Nash v. Lerner

• Decision Date: 20 April 1998
• Citation: 709 A.2d 799,311 N.J.Super. 183
• Parties: Amelia NASH and Fred Nash, Her Husband, Plaintiffs-Appellants, v. Bella LERNER, John Does; Township of Edison and Richard Roes, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 183

311 N.J.Super. 183

709 A.2d 799

Amelia NASH and Fred Nash, Her Husband, Plaintiffs-Appellants, v. Bella LERNER, John Does; Township of Edison and Richard

Roes, Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued March 25, 1998.

Decided April 20, 1998.

Bryan D. Garruto, East Brunswick, for plaintiffs-appellants (Garruto & Cantor, P.C., attorneys; Mr. Garruto, of counsel; Lydia Kuhn, Metuchen, on the brief).

R. Peter Connell, Manasquan, for defendant-respondent, Lerner (Connell & Connell, attorneys; Mr. Connell, of counsel; Mr. Connell and Ronald S. Yuro, on the brief).

Before Judges SHEBELL, D'ANNUNZIO and A.A. RODRIGUEZ.

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

Plaintiffs, Amelia Nash, and her husband, Fred Nash, allege that on April 22, 1994, Amelia injured herself when she fell on a sidewalk in front of the driveway at 1 Cellar Road in Edison, owned by defendant, Bella Lerner. On or about June 6, 1994, plaintiffs filed a Tort Claim Notice with the Township of Edison the "Township"). On December 9, 1994, plaintiffs filed a complaint in the Law Division for damages arising from Amelia's personal injuries against the Township, Lerner, and fictitiously named defendants. Plaintiffs claimed that the sidewalk was negligently maintained and was the cause of Amelia's accident.

Lerner moved for summary judgment on the basis that discovery failed to uncover any evidence that Lerner, a residential property owner, owed plaintiff a duty at the time of her accident. Plaintiffs opposed the motion. On or about January 6, 1997, the Township filed an unopposed motion for summary judgment that was granted.

Lerner's motion was heard on January 24, 1997. After argument, the judge ruled that Lerner, as a residential landowner, was not responsible for the maintenance of an abutting sidewalk under Brown v. St. Venantius School, 111 N.J. 325, 544 A.2d 842 (1988). An order granting summary judgment to Lerner was entered on January 24, 1997, and this appeal followed. On April 2, 1997, the motion judge filed an Amplification of Decision pursuant to R. 2:5-1(b). She stated that the decision to grant summary judgment was proper because the evidence was "so one sided in favor of defendant" and because Brown, supra, Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 432 A.2d 881 (1981), and Yanhko v. Fane, 70 N.J. 528, 362 A.2d 1 (1976) supported defendant's position.

In Brill v. Guardian Life Ins. Co., 142 N.J. 520, 666 A.2d 146 (1995), our Supreme Court articulated a new rule for determining whether there is a genuine issue of material fact for trial, requiring a motion judge to engage in the same type of evaluation, analysis, or sifting of evidential materials as required by the directed verdict rules in light of the burden of persuasion that applies if the matter goes to trial. Id. at 536, 666 A.2d 146. The judge must decide whether

the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the nonmoving party ... If there exists a single unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of Rule 4:46-2.

[Id. at 540, 666 A.2d 146.]

The Supreme Court also noted that "when the evidence 'is so one sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2511, 91 L.Ed.2d. 202, 212 (1986)).

In addition, the trial court must not decide issues of fact; it must only decide whether there are any such issues. Brill, supra, 142 N.J. at 540, 666 A.2d 146; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75, 110 A.2d 24 (1954). "The 'judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.' " Brill, supra, 142 N.J. at 540, 666 A.2d 146 (quoting Liberty Lobby, supra, 477 U.S. at 249, 106 S.Ct. at 2511, 91 L.Ed.2d at 212). "Credibility determinations will continue to be made by a jury and not the judge." Brill, supra, 142 N.J. at 540, 666 A.2d 146.

On April 22, 1994, Amelia Nash, a 70 year old woman, was walking on the sidewalk adjacent to the residence at 1 Cellar Drive in Edison when she allegedly tripped and fell on a raised portion of the sidewalk where the sidewalk crosses defendant's driveway. The sidewalk appears to be Township property.

The defendant points out that plaintiff's account of her accident is suspect. In her answers to interrogatories, Amelia states that she tripped over some debris and refuse. In her first deposition, she stated she could not recall what made her fall. In her second deposition, she maintained she fell over a raised portion of the sidewalk that intersects with defendant's driveway. Eleanor Burrell, a school crossing guard at the intersection near to where plaintiff fell, testified that when she was dropped off at her crossing guard post that morning, she observed plaintiff sitting in the middle of the street.

Plaintiff submitted evidence to the court that defendant uses the abutting sidewalk as part of her driveway, regularly drives vehicles over the sidewalk to reach the street, and that these actions resulted in damage to the sidewalk. Plaintiff's expert, Theodore Moss, P.E., found that the sidewalk had been repaired. However, based on his review of the evidence, including photographs, he opined that the sidewalk was in poor condition at the time of plaintiff's fall. He stated that badly sunken concrete blocks were found in the central portion of the driveway. This produced a raised ridge face across the sidewalk with variable height up to 1 1/4 inches. Moss further opined that the displacement in the sidewalk was caused by "bedding failure under load (from driveway vehicular traffic)." He noted that such problems occur gradually over time and afford ample opportunity for repair and correction. Moss concluded that the sidewalk presented "a significant public danger" that exposed pedestrians like plaintiff to "unreasonable hazards."

Under traditional New Jersey sidewalk negligence law, a property owner is not responsible for the care or maintenance of an abutting sidewalk, or for the sidewalk's deterioration due to "normal wear and tear." Brown, supra, 111 N.J. at 329, 544 A.2d 842; Stewart, supra, 87 N.J. at 153, 432 A.2d 881; Yanhko, supra, 70 N.J. at 532, 362 A.2d 1; Moskowitz v. Herman, 16 N.J. 223, 108 A.2d 426 (1954). An exception to this rule exists for commercial landowners, holding them responsible for maintaining in reasonably good condition sidewalks that abut their property. Brown, supra, 111 N.J. at 329, 544 A.2d 842; Stewart, supra, 87 N.J. at 153, 432 A.2d 881. Also, where a commercial landowner's "special purpose" renders an abutting sidewalk unsafe, the commercial landowner will be held liable. See Davis v. Pecorino, 69 N.J. 1, 9, 350 A.2d 51 (1975) (involving, in a commercial setting, motor vehicles that drove back and forth over a sidewalk that intersects with a driveway leading into defendant's gas station, and holding that "an abutting landowner or occupier owes a duty of reasonable care to pedestrians lawfully traversing the public way to avoid the creation of, or to eliminate, ameliorate or correct, a dangerous or hazardous condition due to use of the public sidewalk for a special purpose related to his business activity on the property").

Other exceptions apply to both commercial and residential landowners. For example, an abutting landowner is liable for faulty, dangerous sidewalk construction if either the owner or his or her predecessors in title built the sidewalk. Stewart, supra, 87 N.J. at 152, 432 A.2d 881; Ford v. Jersey Central Power & Light Co., 111 N.J.L. 112, 113, 166 A. 490 (E. & A.1933); Mount v. Recka, 35 N.J.Super. 374, 381, 114 A.2d 289 (App.Div.1955). Further, a landowner is liable for negligent, improper repair of an abutting sidewalk. Stewart, supra, 87 N.J. at 152, 432 A.2d 881; Lambe v. Reardon, 69 N.J.Super. 57, 65, 173 A.2d 520 (App.Div.), certif. denied, 36 N.J. 138, 174 A.2d 924 (1961); Orlik v. DeAlmeida, 45 N.J.Super. 403, 406, 133 A.2d 55 (App.Div.1957); Snidman v. Dorfman, 7 N.J.Super. 207, 211, 72 A.2d 795 (1950).

Finally, an abutting landowner will be held liable for "direct use or obstruction of the sidewalk ... in such a manner as to render it unsafe for passersby." Stewart, supra, 87 N.J. at 153, 432 A.2d 881 (emphasis added); Yanhko, supra, 70 N.J. at 532, 362 A.2d 1; Young v. National Bank of New Jersey, 118 N.J.L. 171, 172, 191 A. 848 (E. & A.1937); Rupp v. Burgess, 70 N.J.L. 7, 9-10, 56 A. 166 (Sup.Ct.1903). This last exception is a distinct and separate consideration from the general proposition that a residential landowner is not liable for the deteriorated or dilapidated condition of an abutting sidewalk caused merely by the "elements" or "wear and tear incident to public use." See Stewart, supra, 87 N.J. at 153, 432 A.2d 881; Yanhko, supra, 70 N.J. at 532, 362 A.2d 1; Rose v. Slough, 92 N.J.L. 233, 238, 104 A. 194 (E. & A.1918) (noting that while a landowner may be held liable for damage to an abutting sidewalk resulting from direct use, a residential landowner will not be held liable where an abutting sidewalk "becomes defective because of buckling in extreme hot weather, or becomes depressed by heavy rains, or becomes out of repairs by reason of any other action of the elements, or by the destructive acts of pedestrians").

The dissent mistakenly suggests that the Supreme Court, based on Davis, supra, has already determined that the direct use exception does not apply to a situation where a residential landowner causes damage to an abutting...