On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County.
Approved for Publication April 24, 1997.
Before Judges Havey, Brochin and Kestin. The opinion of the court was delivered by Kestin, J.A.D. Brochin, J.A.D., (dissenting)
The opinion of the court was delivered by: Kestin
The opinion of the court was delivered by
This appeal represents yet another episode in the continuing saga of the development of sidewalk liability law in New Jersey. Plaintiff incurred serious injury when he slipped and fell on an accumulation of ice on a public sidewalk in front of defendants' property, a co-owned, two-family home in which only one of the co-owners resides, with the remaining residential unit rented to tenants by the other co-owner.
The trial court dismissed the complaint on defendants' motion for summary judgment, after classifying the property as residential, and holding as a result, in accordance with the prevailing rule, that defendants owed no legal duty to plaintiff to maintain the abutting sidewalk in a safe condition. If the trial court erred in its classification determination, i.e., if the property in question is, as a matter of law, to be considered as commercial by reason of the fact that a portion of the premises is rented, the law imposes a duty on the owners to take reasonable steps to maintain abutting sidewalks.
In Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981), the Supreme Court modified the previous rule of "no liability", see Yanhko v. Fane, 70 N.J. 528, 362 A.2d 1 (1976), and 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." In Mirza v. Filmore Corp., 92 N.J. 390, 456 A.2d 518 (1983), the duty was held to include removal or reduction of snow and ice as well as repair.
We hold therefore that maintenance of a public sidewalk in a reasonably good condition may require removal of snow or ice or reduction of the risk, depending upon the circumstances. The test is whether a reasonably prudent person, who knows or should have known of the condition, would have within a reasonable period of time thereafter caused the public sidewalk to be in reasonably safe condition.
[ 92 N.J. at 395-96 (footnote omitted).]
A lessee in exclusive possession of commercial premises abutting the sidewalk is subject to the same duty, Antenucci v. Mr. Nick's Mens Sportswear, 212 N.J. Super. 124, 129-30, 514 A.2d 75 (App. Div. 1986), but not to the extent of absolving the landlord from responsibility. Vasquez v. Mansol Realty Assoc., 280 N.J. Super. 234, 237-38, 655 A.2d 82 (App. Div. 1995). It is clear, however, that the duty does not extend to the owners of residential property. Brown v. St. Venantius Sch., 111 N.J. 325, 327, 544 A.2d 842 (1988); see also Liptak v. Frank, 206 N.J. Super. 336, 338-39, 502 A.2d 1147 (1985), certif. denied, 103 N.J. 471 (1986).
The Supreme Court in Stewart foresaw that problems would arise in close cases in determining whether a particular parcel of abutting real estate was commercial or residential. It ordained: "As for the determination of which properties will be covered by the rule we adopt today, commonly accepted definitions of 'commercial' and 'residential' property should apply, with difficult cases to be decided as they arise." 87 N.J. at 160. The Court specifically declared in a footnote that "apartment buildings would be 'commercial' properties covered by the rule." Ibid. Since Stewart, there has been a quest for a bright line approach that would serve to identify "commercial" properties covered by the Stewart /Mirza rule and "residential" properties not subject to it.
In Hambright v. Yglesias, 200 N.J. Super. 392, 491 A.2d 768 (App. Div. 1985), we held that a non-owner-occupied, two-family house was a commercial property for purposes of the Stewart /Mirza rule:
The court [in Stewart ] made it clear that it was the nature of the ownership that mattered, not the use to which the property is put. Apartment buildings are residential in the sense that they are places where people live; they are commercial in the sense that they are operated by their owners as a business. In the instant case, it is undisputed the property was owned and operated by defendant as a business venture. It was, therefore, a commercial property within the meaning of Stewart and Mirza. We express no opinion as to the result where a two-family house is partly owner-occupied.
[ Id. at 395 (footnote omitted).]
The Supreme Court's subsequent decision in Brown v. St. Venantius School, (supra) , 111 N.J. at 332-35, however, rested on an analysis that differed from our approach in Hambright. See also id. at 340-41 (Clifford, J., Concurring); id. at 342-43 (Pollock, J., Concurring). In Brown, the property was operated as a private parochial school by a not-for-profit religious corporation. The Court emphasized that the use of the property was critical. Beginning with the self-evident proposition that a school is not a residential use, the Court observed that, although there might be a question whether a not-for-profit private school should be considered to be a commercial use, a private school run for profit would clearly be commercial. The Court focused upon the nature of the use, emphasizing its non-residential character and holding that the owner's existence as a not-for-profit religious corporation had no bearing upon its duty under Stewart /Mirza when it was conducting an activity on the property that was not residential.
We see no reason why a nonprofit private school run by a charity should receive a greater benefit than any other private school as against the right of a plaintiff to recover for his or her injuries caused by the failure of the school to maintain properly its abutting sidewalk.
Soon after Brown, a Law Division decision was based upon the proposition that "both the use made of the property and the nature of the ownership are factors to be considered in the analysis of whether or not property abutting a public sidewalk is commercial or residential." Gilhooly v. Zeta Psi Fraternity, 243 N.J. Super. 201, 206, 578 A.2d 1264 (Law Div. 1990). A fraternity house at a college was seen as a hybrid, with residential qualities in respect of those members who lived there, and commercial qualities akin to a social club for members and alumni who did not. This determination was based, in part, upon the facts that all members of the fraternity -- a nonprofit organization -- paid dues used to fund social functions, and that those who resided at the house paid additional fees for room and board. The court went on to hold "that where property is partially commercial and partially non-commercial the former will take precedence in the application of the rule in Stewart." Id. at 205.
In Borges v. Hamed, 247 N.J. Super. 353, 589 A.2d 199 (Law Div. 1990), aff'd o.b., 247 N.J. Super. 295 (App. Div. 1991), defendants occupied one residential unit in their three-family home. Relatives who paid rent resided in the other two units. In granting defendants' motion for summary judgment, the trial court Judge relied, in part, upon an administrative regulation promulgated pursuant to the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. The regulation, N.J.A.C. 13:45A-16.1, defines "residential or non-commercial property" as a structure used, in whole or in substantial part, as a home or place of residence by any natural person, whether or not a single or multi-unit structure, and that part of the lot or site on which it is situated and which is devoted to the residential use of the structure, and includes all appurtenant structures.
The trial court Judge went on to stress the Supreme Court's characterization of the property involved in Brown :
"Clearly, defendant St. Venantius School, a private school, is not a residential property. No one resides in the school." ...