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As the number of personal injury lawsuits filed in the Garden State continues to escalate, the State's highest court has just agreed to review whether residential property owners have a duty to maintain sidewalks abutting their property.

The New Jersey Supreme Court previously agreed to review a case regarding commercial property owners. This new case is unique as it pertains to residential property owners.

It appears that the heart of the dispute is whether a residential property owner can be liable simply for owning a sidewalk, or if the Plaintiff should be required to show that the homeowner actually created the hazardous condition (such as by constructing or modifying the sidewalk in a hazardous way).

The petition is from plaintiffs Luis Cuello and
his wife, Gracuella Cuello.

In their case, while Luis was walking on the
sidewalk in front of the Kearny Township home owned by defendants' Eduardo Ramos and Cristel Chavez, Luis caught his foot on a raised section of the sidewalk and fell. He injured his back, neck, and left shoulder, and after a year of treatment underwent a cervical fusion and discectomy.

After the fall, plaintiffs retained an expert who opined that the roots of a tree abutting the sidewalk raised two of the concrete slabs by five to six inches causing a tripping hazard, and defendants failed to properly maintain the sidewalk under the New Jersey Uniform Construction Code and provisions of ASTM International "Standard Practice for Safe Walking Surfaces."

The defendants purchased the property adjoining the sidewalk in 2015 or 2016 and were aware
prior to their purchase that the tree's roots had raised the sidewalk. Further, prior to Luis' fall, defendants had asked the town to inspect the tree as it "was lifting up the sidewalk" and Kearny Township records reveal the tree was inspected
and found in "good condition." After Luis fell, the township removed the tree and defendants replaced the defective sidewalk.

At the time of the incident, Ramos and his family lived on the second floor of the home, his sister and her family resided on the first floor, his brother occupied the attic, and Chavez lived in the basement. According to Ramos, neither he nor Chavez profited from any rent collected from their family members, as all funds were used to offset the expenses of home ownership, including their mortgage, taxes, and insurance.

Luis filed a personal injury complaint against the defendants.

At the court hearing, in addition to deposition testimony in which defendants admitted they had actual notice of the defective sidewalk, plaintiffs relied upon a Kearny Township ordinance, which provided property owners are "liable for the maintenance of the sidewalks and driveway entrances" abutting their property and obligated to immediately repair the walkways "in the event that the whole or any part of the sidewalks and driveway entrances becomes dangerous or hazardous to pedestrian travel."


The trial judge dismissed the lawsuit, concluding that the defendants were not liable based on this State's long- settled principles of common law immunity from sidewalk liability for residential property owners.

More importantly, the judge also found that the defendants did not negligently construct or repair the sidewalk prior to the date Luis fell.

Finally, the judge determined that the municipal ordinance did not actually impose upon defendants a duty of care to plaintiffs.

Appellate Division Judges Accurso and Natali subsequently affirmed the trial court's decision.

The plaintiffs had urged the Court to effectively overrule Stewart v. 104 Wallace Street and clarify the duty of a residential property owner to remedy and repair defective sidewalks when a residential property owner has knowledge of the defective

They also challenged the holdings in numerous published decisions addressing sidewalk liability for residential homeowners, characterizing the rationale for imposing liability upon a property
owner for a defective sidewalk based upon a "natural" versus "artificial" distinction as "anachronistic."


The Plaintiffs also argued that the trial court erred, saying that the distinction between commercial and residential property has "blurred" and "to
continue defining sidewalk liability in these terms is archaic and futile," particularly under the circumstances here where defendants lived in a multi- family home and received rent from family members. Plaintiffs contend upon "reconsideration of . . . residential property sidewalk liability law," the motion record "warrants an imposition of a duty upon" defendants as landowners because they possessed notice of the dangerous condition and unreasonably permitted the condition to continue unabated.

The Appellate panel was unpersuaded that simply knowing of a dangerous condition and permitting the condition to continue unabated is insufficient under established New Jersey case law to assert liability.

The Court stated simply that "it is well established that "absent negligent construction or repair," residential property owners like defendants do "not owe a duty of care to a pedestrian injured as a result of the condition of the sidewalk abutting the landowner's property."

Here, there was no evidence in the record that defendants made any repairs or otherwise created an unsafe situation. I.e. it was undisputed that the defendants did not plant the tree in question or
take any other affirmative act to cause plaintiffs' injuries.

The State's highest court has just agreed to review this case, in which, the Plaintiffs are questioning if residential property owners have a duty to maintain sidewalks abutting their property, and should courts distinguish between natural and artificial conditions (i.e. is "negligent construction or repair" by the homeowners a requirement to claim liability, or is "knowing of a dangerous condition" sufficient for a liability claim).

As previously reported here on FAA News, the New Jersey Supreme Court has recently agreed to review a case which questions if the owners of vacant commercial lots can be liable to pedestrians injured by poorly maintained sidewalks abutting those lots.

Additionally, as recently reported here on FAA News, a Lakewood minor resident has just settled a lawsuit filed against Township of Lakewood, County of Ocean, State of New Jersey, and Sunoco Gas Station over a personal injury which occurred while riding a bicycle on the sidewalk in front of the Route 9 gas station.

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