Ostrowsky v. Jengo

• Decision Date: 25 March 2020
• Docket Number: DOCKET NO. A-4069-18T1
• Parties: JOSEPH OSTROWSKY, Plaintiff-Appellant, v. PAMELA JENGO and BOROUGH OF HASBROUCK HEIGHTS, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

JOSEPH OSTROWSKY, Plaintiff-Appellant, v. PAMELA JENGO and BOROUGH OF HASBROUCK HEIGHTS, Defendants-Respondents.

DOCKET NO. A-4069-18T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Telephonically argued February 25, 2020

March 25, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Fasciale, Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1405-17.

E. Drew Britcher argued the cause for appellant (Britcher Leone, LLC, attorneys; E. Drew Britcher, of counsel; Tyrone Frederick Sergio, on the briefs).

Douglas M. Barnett argued the cause for respondent Pamela Jengo (Gregory P. Helfrich & Associates, attorneys; Douglas M. Barnett, on the brief).

David J. Ruitenberg argued the cause for respondent Borough of Hasbrouck Heights (Murphy McKeon, P.C., attorneys; David J. Ruitenberg, on the brief).

PER CURIAM

In this trip and fall case, plaintiff appeals from an April 8, 2019 order granting summary judgment to defendant Pamela Jengo—a single-family residential homeowner—and defendant Borough of Hasbrouck Heights (the Borough)—the town in which Jengo resided. We affirm as to Jengo, applying settled law pertaining to residential property owners. We reverse as to the Borough, concluding that there are genuine issues of material fact as to whether it had notice of the dangerous condition.

We review the order de novo, applying the same legal standards that govern summary judgment motions. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 349-50 (2016). That is, we consider the factual record, and reasonable inferences that can be drawn from those facts, "in the light most favorable to the non-moving party," and then decide the legal question of whether the moving party is entitled to judgment as a matter of law. IE Test, LLC v. Carroll, 226 N.J. 166, 184 (2016) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)).

I.

We begin by addressing plaintiff's arguments as to Jengo. Plaintiff contends that Jengo—the residential property owner—had a duty to "remedy and repair" a defective public sidewalk in front of her residence because she knew that a dangerous condition existed for approximately thirteen years and did nothing about it. Plaintiff maintains that failing to impose such a duty will allow residential property owners to ignore known-dangerous deterioration on their sidewalks. We apply decades of precedent by the New Jersey Supreme Court and conclude—like the judge—that Jengo owed no duty.

We look at the pertinent facts in the light most favorable to plaintiff. Plaintiff tripped on an elevated and cracked public sidewalk slab (the dangerous condition) located in front of Jengo's single-family residence. Jengo knew about the dangerous condition but did not affirmatively create it. It is undisputed that Jengo did not construct the sidewalk, make any repairs to the sidewalk, or exercise any control over the sidewalk. The area of the accident did not have any plantings, trees, nor shrubs. The dangerous condition pre-existed Jengo's purchase of her home.

To prove a claim of negligence, a plaintiff must demonstrate: "(1) [A] duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages." Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Countyof Essex, 196 N.J. 569, 584 (2008)). A plaintiff bears the burden of proving negligence, see Reichert v. Vegholm, 366 N.J. Super. 209, 213-14 (App. Div. 2004), and must prove that a defendant's unreasonable acts or omissions proximately caused his or her injuries, see Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309-11 (App. Div. 1998). The presence or absence of an enforceable duty is generally a question of law for the court. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997); see also Doe v. XYC Corp., 382 N.J. Super. 122, 140 (App. Div. 2005). As to this last point—the imposition of a duty—the common law on premises liability for residential property owners has been settled for decades.

Prior to 1981, our courts did not distinguish between commercial or residential property owners. That is, commercial and residential property owners in this State, at that time, could not be held liable for injuries occurring on public sidewalks abutting their property, except "for the negligent construction or repair of the sidewalk . . . or for direct use or obstruction of the sidewalk by the owner in such a manner as to render it unsafe for passersby." Yanhko v. Fane, 70 N.J. 528, 532 (1976) (citations omitted). The law changed in 1981.

In Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 149 (1981), the New Jersey Supreme Court modified the law solely as to commercial landowners, holding that such owners could be liable for injuries sustained on sidewalks adjacent to their properties. The Court explicitly limited its holding in Stewart to commercial owners, emphasizing that "[t]he duty to maintain abutting sidewalks that we impose today is confined to owners of commercial property." Id. at 159. The practical impact of that change in the law recognized that a duty existed for commercial property owners but not for residential property owners.

Our premises liability sidewalk jurisprudence has maintained this distinction. The Restatement (Second) of Torts § 363 (Am. Law Inst. 1965) provides the basis for this State's governing legal principles in the area of sidewalk liability. See Deberjeois v. Schneider, 254 N.J. Super. 694, 698-702 (Law Div. 1991), aff'd o.b., 260 N.J. Super. 518 (App. Div. 1992). The judge in Deberjeois explained,

[t]he rule of non-liability for natural conditions of land is premised on the fact that it is unfair to impose liability upon a property owner for hazardous conditions of his [or her] land which he [or she] did nothing to bring about just because he [or she] happens to live there.

[Id. at 702-03.]

Over the years, the Court has deliberately refused to alter the legal distinction between commercial and residential property owners.

For example, in Luchejko v. City of Hoboken, 207 N.J. 191, 206 (2011), the Court observed that "[o]ur decisions consistently reflect that residential property owners stand on different footing than commercial owners who have the ability to spread the cost of the risk through the current activities of the owner." The Court emphasized the importance of adhering to this distinction, stating:

The commercial/residential dichotomy represents a fundamental choice not to impose sidewalk liability on homeowners that was established nearly three decades ago. Stare decisis thus casts a long shadow over these proceedings. We should not lightly break with a line of decisions that has promoted settled expectations on the part of residential property owners.

. . . .

The rationale of Stewart . . . remains sound and there are no changed circumstances such that reevaluation is necessary. Although the sidewalk liability line of cases has contained spirited concurrences and dissents arguing for broader liability, those separate opinions registered simple disagreements with the majorities' point of view and did not foretell difficulties that have come to pass in administering the commercial/residential distinction.

[Id. at 208-09 (citations omitted).]

As we noted in 2013: "(1) [T]he Court has acknowledged repeatedly that residential property owners are generally not liable for sidewalk injuries; (2) the Court has maintained the fundamental notion that commercial property owners are better prepared to spread the risk of loss to innocent third parties than residential homeowners[.]" Grijalba v. Floro, 431 N.J. Super. 57, 66 (App. Div. 2013); see also Lodato v. Evesham Township, 388 N.J. Super. 501, 507 (App. Div. 2006) (holding residential landowners remain protected by common law public sidewalk immunity); Smith v. Young, 300 N.J. Super. 82, 84-85 (App. Div. 1997) (reiterating that commercial landowners are responsible for maintaining sidewalks abutting their property). Residential owners, however, are liable if they—unlike here—negligently build or repair the sidewalk in a manner that causes the sidewalk's dangerous condition. Luchejko, 207 N.J. at 210. These legal principles have remained unchanged—by our Court and Legislature.

Plaintiff urges us to apply the standards set forth in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 54 (Am. Law Inst. 2012).¹ Section 54 of the Third Restatement provides in pertinent part:

(b) For natural conditions on land that pose a risk of physical harm to persons or property not on the land, the possessor of the land

(1) has a duty of reasonable care if the land is commercial; otherwise

(2) has a duty of reasonable care only if the possessor knows of the risk or if the risk is obvious.

See Michael K. Steenson, Minnesota Negligence Law and the Restatement (Third) of Torts: Liability for Physical and Emotional Harms, 37 Wm. Mitchell L. Rev. 1055, 1058-62 (2011) (discussing the Third Restatement and how it differs from the Second Restatement).

Founded in 1923, the American Law Institute (ALI) embarks on law reform projects, known as "Restatements," seeking to clarify areas of the common law. David A. Logan, Article, When The Restatement Is Not A Restatement: The Curious Case Of The "Flagrant Trespasser," 37 Wm. Mitchell L. Rev. 1448, 1448-49 (2011). The Restatements' goal is not only to clarify the law, but also to promote changes "which will tend better to adapt the laws to the needs of life." Id. at 1452 (citation omitted).

The Restatements' reporters occasionally assert positions that lack legal authority and scholarship. Id. at 1457-58 (explaining that the named reporter of section 402A of the Second Restatement...