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Bedell v. Saint Joseph's Carpenter Society

March 19, 2004

ARTHUR BEDELL, PLAINTIFF-APPELLANT,
v.
SAINT JOSEPH'S CARPENTER SOCIETY, DEFENDANT-RESPONDENT, AND CITY OF CAMDEN AND HILL INTERNATIONAL, INC., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-6921-01.

Before Judges Havey, Fall and Parrillo

The opinion of the court was delivered by: Parrillo, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 1, 2004

In this trip and fall negligence case, plaintiff Arthur Bedell appeals from summary judgment dismissing his personal injury complaint against the abutting commercial property owner, defendant Saint Joseph's Carpenter Society. The primary issue centers on the liability of a commercial landowner for injuries sustained by a pedestrian on the grassy strip between the sidewalk and curb in front of its building. The motion judge took the view that defendant had no"legal duty" with respect to this area. We hold otherwise and, further, that it is for a jury to determine whether that duty was breached in this instance. Accordingly, we reverse and remand.

We recite the sparse facts disclosed by the summary judgment record, giving plaintiff the benefit of all favorable inferences therefrom. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On November 19, 1999, plaintiff was on his newspaper delivery route on the 2900 block of Berkley Street in Camden. At around 5:10 a.m., after making a delivery to a residence to the rear of his parked car, plaintiff crossed the fifty-foot wide street to make another delivery. When he reached the opposite side of Berkley Street, he mounted the curb and walked along it for a few steps before turning left to cross the grassy strip separating the curb and the sidewalk approximately fifteen feet from the front of defendant's building at 2937 Berkley Street. As plaintiff crossed the grassy strip to reach the sidewalk, he tripped over the roots of a tree stump, fell, and sustained injury.

The 2900 block of Berkley Street is in an urban residential area of Camden, with row homes lining both sides of the street. An unbroken grassy strip runs parallel to the street, between the sidewalk and the curb, and there are no driveways or other gaps in the curb, grassy strip, or sidewalk. Traffic runs in both directions on Berkley Street and parking is permitted only on the side opposite defendant's property. There is no street lighting, nor any lighting provided by defendant, and it was dark at the time of the incident.

It cannot be determined from the record who cut the tree down or when it occurred. An undated photograph shows at one time a tall tree leaning towards defendant's structure from the sidewalk area. In October 1997, defendant, who also owns other buildings in the area, undertook extensive renovations to his properties which he leases to tenants.

Plaintiff brought a personal injury complaint against defendant, the City of Camden and Hill International, Inc., the construction site supervisor hired by defendant to oversee the row house rehabilitation project. All three answered and after discovery, filed motions for summary judgment. Plaintiff opposed only the relief sought by defendant and, after hearing oral argument, the trial court granted summary judgment in favor of all movants dismissing plaintiff's complaint. As to defendant, the judge reasoned that the commercial landowner had no legal duty to plaintiff to maintain the strip of land between the curb and sidewalk adjacent to its property that was neither designed nor intended for pedestrian use. Plaintiff appeals only as to the dismissal of his complaint against defendant, arguing that such a duty exists as a matter of law, and that there are genuine issues of fact as to its breach by defendant to preclude summary judgment relief.

The issue before us arises from the fact that the use of the property abutting the sidewalk and grassy strip is commercial, and that fact is undisputed. See Restivo v. Church of Saint Joseph of the Palisades, 306 N.J. Super. 456, 468 (App. Div.), certif. denied, 153 N.J. 402 (1998). In this regard, it is well settled that commercial landowners are responsible for maintaining abutting sidewalks in reasonably good condition and are liable to injured pedestrians for their negligent failure to do so. Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981). See also Brown v. St. Venantius School, 111 N.J. 325, 327 (1988); Dupree v. City of Clifton, 351 N.J. Super. 237, 242 (App. Div. 2002); Neilsen v. Lee, 355 N.J. Super. 373, 376 (App. Div. 2002); Learn v. City of Perth Amboy, 245 N.J. Super. 577, 580 (App. Div. 1981). The underlying rationale for the imposition of a rule of liability is"the benefits of sidewalks to abutting commercial owners" and the fact that such a rule"would serve the dual purpose of providing recourse to innocent pedestrians and an incentive to abutting commercial owners to keep their sidewalks in good repair." Nielsen, supra, 355 N.J. Super. at 376 (citing Stewart, supra, 87 N.J. at 155). Among the substantial benefits to commercial landowners is the ease of access to and from their establishments by the pedestrian public who have a right"to safe and unimpeded passage along the sidewalk...." Stewart, supra, 87 N.J. at 152.

On the other hand, courts have declined to categorically extend Stewart's rule of liability to curbs, generally reasoning that a curb, separated from the sidewalk by a grassy strip, is more a feature of the road and is, therefore,"a significantly less immediate means of pedestrian ingress and egress to the abutting property than is a sidewalk." Levin v. Devoe, 221 N.J. Super. 61, 65 (App. Div. 1987). Thus, because the primary functions of the curb in Devoe were to"channel surface water from the road into storm drains and to serve as a barrier for cars to park against[,]" ibid., we refused to hold a commercial landowner liable for injuries suffered when a pedestrian tripped and fell on a curb in front of an apartment building as she was attempting to cross the street. Id. at 64. We recognized, however, that in some cases curbs may be"structurally an integral part of... sidewalks" for which the abutting property owner may be liable. Ibid. Of course,"whether a curb is deemed part of a sidewalk... might well depend on the context and facts in the given case." Norris v. Borough of Leonia, 160 N.J. 427, 443-44 (1999). See also MacGrath v. Levin Properties, 256 N.J. Super. 247, 252-53 (App. Div.), certif. denied, 130 N.J. 19 (1992).

While sidewalks remain the responsibility of the adjoining commercial landowner and curbs not structurally an integral part thereof generally fall outside the scope of any legal duty, no published opinion in this State has specifically addressed the grassy strip in between. Nevertheless, courts have confronted the liability issue in analogous contexts.

In Chimiente v. Adam Corp., 221 N.J. Super. 580, 582-83 (App. Div. 1987), the plaintiff tripped and fell while traversing a dirt pathway over a grassy slope adjacent to a shopping center parking lot, created by the public for its own convenience. We rejected the invitation to extend the Stewart liability rule to a third-party's land neither designed nor intended for pedestrian use where the shopping center owner provided safe passage to its parking lot through other existing entrances. 221 N.J. Super. at 584-85.

In May v. Atlantic City Hilton, 128 F. Supp.2d 195 (D.N.J. 2000), a pedestrian was injured while attempting to cross a street outside a casino-hotel when she stepped off the curb area into the street gutter where there was a built-up handicap access ramp. The ramp, which was designed and built by Atlantic City, occupied the gutter area and extended from the top of the curb down to street level for the entire ten-foot radius of the street corner. Id. at 197. The casino-hotel argued that it owed no duty to the plaintiff because the dangerous condition arose not in the sidewalk, but in the gutter area of the street. In rejecting this particular argument, the court noted that the ramp might be considered an integral part of the sidewalk for liability purposes. Id. at 200. The court reasoned that"[t]he fact that the ramp is adjacent to the curb rather than in the ...


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