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Jenkins v. Cheong

April 17, 2008

HELEN JENKINS, PLAINTIFF-RESPONDENT,
v.
CHAMPOWTIE CHEONG, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4826-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 10, 2008

Before Judges Parrillo, S.L. Reisner and Baxter.

By leave granted, defendant Champowtie Cheong appeals from the denial of her motion for summary judgment. The motion judge concluded that two municipal ordinances that imposed a duty on a residential landowner to maintain the abutting sidewalk in good repair establish liability for personal injuries when the sidewalk is poorly maintained. We disagree with that conclusion and reverse.

I.

The uncontested facts presented to the judge at the time the motion was argued establish that plaintiff was walking on a sidewalk in front of 18 Langley Place in New Brunswick when she tripped over a portion of the sidewalk that had been raised by a tree root. The property at 18 Langley Place was a single family home owned and occupied by defendant and was used solely for residential purposes. Defendant made no repairs to the sidewalk prior to the date of plaintiff's fall.

After discovery was completed, defendant moved for summary judgment. The court denied her motion, finding that two New Brunswick municipal ordinances created a basis for civil liability against defendant arising out of her failure to maintain the sidewalk in good condition. The relevant municipal ordinances provide as follows:

12.04.010 Duty of owner.

It is the duty of any owner of any lands in the city to keep such sidewalks and curbs maintained and properly repaired so as to minimize any endangerment to the public health, safety and welfare of any individual who might be using the sidewalks and curbs.

12.04.020 Injuries responsibility of owner.

Any injury as a result of poorly maintained or defective sidewalks and curbs is solely the responsibility of the owner or owners of the premises abutting or adjoining such sidewalks and curbs.

When the judge denied defendant's summary judgment motion, he cited Yanhko v. Fane, 70 N.J. 528, 536 (1976), for the proposition that "our cases have consistently refused to find that ordinances requiring landowners to repair or maintain abutting sidewalks create a duty running from the property owner to the injured plaintiff, unless a statute explicitly establishes civil liability." The court then held that "the ordinance does create responsibility for the injuries and therefore this is the exception that [Yanhko] was talking about."

On appeal, defendant argues that the motion judge erred when he denied her motion for summary judgment. In particular, she contends that the judge erred when he concluded that a ...


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