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Moore v. Croation American Bocci Club

June 27, 2008

JOSEPH MOORE, PLAINTIFF-RESPONDENT,
v.
CROATION AMERICAN BOCCI CLUB, INC., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1991-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2008

Before Judges Chambers and Waugh.

Defendant Croatian American Bocci Club, Inc., appeals from the order of April 27, 2008, memorializing the jury verdict in favor of plaintiff Joseph Moore. The lawsuit arises from an accident that took place when plaintiff fell on snow and ice on defendant's property while walking along Bergen Boulevard. Plaintiff contends that he was walking along a path on the side of the road on defendant's property and that defendant had an obligation to maintain the path under the law governing sidewalks. Defendant asserts that since the area where plaintiff fell was not a sidewalk, it has no liability to plaintiff as a pedestrian walking down the street. We hold that the law governing sidewalks is inapplicable in this case. However, we reverse and remand for a new trial to determine whether defendant breached its common law duty to plaintiff as either a trespasser or licensee on the land.

I.

On January 25, 2004, plaintiff's van broke down, and he dropped it off at a shop for repairs. He then proceeded to walk home, along Routes 1 and 9 (Tonnelle Avenue) in North Bergen to 91st Street. He turned onto Bergen Boulevard intending to walk to Kennedy Drive where he lived.

Defendant's property is located at the corner of Bergen Boulevard and Kennedy Drive. Defendant is a private club for senior citizens. The entrance to defendant's building faces Kennedy Drive, and a concrete sidewalk is located along that portion of its property. The side of defendant's property along Bergen Boulevard consists of a grassy strip and dirt. No concrete sidewalk, stone path or other constructed walkway is located there. No curb exists between the roadway and defendant's land. Bergen Boulevard has a clearly marked wide shoulder at its edge along defendant's property.

Plaintiff testified that Bergen Boulevard is a busy street with traffic moving at 40 miles per hour, and that vehicles often use the shoulder to make right hand turns. According to plaintiff, a worn path, used regularly by pedestrians, runs along the Bergen Boulevard side of defendant's property. Plaintiff testified that while he had never used the path before, he had seen pedestrians walk at that location many times before.

Defendant's corporate officer who testified at trial refuted plaintiff's testimony, maintaining that he had never seen pedestrians walk on defendant's property along Bergen Boulevard. He denied that a path existed at that location. He did, however, state that pedestrians do walk along the seven to eight foot wide shoulder of Bergen Boulevard that borders defendant's property. He advised that one pedestrian had been killed walking along the other side of Bergen Boulevard. He denied that vehicles used the shoulder to make right hand turns.

A snowfall had occurred a couple of days before the accident. As a result, snowplows had deposited a pile of snow on the Bergen Boulevard side of defendant's property. While defendant routinely removed snow and ice from the sidewalk on the Kennedy Drive portion of its property, it did not do so on the Bergen Boulevard side, since it did not have a sidewalk there.

On the day of the accident, as plaintiff walked along the edge of the road along Bergen Boulevard, he encountered the pile of snow on defendant's property. He first proceeded into the roadway to get around it. Due to the presence of cars going by, he testified that he immediately tried to get around the snow, and, when stepping back onto defendant's land, he slipped and fell on ice under some snow.

Plaintiff brought this lawsuit against defendant seeking compensation for the injuries he sustained in the accident. At the end of plaintiff's case at trial, defendant moved for a dismissal on the basis that the area where plaintiff fell was not a sidewalk, and that defendant had no liability to plaintiff. The motion was denied.

The judge charged the jury on the duty of a commercial landowner regarding sidewalks and the duty of a landowner to a licensee. The jury found defendant negligent and found that the negligence was a proximate cause of the accident and plaintiff's injuries. Plaintiff was awarded the sum of $75,000, for his pain and suffering, disability, impairment and loss of enjoyment of life. The jury's award of $20,000, for ...


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