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Borges v. Hamed

Decided: March 23, 1990.

ALBERTINA BORGES, PLAINTIFF,
v.
FAIEZ HAMED AND LOURDES HAMED, DEFENDANTS



DeStefano, J.s.c.

Destefano

[247 NJSuper Page 353] This is a motion for summary judgment by defendant homeowners. The question presented is whether a three family, owner-occupied house, with two rental units, is "commercial"

property for purposes of extending liability for a defective abutting sidewalk under the authority of Stewart v. 104 Wallace Street Inc., 87 N.J. 146, 432 A.2d 881 (1981).

Plaintiff, Albertina Borges, tripped and fell on a cracked sidewalk abutting defendants' property. Borges suffered facial injuries, including a fractured nose. She brings this action alleging negligence in the maintenance of the sidewalk. The sidewalk where plaintiff fell was in place before the defendants purchased the house. There is no indication of when the sidewalk was constructed or by whom. Defendants have made no repairs to the sidewalk. There is no evidence that anyone made repairs.

The defendants, Faiez Hamed and Lourdes Hamed, are husband and wife. They purchased a three family house located at 1451-1455 Concord Place, Elizabeth, in February 1979. The first floor is occupied by Lourdes Hamed's sister, her husband and two children. The second floor is occupied by Mrs. Hamed's mother, stepfather and two brothers. The third floor is occupied by Mr. and Mrs. Hamed. The entire family has lived in this residential neighborhood for eleven years. Mrs. Hamed's mother and sister pay monthly rent.

In Yanhko v. Fane, 70 N.J. 528, 362 A.2d 1 (1976) the Supreme Court held,

"an abutting owner is not liable for the condition of the 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." Id. at 532, 362 A.2d 1.

In Stewart v. 104 Wallace Street Inc., supra, the Supreme Court held that,

"commercial land owners 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." Id. at 157, 432 A.2d 881.

The Stewart decision did not impose a duty to maintain abutting sidewalks on owners of residential property. The Court specifically left that determination to the Legislature. Id. at 159, fn. 6, 432 A.2d 881. The Court also remarked that

commonly accepted definitions of "commercial" and "residential" property would apply. An apartment building is an example of "commercial" ...


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