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Carylee Johnson v. Eric Morse and Leigh Ann Morse

May 31, 2012

CARYLEE JOHNSON, PLAINTIFF-APPELLANT,
v.
ERIC MORSE AND LEIGH ANN MORSE, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-596-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 8, 2012

Before Judges Yannotti and Kennedy.

Plaintiff Carylee Johnson appeals from an order entered by the Law Division on August 22, 2011, granting summary judgment in favor of defendants, Eric Morse and Leigh Ann Morse. We reverse.

This appeal arises from the following facts. On June 7, 2010, plaintiff was walking along Cannonball Drive in Tinton Falls. She allegedly tripped and fell on a sidewalk panel in front of defendants' residential property. According to plaintiff, the sidewalk panel was approximately one and one-half inches higher that the sidewalk section that abuts it.

In discovery, plaintiff produced a report from William Poznak (Poznak), a professional engineer and land surveyor. In that report, Poznak stated that the sidewalk slab was raised because the base material had not been properly compacted at time of construction. He stated that the base material "sunk" causing the sidewalk slab "to drop." This produced the "noted surface projection." He opined that the "maintenance" of the sidewalk was contrary to general safety practices and rules prevailing in the industry.

On June 23, 2011, defendants filed a motion for summary judgment, which plaintiff opposed. The court considered the motion on August 22, 2011, and placed its decision on the record. The court determined that defendants were entitled to summary judgment.

The court pointed out that the owner of residential property is not liable for the condition of a sidewalk caused by the action of the elements or wear and tear, but could be liable for negligent construction or repair by himself or a specified predecessor in title. The court stated that there was no evidence that defendants installed or made any repairs or changes to the sidewalk. In addition, plaintiff had not identified a prior owner who had allegedly constructed the sidewalk negligently.

The court also rejected plaintiff's contention that defendants could be liable for allegedly violating a municipal ordinance, which requires residential property owners to reconstruct, repair or alter any defective or dangerous sidewalk. The court stated that such ordinances "are merely remedial and do not impose a duty in tort."

The court entered an order dated August 22, 2011, granting defendants' motion for summary judgment. This appeal followed. Plaintiff argues: 1) the court erred by granting summary judgment despite the existence of unresolved material facts concerning the construction of the sidewalk in question; 2) the New Jersey courts should recognize and impose liability upon private landowners for negligent maintenance of sidewalks that abut their property; and 3) the municipal sidewalk ordinance created a duty on the part of defendants to maintain the sidewalk abutting their property, which should be viewed as creating as basis for imposing liability.

When reviewing an order granting summary judgment, we apply the same standard that the trial court applies when it considers a summary judgment motion. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010); Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 131-32 (App. Div. 2011). Therefore, we must determine whether the evidential materials before the trial court showed that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). In making this determination, we must view the evidence in a light favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The principles governing liability of a property owner for the injuries arising from a dangerous condition of an abutting sidewalk are well-established. In Yanhko v. Fane, 70 N.J. 528, 534-37 (1976), the Court reaffirmed the long-standing principle "that, absent active misconduct, property owners would not be liable for dangerous sidewalk conditions." Luchejko v. City of Hoboken, 207 N.J. 191, 201-02 (2011) (recognizing the Court's affirmance of the common law rule in Yanhko, supra, 70 N.J. at 534-37). However, in Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981), the Court held that "commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable to pedestrians injured as a result of their negligent failure to do so." Id. at 157.

The Stewart Court did not, however, alter the long-standing principle that residential property owners are not liable for the condition of an abutting sidewalk caused by wear and tear incident to public use, but could be liable if the property owner, or a specified predecessor in title, negligently constructed ...


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