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Hambright v. Yglesias

Superior Court of New Jersey, Appellate Division
Apr 17, 1985
200 N.J. Super. 392 (N.J. Super. 1985)

Summary

holding that two-family house entirely rented out by owner for profit was "commercial"

Summary of this case from Luchejko v. the City of Hoboken

Opinion

Argued March 25, 1985 —

Decided April 17, 1985.

Before Judges KING, DEIGHAN and BILDER.

Thomas F. Zborowski argued the cause for appellant ( Methfessel Werbel, attorneys; Thomas F. Zborowski, on the brief). Sheldon Bross argued the cause for respondent ( Horowitz, Bross, Sinins Imperial, attorneys; Keith A. Bonchi, on the brief).


In Stewart v. 104 Wallace St., Inc., 87 N.J. 146 , 157 (1981), commercial landowners were held to be responsible for maintaining the sidewalks abutting their property in reasonably good condition and liable to pedestrians injured as a result of their negligent failure to do so. In Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983), this duty of commercial landowners was extended to the removal of snow or ice or reduction of the risk from those conditions under appropriate circumstances. "The test is whether a reasonably prudent person, who knows or should have known of the condition, would have within a reasonable period of time thereafter caused the public sidewalk to be in reasonably safe condition." Id. at 395-396. The principal issue in this appeal is whether a non-owner-occupied two-family house is a commercial property within the meaning of Mirza.

On January 25, 1982 plaintiff Mary Hambright fell on an icy public sidewalk in front of a two-family house owned by defendant Manuel Yglesias. Both apartments were occupied by tenants. The sidewalk was "an entire sheet of ice" but plaintiff decided to take a "calculated risk" and attempt safe passage. She brought suit to recover for her resultant injuries.

At the conclusion of plaintiff's case in a jury trial, defendant moved for a directed verdict of negligence against plaintiff, which was denied. At the conclusion of all the proofs, the trial judge gave a charge to the jury which both parties agree was consistent with the holdings in Stewart and Mirza. The jury returned a verdict finding defendant 95% negligent, plaintiff 5% negligent, and fixing the damages at $65,000.

On appeal defendant contends that his property is not a commercial property within the meaning of Stewart and Mirza and that the court erred in failing to direct a verdict of negligence against plaintiff based upon her conduct in proceeding across the sidewalk in the face of a known danger.

In its decision to extend liability for abutting sidewalks to landowners, the Supreme Court gave us guidance as to which properties were to be covered by the new rule. Stewart v. 104 Wallace St., Inc., supra, 87 N.J. at 160. "[C]ommonly accepted definitions of `commercial' and `residential' property should apply." Id. In a footnote, the court added "For example, apartment buildings would be `commercial' properties covered by the rule." Id. By this footnote, the court made it clear that it was the nature of the ownership that mattered, not the use to which the property is put. Apartment buildings are residential in the sense that they are places where people live; they are commercial in the sense that they are operated by their owners as a business. In the instant case, it is undisputed the property was owned and operated by defendant as a business venture. It was, therefore, a commercial property within the meaning of Stewart and Mirza. We express no opinion as to the result where a two-family house is partly owner-occupied.

Residence is defined as the place in which one lives or resides. Commerce is defined as business. The Random House Dictionary of the English Language, Unabridged Edition (1966).

Defendant's remaining contention is really directed to the weight of the evidence. He argues, as he did on motion for a directed verdict at the conclusion of the plaintiff's case, that plaintiff's conduct, based on her own testimony, was negligent as a matter of law. "It is respectfully submitted that the negligence of the plaintiff herself was so clearly established by her own testimony that the jury should not have been given the opportunity to decide whether the plaintiff was negligent, but only in what proportion she was negligent, compared to the defendant."

The question of reasonable conduct is one peculiarly within the competence of a jury. See Benton v. Y.M.C.A., 27 N.J. 67 , 71 (1958). As Judge Landau noted in denying defendant's motion, there was a lot of ice and snow around. Plaintiff knew the danger in going forward but she was also aware that alternative paths also inhered with danger. Her choice was clearly between bad and worse. The reasonableness of her decision was properly for the jury. Additionally, we note that if the failure to grant defendant's motion were error, it was harmless because the jury did find plaintiff was negligent, attributing 5% negligence to her. A direction that the jury must find some negligence on the part of plaintiff could not have produced a different result. See State v. Macon, 57 N.J. 325 , 336 (1971).

Affirmed.


Summaries of

Hambright v. Yglesias

Superior Court of New Jersey, Appellate Division
Apr 17, 1985
200 N.J. Super. 392 (N.J. Super. 1985)

holding that two-family house entirely rented out by owner for profit was "commercial"

Summary of this case from Luchejko v. the City of Hoboken

holding that non-owner-occupied two-family house rented to tenants was commercial property and therefore owner was required to maintain public sidewalk in reasonably good condition

Summary of this case from Wickner v. American Reliance Ins. Co.

holding that a two-family house entirely rented out for profit was commercial

Summary of this case from Valentine v. Almanzar

deciding that non-owner-occupied two-family house was commercial property because it was owned as a business venture, but explaining that court was not deciding whether two-family house would still be commercial if owner lived in one unit

Summary of this case from Bittle v. Brunetti

In Hambright v. Yglesias, 491 A.2d 768, 769 (N.J.Super.A.D. 1985), the court interpreted the finding in Stewart that the apartment building was commercial property as an indication that it is the nature of the ownership that mattered, not the use to which the property is put.

Summary of this case from Berardi v. Humenek

In Hambright, it was undisputed that the owner of an apartment house operated it as a business venture and, therefore, it was determined to be a commercial property.Id.

Summary of this case from Berardi v. Humenek

In Hambright, which involved a non-owner-occupied, two-family home, we held the ownership to be commercial; the cost could be "spread," however minimally, between the two tenants.

Summary of this case from Smith v. Young

In Hambright the question was whether the disputed property was sufficiently commercial for purposes of imposing tort liability upon the property owner for failure to maintain abutting sidewalks.

Summary of this case from Marascio v. Campanella

In Hambright, the Appellate Division held that a non-owner occupied two-family dwelling operated solely as a business generating rental income was considered "commercial" for purposes of applying the Stewart rule.

Summary of this case from Colarte v. Federal Nat'l. Mortg. Assn

In Hambright v. Yglesias, 200 N.J. Super. 392, 395, 491 A.2d 768 (App.Div. 1985), we recognized that under Stewart, "[C]ommonly accepted definitions of `commercial' and `residential' property should apply," and that "[f]or example, apartment buildings would be `commercial' properties covered by the rule."

Summary of this case from Avallone v. Mortimer

In Hambright v. Yglesias, 200 N.J. Super. 392, 491 A.2d 768 (App.Div. 1985) the plaintiff was injured when she fell on ice and snow in front of a two-family house owned by the defendant.

Summary of this case from Gilhooly v. Zeta Psi Fraternity

In Hambright v. Yglesias, 200 N.J. Super. 392, 491 A.2d 768 (App.Div. 1985), the Appellate Division held that a non-owner occupied, two family house, generating two rental incomes, would be considered "commercial" property for purposes of applying the Stewart rule.

Summary of this case from Borges v. Hamed
Case details for

Hambright v. Yglesias

Case Details

Full title:MARY HAMBRIGHT, PLAINTIFF-RESPONDENT, v. MANUEL YGLESIAS…

Court:Superior Court of New Jersey, Appellate Division

Date published: Apr 17, 1985

Citations

200 N.J. Super. 392 (N.J. Super. 1985)
491 A.2d 768

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