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Norris v. Borough of Leonia

July 26, 1999

ANGELA NORRIS AND GEORGE NORRIS, PLAINTIFFS-RESPONDENTS,
v.
BOROUGH OF LEONIA, DEFENDANT-APPELLANT, AND JOHN DOE (SAID NAME BEING FICTITIOUS AND UNKNOWN), JOHN ROE (SAID NAME BEING FICTITIOUS AND UNKNOWN), ROE DOE (SAID NAME BEING FICTITIOUS AND UNKNOWN), DEFENDANTS.



The opinion of the court was delivered by: Handler, J.

On certification to the Superior Court, Appellate Division.

This matter arises from injuries sustained by a pedestrian when a curb gave way as she stepped onto it, causing her to fall to the ground. The issue in this appeal is whether a municipality may be held liable for the negligent maintenance of the curb. In addressing that issue, we must consider whether the common law immunity historically accorded municipalities for sidewalk wear and tear absolves a public entity from negligent curb maintenance, or whether negligent curb maintenance is subject to the standard of liability applicable to a dangerous condition of improved public property under the Tort Claims Act.

I.

On September 3, 1995, plaintiff, Angela Norris, sustained severe injuries when the curb in front of her home in the Borough of Leonia collapsed as she stepped onto it, causing her to fall into the street. Plaintiff required extensive physical therapy, incurring medical bills in excess of $17,000.

Plaintiff and her husband, George Norris, filed a complaint against defendant, Borough of Leonia, under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (TCA or Act). They alleged that "due to the careless, reckless and negligent operation, supervision, management and/or maintenance of the curbing . . . a palpably unreasonable and dangerous condition was created causing plaintiff . . . severe personal injuries." Defendant moved for summary judgment, asserting common law immunity for the natural deterioration and/or defective condition of the curb, and statutory immunity under the TCA, specifically relying on N.J.S.A. 59:2- 6, providing immunity for failure to make an inspection or make an inadequate or negligent inspection of its property, and N.J.S.A. 59:2-3, establishing immunity for its exercise of judgment or discretion relative to the curb in question. Moreover, defendant argued that plaintiffs failed to establish prima facie proof of the existence of a dangerous condition, required for municipal liability under N.J.S.A. 59:4-2, and actual or constructive notice of the dangerous condition pursuant to N.J.S.A. 59:4-3.

The trial court granted summary judgment in favor of defendant. The court concluded that a municipality is entitled to a common law immunity for "the natural deterioration of sidewalks and curbs" and, further, that defendant was entitled to an immunity defense under the TCA to a claim based on any alleged lack of inspection, and that plaintiffs failed to establish a basis for liability under the Act.

Plaintiffs appealed, and the Appellate Division, in an unpublished per curiam opinion, reversed the trial court's order granting defendant's motion for summary judgment. The Appellate Division concluded that if the curb were part of the sidewalk and otherwise subject to municipal control, municipalities, like commercial landowners, no longer retained the common law immunity for the general wear and tear of sidewalks. The Appellate Division also rejected an immunity defense relating to inspections. The court further determined that a curb, whether a part of the street or the sidewalk, if under municipal control, would be subject to the liability standard applicable to public property under the TCA. Accordingly, the Appellate Division remanded the matter for trial.

Defendant filed a petition for certification, which this Court granted. 156 N.J. 428 (1998).

II.

We consider initially defendant's claim, asserted by way of defense, that even if the curb is considered part of the sidewalk and otherwise subject to municipal control, the municipality is entitled to the common law immunity for the deterioration of sidewalks, including curbs, that is accorded private landowners and municipalities. The Appellate Division rejected that defense, concluding that, like a commercial landowner, a municipality no longer retained common law immunity for the general wear and tear of sidewalks. The applicability of that immunity becomes relevant under the TCA, which provides:

"Any liability of a public entity established by this act is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity if it were a private person." [N.J.S.A. 59:2-1(b).]

A.

The rule that an adjoining property owner is not liable for injuries sustained as a result of the natural deterioration of an abutting sidewalk has a long history. See Moskowitz v. Herman, 16 N.J. 223, 225 (citing Rupp v. Burgess, 70 N.J.L. 7 (Sup. Ct. 1903); Rose v. Slough, 92 N.J.L. 233 (E. & A. 1918); Murphy v. Fair Oaks Sanatorium, 127 N.J.L. 255 (E. & A. 1941)). The rule stems from English common law, which provided that "'the parish at large is prima facie bound to repair all highways lying within it.'" Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 153-54 (1981) (quoting The King v. Inhabitants of Sheffield, 2 T.R. 106, 111, 100 E.R. 58, 61 (K.B. 1787)). Influenced by this reasoning, early New Jersey cases placed the primary responsibility for the maintenance of sidewalks on the government. Ibid. (citing Mount v. Recka, 35 N.J. Super. 374, 380 (App. Div. 1955)). A public entity's duty to maintain sidewalks at common law, however, was in turn nullified by the general shield of sovereign immunity, which absolutely absolved it from any liability for dangerous conditions on public property, except when its own "active wrongdoing" or "positive misfeasance" created the hazard. See Milstrey v. City of Hackensack, 6 N.J. 400, 408 (1951).

1.

The common law sidewalk immunity became a frequent and recurring object of criticism for much of this century, particularly in its application to private commercial landowners. Rarely, if ever, has a tort doctrine been "as vigorously and continuously challenged for as long a period of time and by as many Justices of [this] Court as the doctrine [of immunity for a commercial landowner's negligent failure to maintain abutting sidewalks.]" Cogliati v. Ecco High Frequency Corp., 181 N.J. Super. 579, 584 (App. Div. 1981), aff'd, 92 N.J. 402 (1983).

In Moskowitz, supra, the rule was first challenged by Justice Jacobs, joined by Chief Justice Vanderbilt, who wrote that "[t]he [] doctrine is pregnant with seeds of gross inJustice for it tends to immunize the wrongdoer whose flagrant neglect of duty has caused injury to an innocent party who is left with recourse against no one." 16 N.J. at 228 (Jacobs, J., Dissenting). Justice Jacobs reasoned that when a defendant's building is used for commercial purposes, the adjacent sidewalk is used by business patrons and is thus "directly beneficial to the operation of the business." Id. at 230. Noting that the responsibility for constructing and maintaining sidewalks was no longer the sole province of municipalities, but rather, was increasingly statutorily imposed on abutting landowners, Justice Jacobs wrote:

"Much may be said for the position that, in the light of current urban conditions, landowners (at least those engaged in commercial activity) should now be held accountable . . . for damages resulting from their failure to discharge their statutory duty of maintaining the sidewalks in front of their premises." [Id. at 228.]

Nearly twenty years later, Justice Proctor, joined by Justice Jacobs, vigorously attacked the continued viability of the common law rule as "manifestly unjust." Murray v. Michalak, 58 N.J. 220, 223 (Proctor, J., Dissenting). Although indicating that he would place a duty to maintain abutting sidewalks on all property owners, Justice Proctor conceded that "[t]he Court [] need go no further than to hold that such a duty of repair exists for the owner of commercial premises[,]" id. at 225, writing:

"For the protection of its patrons, every commercial establishment must maintain its premises, including means of ingress and egress, in reasonably safe condition (citing cases). And although the paved sidewalks fronting a commercial establishment are primarily for the use of the public generally, their condition is so beneficially related to the operation of the business that the unrestricted legal duty of maintaining them in good repair might, arguably, be placed on it." [Ibid. (quoting Krug v. Wanner, 28 N.J. 174, 179-80 (1958)).]

In Yanhko v. Fane, 70 N.J. 528 (1976), Justice Pashman, joined by Justice Schreiber, Dissented from the majority's decision to reaffirm the common law sidewalk immunity for private landowners. Id. at 537 (Pashman, J., Dissenting). The majority reasoned that it would not be fair to hold an abutting landowner liable for sidewalk maintenance when such an owner "makes no use of the sidewalk other than pedestrian passage thereover in common with the public generally." Id. at 533. Justice Pashman disagreed, noting that commercial landowners enjoy numerous rights in respect of abutting public easements, and therefore "there is an obvious distinction" between those landowners and "pedestrians who may simply use the public easement." Id. at 541 (Pashman, J., Dissenting). The Dissent then analogized the imposition of liability on commercial landowners for the negligent maintenance of abutting sidewalks to the liability already imposed in respect of their business establishments:

"If it is conceded that plaintiff would have had a claim against defendant had she been actually injured within defendants' store, it makes little sense to reach a contrary result where she sustains her injury elsewhere on the business property of the defendant-landowner. If the landowners were aware of the dangerous condition of the sidewalk, and failed to take the necessary action to correct it, plaintiffs' right to bring suit should not depend on the fortuitous misfortune of where the injury occurred on defendants' property." [Id. at 543-44.]

These criticisms of the common law rule were ultimately acknowledged and accepted in Stewart, supra, wherein the Court "overrule[d] Yanhko and [held] that a plaintiff has a cause of action against a commercial property owner for injuries sustained on a deteriorated sidewalk abutting that commercial property when that owner negligently fails to maintain the sidewalk in reasonably good condition." 87 N.J. at 149. Noting that responsibility for the provision and maintenance of sidewalks had evolved from origins that rested exclusively on municipalities, to a delegation of responsibility between municipalities and owners of abutting commercial lands, the Court concluded that "the present `no liability' rule is derived from conditions that no longer exist and is not responsive to current urban conditions." Id. at 155-56. Creating potential liability for commercial landowners, the Court wrote, 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 . . . [and] will eliminate the arbitrariness of the old rule. . . [since] injured persons will be able to recover for injuries sustained just outside a store as well as those sustained within it." [Id. at 157-58.]

The Court further explained that this exception was warranted because commercial landowners retained considerable interest in, and especially valuable rights to use, abutting sidewalks, including

"a cause of action to prevent obstruction of the public's view of [the commercial property] from the sidewalk . . . 'use of the adjacent sidewalk for stoops . . . and other domestic or trade conveniences' . . . [and] easy access to their premises and increase[d] [] value of their property." [Id. at 151-52 (citations omitted).]

The Court therefore imposed a duty to maintain a sidewalk in a reasonably good condition on owners of commercial property, while retaining the common law sidewalk immunity for residential landowners. Id. at 159. *fn1

2.

Following the adoption of the TCA, courts were confronted with whether to continue to apply the common law immunity for the wear and tear of sidewalks to municipalities that was recognized in Milstrey, supra, 6 N.J. at 408. The TCA cloaks a municipality with the common law immunities available to public entities prior to the Act, as well as with any defenses applicable to private persons. N.J.S.A. 59:2-1(b). Thus, a municipality under the TCA is conceivably immune from liability for ...


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