Before Judges King, Kleiner and Coburn.
The opinion of the court was delivered by: Kleiner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2000
On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Plaintiff Rose Wilson tripped and fell on an allegedly defective public sidewalk abutting a dwelling situated at 611 South Laurel Avenue in Hazlet. *fn1 Seeking damages for her injuries, plaintiff sued the record owners of the property, defendants Donald Jacobs and Shirley Jacobs ("Jacobs"); defendants Township of Hazlet, Hazlet Township Parks Department, and Hazlet Township Roads Department (collectively "Hazlet"); and defendants County of Monmouth, Monmouth County Shade Tree Commission, and Monmouth County Road Department (collectively "Monmouth").
Summary judgment was separately granted to Monmouth, Hazlet and to the Jacobs. Plaintiff appeals only from the grant of summary judgment to Hazlet and Jacobs. We affirm the grant of summary judgment to Hazlet, but reverse the summary judgment to Jacobs.
The Jacobs purchased the property on March 1, 1993. Pursuant to a written lease providing for a year-to-year tenancy, the Jacobs rented the property to their adult daughter, who has resided there with her children since March 1993. Under the terms of the lease, the tenant contracted to pay rent equivalent to the Jacobs' monthly mortgage payment and real estate tax liability. The lease also provided that the Jacobs were responsible for all major repairs; the tenant would be responsible for all minor repairs and general maintenance.
Deposition testimony revealed that the Jacobs have no intention of deeding the property by gift to their daughter. Should the mortgage be satisfied, the Jacobs intend to retain ownership and allow the property to become a part of the estate of the surviving spouse. The Jacobs also indicated that, should their daughter vacate the property, they would sell the property and retain the net proceeds. It is clear that the Jacobs are accruing equity in this property and could be entitled to depreciation and federal and state income tax deductions.
On Jacobs' motion for summary judgment, the motion judge concluded that despite the written lease, the monthly rental, and the accrual of equity, that the property was residential and, as such, the owner was under no obligation to maintain the sidewalk abutting the residence. See Yanhko v. Fane, 70 N.J. 528 (1976).
Consistent with prior cases, the Yanhko court found that:
an abutting owner is not liable for the condition of a 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. [70 N.J. at 532 (citations omitted).]
On appeal, plaintiff contends that the Jacobs' property is commercial and thus the rule of commercial owner responsibility for sidewalk maintenance enunciated in Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981), applies. Stewart held, "[C]ommercial 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." Id. at 157. *fn2
The Supreme Court in Stewart noted that problems would arise in close cases in determining whether a particular parcel of abutting real estate was commercial or residential and cautioned: "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." Id. at 160. In a footnote, the ...