November 14, 2008
CAROLYN M. HAWKES, PLAINTIFF-APPELLANT,
INDREK AND ANU-IRJA P. OJAMAA, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3042-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 22, 2008
Before Judges Cuff, Fisher and Baxter.
On November 15, 2005, plaintiff Carolyn Hawkes fell on a raised portion of a sidewalk in front of a single family home owned by defendants Indrek and Anu-Irja P. Ojamaa. Plaintiff filed a complaint against defendants seeking compensatory damages for the injuries she sustained in the fall. She appeals from an order granting summary judgment in favor of defendants. We affirm.
It is not seriously disputed that a portion of the sidewalk abutting defendants' residence contains a raised and uneven slab of sidewalk. A manhole is located in the slab. There is a grassy area between this slab and the next slab. Measurements reveal a drop/lip of 2.5 inches near the grass strip by the curbing and up to 3.25 inches in the area closest to the lawn of defendants' home. The sidewalk has been in this condition for years. Defendants reported that about fifty feet of sidewalk has been sinking slowly over the years. Neither defendants nor the municipality has made any repairs to the sidewalk.
The municipality in which defendants reside has adopted an ordinance that declares that a property owner is responsible to keep the area between the property line and the street line, including the sidewalk, in good repair. The director of public works may order a property owner to repair a sidewalk. If the property owner does not do so, the municipality may undertake the work and charge the property owner for the repair. Defendants have never received a citation due to the state of disrepair or an order to repair the sidewalk from the municipality.
In his oral opinion, Judge Mathesius stated that he felt constrained to follow the Yanhko v. Fane, 70 N.J. 528 (1976) rule that an abutting owner of residential property is not liable for the condition of a sidewalk caused by ordinary wear and tear incident to public use. He also held that the adoption of a municipal ordinance that states that the property owner is responsible to keep the sidewalk in good repair does not override the Yanhko rule.
Over the years, the Court has limited common law sidewalk immunity. In Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 157 (1981), the Court held that commercial landowners are responsible for keeping abutting sidewalks in good repair. In Mirza v. Filmore Corp., 92 N.J. 390 (1983), the Court held that a commercial property owner had a duty to keep sidewalks abutting commercial properties free of ice and snow. This court has held that the owner of residential property maintained as an income producing property has an obligation to keep the abutting sidewalk in good repair. Wilson v. Jacobs, 334 N.J. Super. 640, 646-47 (App. Div. 2000). The Court has, however, declined to alter the rule immunizing residential property owners such as defendants. Stewart, supra, 87 N.J. at 159. See also Mirza, supra, 93 N.J. at 394. We, like the motion judge, are constrained to follow this long-established rule.
We are also not persuaded that the adoption of the municipal ordinance should be construed as altering the common law rule. The ordinance does no more than state that a residential property owner is responsible for keeping the abutting sidewalk in good repair and will be charged for any repair undertaken by the municipality. Repair will occur only when and if the director of public works discovers a fault, decides to issue an order to repair, or decides to undertake a repair. This is hardly a clear and unequivocal alteration of the common law rule that insulates residential property owners from liability for faults in abutting sidewalks caused by normal wear and tear.
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