Stewart v. 104 Wallace Street, Inc.

• Citation: 87 N.J. 146,432 A.2d 881
• Parties: Harold STEWART, Plaintiff-Appellant, v. 104 WALLACE STREET, INC., a corporation of the State of New Jersey, t/a Ernie's Tavern, and Jay-Nan Corporation, a corporation of the State of New Jersey, Defendants-Respondents.
• Decision Date: 22 July 1981
• Court: New Jersey Supreme Court

Page 146

87 N.J. 146

432 A.2d 881

Harold STEWART, Plaintiff-Appellant, v. 104 WALLACE STREET, INC., a corporation of the State of New Jersey, t/a Ernie's Tavern, and Jay-Nan Corporation, a corporation of the State of New Jersey, Defendants-Respondents.

Supreme Court of New Jersey.

Argued March 24, 1981.

Decided July 22, 1981.

Alan Y. Medvin, Newark, for plaintiff-appellant (Horowitz, Bross & Sinins, Newark, attorneys).

Gerald Kaplan, Morristown, for defendant-respondent 104 Wallace Street, Inc., etc. (Lieb, Berlin & Kaplan, Morristown, attorneys).

William J. Hanley, Livingston, for defendant-respondent Jay-Nan Corp., etc. (Ronca, McDonald & Judge, Livingston, attorneys; Dennis M. DiVenuta, Livingston, on the brief).

The opinion of the Court was delivered by

PASHMAN, J.

In this case we are called upon once again to review this State's law of sidewalk negligence. In particular, we must decide whether an abutting commercial landowner is liable for a pedestrian's injuries caused by a dilapidated sidewalk. Most recently, in Yanhko v. Fane, 70 N.J. 528, 362 A.2d 1 (1976), the majority of a divided Court upheld the old rule of nonliability and dismissed plaintiffs' action for failure to state a prima facie case. Today, for the reasons stated below, we overrule Yanhko and hold that a plaintiff has a cause of action against a commercial property owner for injuries sustained on a deteriorated sidewalk abutting that commercial property when that owner negligently fails to maintain the sidewalk in reasonably good condition.

I

In the afternoon of May 30, 1976 plaintiff, Harold Stewart, went to Ernie's Tavern at 158 South Orange Avenue, Newark where he had one glass of beer. Ernie's Tavern was owned by defendant 104 Wallace Street, Inc., and the property on which the tavern was located was owned by defendant Jay-Nan Corporation. ¹

After having the beer, Stewart remained at Ernie's for a time, watching people play pool. Upon leaving the tavern, Stewart walked a short distance from the tavern entrance and then fell on the sidewalk abutting a vacant boarded lot adjacent to Ernie's Tavern. This lot, like the property on which Ernie's was located, was owned by defendant Jay-Nan.

Stewart's fall was allegedly caused by the seriously dilapidated condition of the sidewalk abutting Jay-Nan's lot. ² As a result of the fall, Stewart was apparently seriously injured, and underwent surgery and prolonged hospitalization.

Plaintiff brought an action for damages against defendants, 104 Wallace Street, Inc. and Jay-Nan Corp. Defendant 104 Wallace Street impleaded Public Service Electric & Gas Co. as a third party defendant.

In a pretrial proceeding the trial court permitted the plaintiff to make an offer of proof. Following this, the court dismissed both plaintiff's complaint and the third party action against Public Service based on the controlling rule of law as stated by this Court in Yanhko v. Fane, supra.

We granted plaintiff's request for direct certification to the Superior Court, Law Division, in order to reevaluate the statement of the law in Yanhko. 85 N.J. 463, 427 A.2d 562 (1980). We conclude that the present law of sidewalk liability at least with respect to abutting commercial property owners, is anachronistic and produces harsh and unfair results. Commercial property owners are henceforth liable for injuries on the sidewalks abutting their property that are caused by their negligent failure to maintain the sidewalks in reasonably good condition.

Accordingly, we reverse the judgment dismissing plaintiff's complaint against defendant Jay-Nan Corp. and remand the case for a full trial. The judgment dismissing plaintiff's complaint against the tavern owner, 104 Wallace Street, Inc., is, however, affirmed.

II

Sidewalks are an essential feature of our urban landscapes. Consistent with their function, it has long been the law of this State that "(a) sidewalk is intended primarily for pedestrians" and that "the primary function of the sidewalk (is) the public's right of travel on it." Davis v. Pecorino, 69 N.J. 1, 5, 350 A.2d 51 (1975); accord, Saco v. Hall, 1 N.J. 377, 382, 63 A.2d 887 (1949); West Jersey R.R. Co. v. Camden, Gloucester & Woodbury Ry. Co., 52 N.J.Eq. 31, 36, 29 A. 423 (Ch. 1893); Halsey v. Rapid Transit Street Ry. Co., 47 N.J.Eq. 380, 383, 20 A. 859 (Ch. 1890); see Stevenson, Law of Streets and Sidewalks in New Jersey, 3 Rut.L.Rev. 19, 26-27 (1949) (hereinafter "Stevenson"). As a consequence of this primary right of the public to use the sidewalk,

... any act or obstruction that unnecessarily incommodes or impedes its lawful use by the public is a nuisance. The traveling public has the right to assume that there is no dangerous impediment or pitfall in any part of it. (Saco v. Hall, supra, 1 N.J. at 382, 63 A.2d 887)

Accord, Yanhko v. Fane, supra, 70 N.J. at 534, 362 A.2d 1; Fredericks v. Dover, 125 N.J.L. 288, 290, 15 A.2d 784 (E. & A. 1940); Garvey v. Public Service Co-Ordinated Transport, 115 N.J.L. 280, 284, 179 A. 33 (E. & A. 1935); Durant v. Palmer, 29 N.J.L. 544, 547-48 (E. & A. 1862).

Subject to this public easement, the owner of abutting property retains considerable interest in and rights to use the sidewalk over and above those of the public rights that are especially valuable to an owner of abutting commercial property. Such an owner has a cause of action to prevent obstruction of the public's view of his premises from the sidewalk. See State v. Londrigan, 4 N.J.Misc. 574, 133 A. 702 (Sup.Ct.1926): 2 American Law of Property, § 9.54 at 495 (1952). The owner may also "use the adjacent sidewalk for stoops, areas, shutes, and other domestic and trade conveniences." Weller v. McCormick, 47 N.J.L. 397, 400 (Sup.Ct.1885); see State v. Mayor of Newark, 37 N.J.L. 415, 423 (E. & A. 1874), subject, of course, to the public's paramount easement of unobstructed use, see Christine v. Mut. Grocery Co., 119 N.J.L. 149, 152, 194 A. 625 (E. & A. 1937). With proper regard for the convenience of the public, landowners may "deposit in the street building materials required in the improvement of their abutting property." Friedman v. Snare & Triest Co., 71 N.J.L. 605, 610, 61 A. 401 (E. & A. 1905). In addition, sidewalks provide commercial owners with easy access to their premises and increase the value of their property. Public use of commercial establishments is facilitated by the existence of sidewalks.

Notwithstanding these substantial interests, the right of the public to safe and unimpeded passage along the sidewalk must prevail. This basic principle is reflected in a number of specific rules imposing upon an abutting landowner the duty of maintaining sidewalks in safe condition.

For instance, the abutting landowner is liable for faulty or dangerous construction of a sidewalk if either he or his predecessors in title built the sidewalk. E. g., Ford v. Jersey Central Power & Light Co., 111 N.J.L. 112, 113, 166 A. 490 (E. & A 1933); Braelow v. Klein, 100 N.J.L. 156, 158, 125 A. 103 (E. & A. 1924); Mount v. Recka, 35 N.J.Super. 374, 381, 114 A.2d 289 (App.Div.1955); Stevenson, supra, 3 Rut.L.Rev. at 31-32, 42-43. The owner is also liable for improper or negligent repair of the sidewalk. Lambe v. Reardon, 69 N.J.Super. 57, 65, 173 A.2d 520 (App.Div.1961), certif. den., 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). If the sidewalk is rendered unsafe by the abutting owner's "special use" or his "improper use" of it, the owner will be liable. E. g., Davis v. Pecorino, supra (gas station owner liable for dangerous condition caused by cars driving over snow on sidewalk to enter gas station); Prange v. McLaughlin, 115 N.J.L. 116, 178 A. 782 (E. & A. 1935) (apartment house owner liable for deterioration caused by coal trucks driving onto sidewalk to deliver coal). An abutting owner is also liable for injuries to the public arising from the construction of a drain, a grating or a coal hole on the sidewalk, Young v. Nat'l Bank of New Jersey, 118 N.J.L. 171, 172, 191 A. 848 (E. & A. 1937), or for an "invasion of the public easement for the owner's benefit by the erection and use of devices located over and above the sidewalk" that create "a dangerous condition in the public easement," Saco v. Hall, supra, 1 N.J. at 383, 63 A.2d 887 (factory owner liable for injuries caused when drains on his building deteriorated, causing water to run onto sidewalk and create icy conditions there).

Not only do these rules impose extensive liability on the abutting owner for dangerous conditions in the sidewalk arising during his period of ownership, but the owner "is also liable for defects in the sidewalk in the nature of a nuisance created by the wrongful or negligent act of a predecessor in title, the nuisance being considered as adopted by the taking of a deed with such defect existent." Schwartz v. Howard Savings Institution, 117 N.J.L. 180, 183, 187 A. 171 (E. & A. 1936); Braelow v. Kline, supra, 100 N.J.L. at 158, 125 A. 103; Hartye v. Grand Properties, Inc., 82 N.J.Super. 416, 419, 197 A.2d 880 (App.Div.1964), certif. den., 42 N.J. 500, 201 A.2d 579 (1964).

III

Until today, our courts have not extended the liability of owners of abutting property, commercial or residential, to include injuries to pedestrians caused by the evident and dangerous deterioration or dilapidation of sidewalks because of neglect. Thus, in Yanhko v. Fane, supra, it was held, consistent with prior cases, that

... an abutting owner 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. (70 N.J. at 532, 362 A.2d 1)

Accord, Murray v. Michalak, 58 N.J. 220, 276 A.2d 857 (1971); ...