the loss upon the property owner who can through insurance spread the cost of the injury to the users of its products or services. The rule protects homeowners who would be required to absorb the cost of insurance, since they have no customers or receivers of services to whom to pass those costs. . . . Those charitable institutions which charge for their services can increase their prices slightly to defray the cost of appropriate insurance, or if no charges are made, they may look to their funding sources for this slight increase. This result is less harsh than imposing the entire loss upon plaintiff who was injured by the negligent maintenance of the sidewalk.

By virtue of the dissent, plaintiff appealed to this Court as of right under Rule 2:2-1(a)(2). The appeal is limited solely to the legal question raised by the dissent. We reverse.


In Stewart v. 104 Wallace Street, Inc., supra, we held that commercial landowners are responsible for maintaining, in reasonably good condition, sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so. Prior to our ruling in Stewart, abutting landowners, commercial and residential, had not been held responsible for the maintenance of abutting sidewalks. See Yanhko v. Fane, 70 N.J. 528 (1976). In Stewart, we specifically restricted the responsibility to commercial landowners. Stewart v. 104 Wallace St., Inc., supra, 87 N.J. at 150.

In Stewart we cited several reasons for our holding. First, we recognized the unfairness in immunizing commercial property holders who had the ability to foresee sidewalk accidents and who merely sat idly by and did nothing. Stewart v. 104 Wallace St., Inc., supra, 87 N.J. at 154. Second, we acknowledged that our prior no-liability rule left many innocent victims

of sidewalk accidents without any recourse due to the statutory limitations on the liability of public entities. Id. at 155 & n. 3. Third, we observed that a no-liability rule gave property owners "no incentive to repair deteriorated sidewalks and thereby prevent injuries." Id. at 155. "Indeed," the Court noted, "[a no-liability rule] actually provides a disincentive since an owner, presently not liable for failure to repair, will be liable for repairs voluntarily undertaken but negligently performed." Id. at 155 (citing Murray v. Michalak, 58 N.J. 220, 223 (1971) (Proctor, J., dissenting)); Snidman v. Dorfman, 7 N.J. Super. 207, 211 (App.Div.1950). We also acknowledged that a primary foundation of our earlier no-liability rule no longer existed. Id. 87 N.J. at 155-56. If municipalities at one time had the sole responsibility for maintaining sidewalks, they no longer did. State law expressly authorizes municipalities to impose a duty on property holders to repair abutting sidewalks. See N.J.S.A. 40:65-14. Finally we recognized an anomaly in our old no-liability rule, at least as that rule applied to commercial landowners: "in accidents occurring within the boundaries of business premises, a plaintiff injured as a consequence of defendant's failure to maintain safe premises would have a cause of action, whereas the same plaintiff injured on a poorly maintained sidewalk just outside the premises would, under the present law, have no such cause of action." Stewart v. 104 Wallace St., Inc., supra, 87 N.J. at 157 (citing Yanhko v. Fane, supra, 70 N.J. at 543-44 (Pashman, J., dissenting)).

We summarized the advantages of imposing a duty on commercial landowners for sidewalk maintenance as follows:

This new rule responds to many of the weaknesses of the no liability rule. It will provide a remedy to many innocent plaintiffs for injuries caused by improper maintenance of sidewalks. As a corollary, it will give owners of abutting commercial property an incentive to keep their sidewalks in proper repair, a duty already created in many cases by municipal ordinances. It will also eliminate much of the arbitrariness of the old rule. In addition, injured persons will be able to recover for injuries sustained just outside a store as well as those sustained within it.

Furthermore, as has been noted, the owners of abutting property, particularly commercial property, retain considerable interests in and rights to use sidewalks over and above those of the public -- a fact which renders imposition of the duty of maintenance upon them appropriate and not "arbitrary," as suggested in Yanhko, supra. Logic and common sense also support the imposition of this duty, inasmuch as owners of abutting property are in an ideal position to inspect sidewalks and to take prompt action to cure defects. [Id. at 157-58 (emphasis added & citations omitted).]

In Mirza v. Filmore Corp., supra, 92 N.J. 390, we recognized a duty, again limited to commercial landowners, to remove snow and ice from abutting sidewalks in instances where such removal would be the standard of care expected of a reasonably prudent person under the circumstances. Mirza essentially made snow and ice removal a part of the general maintenance responsibility for commercial landowners articulated in Stewart.

In specifically limiting the new liability rule to commercial landowners, we observed in Stewart that the condition of abutting sidewalks is "'so beneficially related to the operation of the business'" that liability is warranted. Stewart v. 104 Wallace St., Inc., supra, 87 N.J. at 159 (quoting Krug v. Wanner, 28 N.J. 174, 179-80 (1958)). We also recognized that the potential increased expense of insurance will be more burdensome to small firms than to large ones. Id. at 160. In Mirza, we commented that the risk of loss to or the burden of higher insurance premiums for commercial property owners as the result of the newly imposed sidewalk liability could be spread "through ...

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