May 15, 2012
MARGARITA CANINI, PLAINTIFF-APPELLANT,
423 ADAMS STREET CONDOMINIUM ASSOCIATION, INC., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0182-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2012
Before Judges Sabatino and Ashrafi.
This case involves a pedestrian's slip and fall on a public sidewalk in front of a building containing nine residential condominium units. The injured plaintiff, Margarita Canini, appeals the Law Division's order granting summary judgment to the condominium association, defendant 423 Adams Street Condominium Association, Inc. ("the association").
Because this case is squarely controlled by the Supreme Court's recent opinion in Luchejko v. City of Hoboken, 207 N.J. 191, 211 (2011) (holding that a residential condominium association had no duty under New Jersey negligence law to maintain a public sidewalk in front of its premises), we affirm.
These are the pertinent facts, viewed in the light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On January 7, 2008, plaintiff was walking on the public sidewalk adjacent to the building located at 423 Adams Street in Hoboken. According to plaintiff, she tripped and fell on loose brick pavers that had replaced the cement sidewalk. Plaintiff fell on her right knee and right hand, causing her injury and pain. In particular, she had two surgeries on her right knee after the fall and required various other forms of medical treatment.
The building located at 423 Adams Street is comprised of nine residential condominium units. At the time of plaintiff's fall in January 2008, eight of the units were owner-occupied. The ninth unit was either empty or occupied by a tenant.
The association is the non-profit legal entity established by the owners who reside in the condominium. Pursuant to the Condominium Act, N.J.S.A. 46:8B-1 to -38, the association is "responsible for the administration and management of the condominium and condominium property, including but not limited to the conduct of all activities of common interest to the unit owners." N.J.S.A. 46:8B-12. According to the Master Deed for the property, "all owners of [u]nits in the [c]ondominium will automatically be  member[s] of the [a]ssociation[.]" The association is managed by an executive board. The board members are not paid or compensated for their service.
According to the Master Deed, "[a]ll curbs and sidewalks" are "common elements" of the property. These common elements are subject to "[a] perpetual and non-exclusive easement in, over, and through the [c]ommon elements [i.e., the sidewalk.]"
The association is statutorily required to have "insurance against liability for personal injury and death for accidents occurring within the common elements[.]" N.J.S.A. 46:8B-14(e). The association currently has a policy in conformity with the statute.*fn1
The association retained Red Bridge Property Management, LLC ("Red Bridge") to maintain the property. Peter Slifirski, a Red Bridge employee, testified at his deposition that Red Bridge is in charge of the financial management of the building. According to Slifirski, "we [at Red Bridge] basically collect the bills; collect money from the clients; we process the checks; we interact with the unit owners [who] tell us what they want to have done in the building . . . [and] we get them contractors' proposals[.]" Nonetheless, he testified that all decisions regarding the property are made by the unit owners. Slifirski further explained that the association has no employees and that he is paid by Red Bridge, not by the association.
Slifirski did not know who installed the brick pavers in front of the building. He stated that the pavers were installed at some undetermined time prior to when Red Bridge began managing the building.
Ellen Dowling, the then-interim president of the association, was also deposed by plaintiff's counsel. She likewise did not know when the brick pavers were installed. Dowling recalled that the association had patched the sidewalk once in 2005 or 2006 and again in 2008*fn2 after plaintiff's accident. It appears that the hole that was patched in 2005 or 2006 was located near the stairs leading to the building entrance, whereas plaintiff evidently fell closer to the corner. According to Dowling, the association had considered putting the replacement of the sidewalk on its "wish list" several months before plaintiff's accident.
Plaintiff's theory of liability is that the association negligently failed to maintain the sidewalk in a reasonably safe condition. As confirmed at oral argument before us, plaintiff has no proof that the association or its agents negligently built the sidewalk or negligently installed the pavers. Consequently, plaintiff's claims turn upon a theory of negligent maintenance, not negligent construction or installation.
The trial court granted summary judgment to the association, classifying it as a residential owner that had no legal duty under our State's negligence law to maintain the public sidewalk abutting its property in a safe condition. In reaching that determination, the trial court relied on the Supreme Court's controlling "sidewalk liability" opinions in Luchejko, supra, 207 N.J. at 191, and Stewart v. 104 Wallace Street, Inc., 87 N.J. 146 (1981).
Prior to 1981, both commercial and residential landowners in our State could not be held liable for injuries occurring on public sidewalks abutting their property, except "for the negligent construction or repair of the sidewalk . . . or for direct use or obstruction of the sidewalk by the owner in such a manner as to render it unsafe for passersby." Yanhko v. Fane, 70 N.J. 528, 532 (1976). Then, in Stewart, supra, 87 N.J. at 150, the Court revised that principle and held that commercial landowners could be liable for injuries sustained on the sidewalks adjacent to their properties. In rendering that decision, the Court recognized the arbitrariness of holding commercial property owners responsible for injuries sustained within a commercial building but finding no liability when an injury was incurred a few feet from a business's door. Id. at 156-57.
The Court strictly limited its holding in Stewart to commercial owners, emphasizing that "[t]he duty to maintain abutting sidewalks that we impose today is confined to owners of commercial property," despite the fact that "whether the ownership of the property abutting the sidewalk is commercial or residential matters little to the injured pedestrian[.]" Id. at 159. The Court also noted that "[a]s for the determination of which properties will be covered by the rule we adopt today, commonly accepted definitions of 'commercial' and 'residential' property should apply, with difficult cases to be decided as they arise." Id. at 160.
In the recently-decided Luchejko case, supra, 207 N.J. at 195 (2011), the Court held that an "overwhelmingly owner-occupied 104-unit condominium complex" must be classified as a "residential," and not a "commercial," property, for purposes of sidewalk liability principles. The plaintiff in Luchejko was walking on the sidewalk in front of the condominium building when he slipped and fell on a sheet of black ice, breaking his leg. Id. at 196. The plaintiff brought a negligence action against, among other parties, the non-profit condominium association for the building, Skyline at Hoboken Condominium Association, Inc. ("Skyline"). Ibid.
The record in Luchejko showed that all unit owners were automatically members of Skyline. Ibid. About ten percent of the units were rented, while the rest were owner-occupied. Id. at 197. There was no retail space in the building. Ibid. Skyline was operated by a five-member Board. Ibid. Skyline was required by bylaw to maintain insurance. Id. 198.
In reviewing the history of sidewalk liability in our State, the Court in Luchejko notably observed that "[o]ur decisions consistently reflect that residential property owners stand on different footing than commercial owners who have the ability to spread the cost of the risk through the current activities of the owner." Id. at 206. The Court further underscored that "[t]he commercial/residential dichotomy represents a fundamental choice not to impose sidewalk liability on homeowners." Id. at 208.
In addressing whether Skyline should be treated as a commercial or residential property, the Court focused on Skyline's inability to spread the risk that would be imposed by sidewalk liability, given that Skyline does not provide the general public with goods and services. Id. at 206-07. Moreover, "the possibility that liability insurance in sufficient amounts might be purchased by residents of a condominium organization does not eliminate the potential that a large enough liability verdict could pose the risk of a person losing what is likely his or her largest asset: one's home." Id. at 208.
Ultimately, "applying the commonly understood notion of residential property in today's times," the Court determined in Luchejko that Skyline was not subject to sidewalk liability because it was a residential property. Id. at 211.
The trial court correctly held that the same result must obtain here as in Luchejko. If anything, the present circumstances weigh even more strongly in favor of treating the premises as residential and not commercial. The nine-unit condominium building -- one much smaller than the 104-unit building in Luchejko -- is almost exclusively owner-occupied. There is no retail space in the building. The association is a non-profit organization. It has no employees and is headed by a volunteer Board. The burdens and risks associated with potential sidewalk liability would be passed on to a mere nine unit owners, as contrasted with the 104 owners in Luchejko.
Plaintiff, whose counsel is coincidentally the same attorney who represented the plaintiff in Luchejko, argues that Luchejko was wrongly decided. She asserts in her brief that it is unfair for "a corporation, with millions of dollars in insurance coverage" not to be subject to sidewalk liability. That argument overlooks the possibility that a judgment against the association might deplete that coverage and expose the unit owners to personal liability. More importantly, plaintiff's policy-based arguments misunderstand our role in the judiciary. As an intermediate appellate court, we are bound by the precedents of the Supreme Court. See State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976). The policy arguments that plaintiff urges upon us were already considered by the Court only a year ago in Luchejko and rejected. It is not our province to second-guess the Court's reasoning and holding.
Summary judgment in favor of the defendant association was properly granted under the applicable law. We therefore affirm the dismissal of plaintiff's cause of action.