On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-39-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
This is an appeal from a jury's verdict for defendant in a slip and fall negligence case. Plaintiffs, John Melilli and Laura Melilli, filed suit on behalf of their mother's estate, alleging that Felicia Melilli's death, the result of complications from a broken ankle resulting from the fall, was caused by defendant's failure to keep the gutter area of the public roadway in front of its beauty salon clear of snow and ice. The decedent was on her way to the salon when she fell. The sole issue for consideration is whether the trial judge's in limine order was correct in finding that defendant had no duty to maintain the gutter area adjacent to the curb in front of the salon free and clear of snow and ice.*fn1 Two orders of decision were actually signed by the court, one prepared by defendant's counsel which states: to the extent the [plaintiffs'] motion sought to impose a duty on defendant ADM Clips, LLC, to maintain a portion of the public roadway free of ice on the day of the accident, January 11, 2004, near its intersection with the curb line in front of the premises occupied by said defendant, the [plaintiffs'] motion was denied.
The other order, prepared by plaintiffs' counsel states that: "ADM Clips had no duty to maintain the gutter area adjacent to the sidewalk in front of [its] place of business in a reasonably safe condition." We affirm.
The facts below are as developed during the N.J.R.E. 104(a) hearing and pre-trial conference. The decedent was approximately eighty-three years old. The location of the fall is disputed. After she slipped, two passersby found her lying in the street and helped her into the salon, where she remained until an ambulance arrived. Plaintiff John Melilli testified that while hospitalized, his mother told him that she stepped away from the salon door to look for a sign to verify she was at the right place and she "slipped on ice and fell over a pile of snow into the street between two cars." The police incident report states that the decedent slipped on ice as she was stepping from the gutter area of the street onto the sidewalk. She reportedly told one officer that she was crossing the street when she slipped on ice at the curb in front of the beauty salon. She had been driven to her salon appointment by her sonin-law, and dropped off on the street in front of the bank next door as no parking spaces were available right in front of the salon. Her son-in-law claimed the decedent stepped up onto the sidewalk in front of the bank, said goodbye, and started walking towards the salon. A witness named Nuvia Reyes found her lying in the street with her feet directed towards the curb and her head towards the street. Defendant contends that Reyes drew a stick figure representing the decedent on a diagram of the street in front of the bank and not the salon. The owner of the salon also testified that the decedent was in the street in front of the bank.
Plaintiffs essentially seek to extend into the street the well-established doctrine that commercial landowners are responsible for maintaining abutting sidewalks in a reasonably good condition, "and are liable to pedestrians injured as a result of their negligent failure to do so." Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981). Plaintiff urges that the duty of care should extend out into the road when a commercial landowner knows customers will use that pathway for ingress or egress.
The duty to maintain the street in a safe condition rests exclusively with the public entity in charge of it. MacGrath v. Levin Props., 256 N.J. Super. 247, 253 (App. Div.), certif. denied, 130 N.J. 19 (1992). Nonetheless, in testing the outer limits of the Stewart rule, a more flexible approach is employed and rigid application of the rules is discouraged. The inquiry must be based on "'an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.'" Monaco v. Hartz Mountain Corp., 178 N.J. 401, 418 (2004) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993)). It "involves 'identifying, weighing and balancing several factors [including] the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.'" Ibid. (quoting Hopkins, supra, 132 N.J. at 439) (alterations in original).
For example, in Gaskill v. Active Envtl. Techs., Inc., 360 N.J. Super. 530, 536 (App. Div. 2003), the Stewart doctrine was extended to include a pedestrian injured when she tripped and fell on a one-inch raised metal tree grate in front of a commercial property. We left the question for the jury to answer as to whether the commercial landowner should be held liable despite the fact the grate in question was installed by the township and was located in the outer periphery of the sidewalk. Ibid. In Gaskill, there was a fact question as to whether the grate was "structurally an integral part of the sidewalk and [was] used as a pedestrian walkway or means of pedestrian ingress and egress to the abutting property." Ibid. Here plaintiffs seek, however, to extend to defendant the responsibility to maintain the gutter area of the street, beyond the limits of the sidewalk. They are not claiming that a defect, potentially an "integral part of the sidewalk," caused the injury.
No public interest is served by imposing liability on the abutting commercial landowner for maintenance of the roadway in front of his property. This case is more like Chimiente v. Adam Corp., 221 N.J. Super. 580, 581 (App. Div. 1987), where the plaintiff tripped and fell while walking on a dirt pathway over "a grassy slope adjacent to a shopping center parking lot." There, this court found "the public policy underpinnings to the Stewart rule simply do not apply to a private pathway over property that is not owned by the commercial landowner. Stewart's concern that the 'no liability' rule will leave the innocent party without recourse," did not apply. Chimiente, supra, 221 N.J. Super. at 584 (quoting Stewart, supra, 87 N.J. at 155). Not only is there no incentive for a commercial landowner to maintain a public roadway, there is no "legal right, on the part of defendants to assume control and maintenance over property owned by others." Ibid. (citing Stewart, supra, 87 N.J. at 155). In addition, a remedy already exists for those injured on public roadways. See MacGrath, supra, 256 N.J. Super. at 253 (explaining "[l]iability rests with the State, if there exists a dangerous condition in the public way"). No public interest would be served by compelling commercial landowners to duplicate the responsibility of municipal entities to keep the roadway in proper repair, even if they had the authority to do so.
Therefore, we affirm the trial court's order in limine which kept from the jury the question of defendant's duty to maintain a roadway abutting defendant's sidewalk area.