Avallone v. Mortimer

• Decision Date: 26 December 1991
• Citation: 252 N.J.Super. 434,599 A.2d 1304
• Parties: Dolores AVALLONE, Plaintiff-Appellant, v. William MORTIMER and Margaret Mortimer, His Wife, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 434

252 N.J.Super. 434

599 A.2d 1304

Dolores AVALLONE, Plaintiff-Appellant, v. William MORTIMER and Margaret Mortimer, His Wife Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 27, 1991.

Decided Dec. 26, 1991.

Kenneth E. Calloway, North Wildwood, for plaintiff-appellant, and on the brief.

Cooper, Perskie, April, Niedelman, Wagenheim & Levenson, Atlantic City, for defendants-respondents (William J. Kohler on the brief).

Before Judges BRODY, MUIR, Jr. and LANDAU.

The opinion of the court was delivered by

LANDAU, J.A.D.

This is an appeal by Dolores Avallone from the award of summary judgment favorable to defendants William Mortimer and Margaret Mortimer, his wife (both now deceased), on Avallone's complaint to recover damages suffered by reason of a sidewalk trip and fall in front of the Wildwood Crest house owned and occupied by the Mortimers in 1987.

In granting summary judgment, the motion judge assumed for purposes of the motion that a portion of the house was leased by the Mortimers as a residential apartment, ¹ but determined that "as a matter of law ... the premises were still residential and not commercial for the purposes of sidewalk responsibility." The judge also relied on an unpublished opinion of this court which held that seasonal rental of two apartments in an owner-occupied residential building did not transform it into commercial property within the meaning of Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 432 A.2d 881 (1981).

In Stewart, the Supreme Court re-evaluated and overruled Yanhko v. Fane, 70 N.J. 528, 362 A.2d 1 (1976), overruled 87 N.J. 146, 432 A.2d 881 (1981), in which a divided court had upheld the old rule that an abutting landowner was not liable for pedestrian injuries sustained by reason of the poor condition of a sidewalk. The new Stewart rule, however, was limited to commercial landowners. The Court expressly reserved the question whether the same duty and public considerations apply to residential abutting owners. Stewart, supra, 87 N.J. at 159, n. 6, 432 A.2d 881.

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." Stewart, supra, 87 N.J. at 160, n. 7, 432 A.2d 881. We held in Hambright that a two-family residential dwelling operated by an off-premises owner solely as a business venture was a commercial property within the meaning of Stewart. We expressed no opinion as to the result where an owner occupied part of a similar two-family house.

In Borges v. Hamed, 247 N.J.Super. 295, 589 A.2d 169 (App.Div.1991), we affirmed a Law Division judgment which declined to extend the Stewart rule to a three-family residential building in which the owners occupied one apartment, and other members of the same family occupied the remaining apartments. See Borges v. Hamed, 247 N.J.Super. 353, 358, 589 A.2d 199 (Law Div.1990), aff'd, Borges v. Hamed, supra. We expressed no view on the result had defendants lived in one apartment and rented the other two at market rates.

Since Stewart, the Supreme Court has further defined and restricted the limited scope of its residential exception by holding that a non-profit charitable and religious organization was not exempted from the duty owed to non-beneficiary pedestrians to maintain abutting sidewalks. Brown v. St. Venantius School, 111 N.J. 325, 544 A.2d 842 (1988). Later, in Gilhooly v. Zeta Psi Fraternity, 243 N.J.Super. 201, 578 A.2d 1264 (Law Div.1990), a sidewalk case in which the defendant fraternity's property was used both as a residence and as a social club for all members (resident, non-resident and alumni), the Law Division judge interpreted Brown to hold that "where property is partially commercial and partially non-commercial the former will take precedence in the application of the rule in Stewart." Id. at 205, 578 A.2d 1264.

We believe that the Gilhooly approach to hybrid residential/non-residential properties partially misinterprets the Brown rationale. As we read Brown, its weighing of policy considerations was ultimately resolved entirely on the grounds that there simply was no residential use of the property, and that its charitable use was...