On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4903-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Fisher and Maven.
The opinion of the court was delivered by MAVEN, J.S.C. (temporarily assigned).
Plaintiff Ethel Gray appeals the order granting summary judgment entered in favor of defendant 27-75th North Bergen LLP. The issue presented in this appeal is whether sidewalk liability applies to an owner of a vacant commercial building. In deciding this case, we add to the evolving jurisprudence on sidewalk liability and hold that a commercial property owner has a duty to maintain the sidewalk abutting its vacant building. We reverse and remand.
Plaintiff was injured on January 18, 2009, when she slipped and fell on an ice and snow covered sidewalk in front of defendant's commercial building in Paterson. At the time of the accident, the building was vacant and had been since the prior tenant vacated on October 1, 2007.
The building had no electricity and was secured with boarded windows, locked doors and an iron gate. There is no dispute that the property in question is a commercial property. John Fressie, a principal representative of defendant, admitted in his deposition that during defendant's ownership, the property had been leased as a retail store, was being marketed for sale as a commercial property, and prospective buyers were permitted entry to inspect the premises. The owners maintained a commercial insurance policy on the building.
In moving for summary judgment, defendant relied solely on our decision in Abraham v. Gupta, 281 N.J. Super. 81 (App. Div.), certif. denied, 142 N.J. 455 (1995), and argued that there was no legal basis for sidewalk liability because the property was vacant and no business operations or activities were being conducted at the property at the time of the accident. Plaintiff raised several facts to support the imposition of sidewalk liability: the property's potential to generate income; the active marketing of the property at the time of the accident; the eventual sale of the property two months after the accident; and the owner's ability to spread the risk, as evidenced by the commercial insurance coverage on the property.
In Abraham, supra, 281 N.J. Super. at 85, we held that the owner of the vacant commercial lot could not be held liable because that property (1) was not owned by or used as part of a contiguous commercial enterprise or business; (2) did not entertain a daily business activity on the lot to which safe and convenient access was essential; and (3) had no means of generating income to purchase liability insurance or to spread the risk of loss. The trial court, relying on that holding, concluded that defendant's commercial property was not subject to sidewalk liability because, as a vacant building, the property was not being used at the time of the accident. In granting summary judgment, the court ruled that:
There has to be a -- a business enterprise being conducted on the property, whether it's vacant or not, to have the capacity to generate income. Whether they're profitable or not doesn't matter. Once you have an enterprise being conducted from a property under Stewart,*fn1 and as articulated in Abraham v Gupta, you are subject to sidewalk liability.
Where there is no use of the property, there can be no liability. So summary judgment is being awarded . . . .
In denying reconsideration, the judge characterized the building as equivalent to "a vacant lot" to bring it closer to the holding in Abraham.
When reviewing an order granting summary judgment, we apply the same standard as that applied in the trial court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). Rule 4:46-2(c) provides that a court should grant summary judgment when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Therefore, we must first decide whether there is a genuine issue of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of ...