Opinion
DOCKET NO. A-5931-13T2
02-05-2016
SUNNIE CORRY and WILLIAM CORRY, Plaintiffs-Appellants, v. JOHN BARBIERI and JANET BARBIERI, Defendants-Respondents.
Joseph P. Grimes argued the cause for appellants (Grimes & Grimes, L.L.C., attorneys; Mr. Grimes, on the brief). Francis X. Ryan argued the cause for respondents (Green, Lundgren & Ryan, P.C., attorneys; Mr. Ryan, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Rothstadt and Currier. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4972-12. Joseph P. Grimes argued the cause for appellants (Grimes & Grimes, L.L.C., attorneys; Mr. Grimes, on the brief). Francis X. Ryan argued the cause for respondents (Green, Lundgren & Ryan, P.C., attorneys; Mr. Ryan, on the brief). PER CURIAM
In appealing the dismissal of their complaint, plaintiffs argue "[t]he time has come to abandon the unenlightened standard" that insulates residential landowners from liability for injuries caused by abutting sidewalks.
The complaint 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" caused Sunnie to trip and fall and, as a consequence, suffer a severe rotator cuff injury. Assuming all this to be true, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we agree with the motion judge that defendants were entitled to summary judgment in light of the current state of the common law, which we briefly review.
Plaintiffs also argue that part of the abutting sidewalk traversed a driveway which defendants once used but abandoned in 1989 when they constructed a detached garage accessed by way of a driveway off a different street. The record demonstrates that Sunnie did not trip on the part of the sidewalk that traverses the old driveway.
In Yanhko v. Fane, 70 N.J. 528, 532 (1976), 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), 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.
Id. at 537-50. The dissent relied on a dissenting opinion authored by Justice Proctor in Murray v. Michalak, 58 N.J. 220, 226 (1971), which called for a rejection of this "anachronistic rule," and an even earlier dissenting opinion authored by Justice Jacobs in Moskowitz v. Herman, 16 N.J. 223, 228 (1954), in which he asserted the common law rule of sidewalk immunity was "pregnant with seeds of gross injustice." --------
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).
To be sure, 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. Like the trial court, we are bound to these principles; only the Supreme Court can say whether it is time for a change.
Finding inessential plaintiffs' suggestion that defendants "active[ly] contribut[ed]" to the condition of the sidewalk where Sunnie tripped — a purely speculative assertion — we agree with the motion judge that defendants were entitled to summary judgment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION