Residential Landowners and Immunity from Liability for Injuries Caused by Abutting Public Sidewalks

SUNNIE CORRY, ET AL. VS. JOHN BARBIERI,  February 5, 2016 Appellate Division Unreported Decision

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark

This case addresses the status of new Jersey’s residential property owner’s sidewalk immunity. The facts are very simple and address clearly the status of RESIDENTIAL immunity.  The plaintiff alleges that, on November 28, 2010, plaintiff Sunnie Corry was walking with her husband and daughter, as well as her grandchild, who was riding along in a stroller, on a sidewalk abutting defendants’ Audubon residence when “a raised and severely broken portion of the sidewalk”1 caused Sunnie to trip and fall and, as a consequence, suffer a severe rotator cuff injury.

The appellate court then went through the history of new Jersey’s RESIDENTIAL real estate exception which started with Yanhko v. Fane, 70 N.J. 528, 532 (1976).  In that case a divided Supreme Court recognized and applied an existing common law principle that an abutting landowner is “not liable for the condition of a sidewalk caused by the action of the elements or by wear and tear incident to public use, but only for the negligent construction or repair of the sidewalk by himself or by a specified predecessor in title or for direct use or obstruction of the sidewalk by the owner in such a manner as to render it unsafe for passersby.” Justice Pashman’s dissenting opinion in Yanhko, however, gained traction and a few years later, in Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 157 (1981).  There the Court altered this “no liability” rule by holding “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” (emphasis added). The Court emphasized that “[t]he duty to maintain abutting sidewalks that we impose today is confined to owners of COMMERCIAL property.” Id. at 159. More recently, the Court adhered to Stewart’s residential/commercial distinction by holding that a condominium association and management company could not be held liable for injuries caused by a sidewalk abutting a residential condominium complex. Luchejko v. City of Hoboken, 207 N.J. 191, 211 (2011). And last year the Court determined that a common-interest community could be held liable for injuries caused to a pedestrian who fell on ice “on a private sidewalk within” the community, emphasizing that “[w]ho owns or controls the sidewalk, not who uses it, is the key distinguishing point between a public and private sidewalk,” Qian v. Toll Bros., Inc., 223 N.J. 124, 127 (2015).

In conclusion for those reading this and trying to determine if a claim exists under New Jersey law, the common law has evolved since Stewart partially overruled Yanhko, but the Court’s recent opinions reveal its continued adherence to a residential landowner’s immunity from liability for injuries caused by abutting public sidewalks.  Therefore, you have to investigate where the injury took place, who are the adjacent property owners and in what capacity are the owners using the property.  In addition, a review of my prior blogs, you have to look into the exact nature and extend of the defect present which the plaintiff or your client caused the alleged injury.  Remember, plaintiff has the burden of proof to prove duty, breach, causation and damages.  Expert testimony supported by plaintiff’s deposition testimony and or interrogatories which reflect:

a) commercial property,

b) actual awareness of what caused you/them to fall,

c) how the existence of that defect was negligent, and

d) injury.