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Gilhooly v. Zeta Psi Fraternity

Decided: April 20, 1990.

MARGARET GILHOOLY AND EDWARD GILHOOLY, PLAINTIFFS,
v.
ZETA PSI FRATERNITY, ABC CORP., AND JOHN DOE, NAME FICTITIOUS, THE TRUE IDENTITY UNKNOWN, DEFENDANTS



Lintner, J.s.c.

Lintner

[243 NJSuper Page 202] This court is asked to decide whether a college fraternity is "residential" or "commercial" for the purpose of determining tort liability in accordance with the principles set forth in Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 432 A.2d 881 (1981).

Defendant Zeta Psi owns and maintains a fraternity house on the New Brunswick campus of Rutgers University which abuts a public sidewalk running along College Avenue. Plaintiff Margaret Gilhooly was walking to her office, having attended church services, when she fell on the public sidewalk in front of defendant's fraternity house sustaining personal injuries. Defendant contends that it is entitled to summary judgment as an owner of residential property pursuant to the rule of nonliability set forth in Stewart, supra. For the purposes of its motion defendant concedes that the sidewalk was in disrepair.

Our Supreme Court set forth the general rule of law applicable to the maintenance of public sidewalks in Stewart, supra. Prior to Stewart abutting landowners, "whether commercial or residential" were not responsible for the care and maintenance of abutting sidewalks. See Yanhko v. Fane, 70 N.J. 528, 362 A.2d 1 (1976). Stewart changed the existing law of nonliability enunciated in Yanhko, holding commercial landowners responsible for the maintenance of abutting sidewalks, thereby creating liability in favor of pedestrians who are injured as a result of negligent maintenance on the part of an abutting owner. In citing reasons for its holding, imposing liability on commercial landowners, the court in Stewart, 87 N.J. at 157, 432 A.2d 881, indicated that it would give the owners of commercial property an incentive to keep their sidewalks in good repair, rather than create an incentive to do nothing, as was evident under the old rule of nonliability.

Additionally, because commercial landowners retain considerable interest in the use of the abutting sidewalk, that is to say, the sidewalk is beneficially related to the operation of the commercial enterprise, the Supreme Court reasoned that logic would favor a remedy for the innocent pedestrian thereby eliminating the arbitrariness of the old rule. See Stewart, supra at 158, 432 A.2d 881.

Defendant argues that the property in question, which is owned by the Zeta Psi Alumni Association, is used exclusively

as a home for undergraduate students who are members of the fraternity and is therefore residential in character. In support of its position, defendant points out that the Alumni Association which oversees the operation is comprised of noncompensated individuals who volunteer their services. Defendant further asserts that, with the exception of the chef, there are no paid positions at the fraternity, that the fraternity house itself provides living space for 42 undergraduate members who each pay a fee for room and board which includes two meals per day Monday through Friday.

While defendant maintains that the sole purpose of the house is to provide a place for fraternity members to live while attending school, it was conceded at oral argument that many of the student members reside in dormitories and other nonfraternity owned housing. These nonresident members do not ordinarily eat at the fraternity house and therefore do not pay for either room or board. All members, however, whether residents or not, pay dues which are utilized by the fraternity to pay for social functions. Payment of dues by members who reside at the house is in addition to the fee charged for room and board. The fraternity house is a nonprofit organization.

While resident members utilize the fraternity house for its living quarters and dining facilities, the house is open to all members for the purposes of socializing and related functions. These social functions include dances and parties to which all members are permitted to bring nonmember guests of their choosing. The house is also available for use by alumni for social events.

Unlike the defendant here, the defendant in Stewart owned a tavern and was therefore a commercial landowner in the classic sense. While the court in Stewart indicated that the determination of commercial versus residential should follow "commonly accepted definitions," it recognized that difficult cases may arise and that the question of whether property is commercial or residential for the purposes of sidewalk liability may have to

be decided on a case by case basis. Stewart, supra at ...


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