Sidewalks

In August, 2018, while walking on the sidewalk in front of defendants’ home, plaintiff Diane Conway tripped in the area of a raised concrete sidewalk slab.  Plaintiff claimed that she tripped over a “filled in” concrete or cement between two uneven concrete slabs.  The issue in Conway v. Serra, 2022 N.J. Super. Unpub. LEXIS 856
(App. Div. May 20, 2022) was whether the plaintiff was able to prove that the defendant homeowners (Michele Serra and Marisa Serra) created or in any way caused the raised sidewalk hazard at issue and, thus, could be held liable to the plaintiff for her trip and fall.

Plaintiff had estimated that the sidewalk had approximately a 1½ to 2 inches of raised filled in concrete.  After tripping over this filled in concrete, she lost her balance, stumbled towards the left, fell into a bush and landed on grass.

Plaintiff admitted that she had never walked over the subject sidewalk prior to her fall.  She did not know how long the “filled in” concrete existed before her fall, nor who performed the filled in work on the sidewalk.

One month after her accident, she took a photograph of the sidewalk.  At her deposition, she was able to identify the precise location of her fall.  She secured an engineering expert report, who relied on the photograph, and stated that this repair shown on the photograph “created a hazard by allowing a sidewalk repair patch to have a lip or edge raised above the flat surface.”  The expert concluded that the plaintiff’s fall was the direct result of allowing the sidewalk to have a raised lip and not be level with the flat surface.

At her deposition, the plaintiff testified that someone made repairs to the sidewalk in the summer of 2019 because while driving by, she noted an orange cone on the sidewalk and that the sidewalk was leveled off.  However, she did not know who made the repairs, nor what work the unidentified person performed on the sidewalk.

The defendant homeowners moved for summary judgment and made three arguments:

(1) that they were not liable under the rule that residential property owners were not responsible for repairing or maintaining the sidewalk along their property;

(2) that there was no evidence that the homeowners created a hazard on the sidewalk prior to the accident; and

(3) even if plaintiff could prove that the defendants made a repair to the sidewalk, the plaintiff did not prove that the repair created a danger that proximately caused plaintiff’s injuries.

In opposition, the plaintiff provided a certification.  In her certification, she stated that the portion of the sidewalk where she fell was the driveway portion of the sidewalk abutting the defendants’ residence.  She contended that their cars going over the cement created the raised surface.

The motion judge granted the defendants’ summary judgment, dismissing the case.  He agreed with the defendants that the facts and evidence presented failed to show how the defendants contributed to the alleged dangerous condition that caused plaintiff’s fall.  He found that the plaintiff’s argument that the defendants’ use of their driveway contributed to the defect was without merit.

The motion judge also found that the plaintiff’s expert report was a net opinion because the expert failed to identify any factual evidence that defendants created or exacerbated the condition on the sidewalk.  Hence, the opinions in the expert report failed to provide any legitimate basis to deny summary judgment to the defendants.

This summary judgment order was appealed to the Appellate Division. The Court noted the well settled law that residential property owners are not liable for dangerous conditions of a sidewalk that borders their property unless “their actions create an artificial, dangerous condition on an abutting sidewalk.”  The Appellate Division stated that under New Jersey law, residential property owners, unlike commercial property owners, “have no duty to maintain the sidewalks adjacent to their land so long as they do not affirmatively create a hazardous condition.” 

Here, the Appellate Division agreed that there was no genuine issue of material fact as to whether the defendants created or exacerbated the dangerous sidewalk condition, as the record provided no support for such a contention.  The plaintiff was unable to cite to any evidence suggesting that the defendants created or in any way caused the raised sidewalk hazard as issue.  Further, even if the sidewalk condition was caused by driving a motor vehicle back and forth over the point where the driveway intersects with the sidewalk, that would not create liability for a residential property owner. 

Additionally, the Court agreed with the motion judge that the report of plaintiff’s expert constituted an inadmissible net opinion and, thus, it was barred.  The Appellate Division pointed out that the expert report identified no factual support for the contention that defendants repaired the sidewalk and hence created the hazardous condition.  The expert had relied on two photographs taken after the accident to reach his conclusion that defendants created a hazardous sidewalk condition before plaintiff’s fall.  Thus, the Court found that the expert report was based on unfounded speculation and provided no factual base to support its conclusions.

Accordingly, the Appellate Division affirmed the motion judge’s summary judgment order, dismissing the lawsuit.

In an unpublished March 29, 2022 opinion in Blake v. Glavan, 2022 N.J. Super. Unpub. LEXIS 499, the Appellate Division further addressed the issue of sidewalk liability. The Court addressed the issue of the liability of both a homeowner and a municipality for an injury caused by a fall over an uneven public sidewalk.

The case involved a 2 ½ inch raised sidewalk in front of a residential home which Plaintiff Susan Blake fell over.  She sued both the homeowners, Stipe and Carla Glavan, and the Borough of Westwood (hereafter “Borough”). Following discovery, all Defendants filed Motions for Summary Judgment. The Motion Court found that the homeowner defendants owed no duty to Plaintiff to repair the uneven sidewalk. The Appellate Division affirmed this ruling.

The Motion Court concluded regarding Defendant Borough that there was no dangerous condition, the Borough had no actual or constructive knowledge of a dangerous condition, and the Borough did not act “palpably unreasonably,” and thus also granted Summary Judgment to Defendant Borough. However, the Appellate Division held that those matters involve questions of fact, precluding Summary Judgment as to Defendant Borough, and accordingly reversed as to the Borough.

Before the homeowners purchased the house, in February of 2016, an inspector documented regarding the sidewalk in front of the home that “a tripping hazard is present.”  The required “certificate of occupancy,” or “CO,” called for an inspection of the sidewalk by the Borough. The homeowners never did repair the sidewalk, and approximately one year later, while jogging on the sidewalk Plaintiff tripped on a “raised slab.” Following this incident, pursuant to a request by Defendant Borough, the homeowners poured concrete over the uneven sidewalk, presumably in an effort to repair the condition.

The Appellate Division noted that regarding Defendant Borough, Plaintiff must satisfy the requirements of N.J.S.A. 59:4-2, which states in part that

“[a] public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that …:

b. a public entity had actual or constructive notice of the dangerous condition under [S]ection 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.”

A “dangerous condition” means a condition of property that “creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” N.J.S.A. 59:4-1(a).

The Appellate Division observed that

“We have previously defined substantial risk as one neither minor, trivial, nor insignificant. Atalese v. Long Beach Twp., 365 N.J. Super. 1, 5 (App. Div. 2003). ‘However, the defect cannot be viewed in a vacuum. Instead it must be considered together with the anticipated use of the property ….’ Ibid. We have also concluded, in similar circumstances, there was a genuine issue of material fact as to the existence of a dangerous condition concerning an uneven sidewalk. See, e.g., Roman v. City of Plainfield, 388 N.J. Super. 527, 528-30, 536-38 (App. Div. 2006) (reversing where the sidewalk was “two inches higher than the abutting slab”).  ‘Whether property is in a ‘dangerous condition’ is generally a question for the finder of fact.’ Vincitore v. N.J. Sports & Exposition Auth., 169 N.J. 119, 123 (2001). But a judge could determine as a matter of law if a factfinder could not reasonably find the plaintiff established the property was in a dangerous condition. Id. at 124.”

The Appellate Division according held that

“Viewing the evidence in a light most favorable to plaintiff, plaintiff has shown a material disputed fact regarding the existence of a dangerous condition, which must be resolved by the jury. Plaintiff demonstrated this condition existed at the time of the accident and that the Borough itself considered it a tripping hazard after the accident. Thus, a reasonable factfinder could find the sidewalk was in a dangerous condition when plaintiff fell. See id. at 124. And much like in Roman, the two and one-half inch raised sidewalk is a dangerous condition and the judge erred in concluding as a matter of law it was not. See 388 N.J. Super. at 535-37.

Under N.J.S.A. 59:4-3(b), a public entity shall be deemed to have constructive notice of a dangerous condition

“only if the [p]laintiff established that the condition had existed for such a period of time to and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.  ‘[T]he mere ‘[e]xistence of an alleged dangerous condition is not constructive notice of it.’” Polzo v. Cnty. of Essex (Polzo I), 196 N.J. 569, 581 (2008)…  And a plaintiff must show that the public entity had constructive notice of the dangerous condition ‘a sufficient time prior to the injury to have taken measures to protect against’ it.”

In Lodato v. Evesham Twp., 388 N.J. Super. 501, 511-12 (App. Div. 2006), the Court held that a question of fact existed as to the issue of whether a municipality had constructive notice of a raised sidewalk, given that the alleged condition was “open and obvious,” the defective condition reportedly had existed for almost eighteen years, and similar defects were reportedly present throughout the same neighborhood.

Conversely, in Gaskill v. Active Env’t Techs., Inc., 360 N.J. Super. 530, 537 (App. Div. 2003), the Court found no question of fact existed where that Plaintiff, a longtime resident of the neighborhood where the incident occurred, never noticed the defect prior to the same.

Finally, in Maslo v. City of Jersey City, 346 N.J. Super. 346, 349 (App. Div. 2002), the Court held that the case record did not show the public entity had notice even where there was “an observable difference in height” in the sidewalk and the sidewalk is inspected by the public entity’s regular course.

In Blake, the Appellate Division stressed that it was undisputed that the homeowners’ inspector identified the raised sidewalk as a tripping hazard in 2016, and Defendant Borough then performed a separate inspection of the property, which included the sidewalk, before issuing a certificate of occupancy.

The case record established that the defect in the sidewalk existed for at least fifteen months before Plaintiff’s injury. Accordingly, the Court held that Plaintiff established that there was a question of fact whether Defendant Borough had constructive notice of the dangerous condition.

Finally, Plaintiff Blake claimed that Defendant Borough’s failure to require repair of the sidewalk, after a certificate of occupancy inspection, was palpably unreasonable.

In this regard, the Appellate Division observed that

“A plaintiff must not just show that a public entity’s conduct was unreasonable, but it must also show that the conduct was ‘palpably unreasonable.’ … Palpably unreasonable differentiates from ordinary negligence as palpably unreasonable ‘implie[s] a more obvious and manifest breach of duty and imposes a more onerous burden on the plaintiff.’ Ogborne, 197 N.J. at 459 (quoting Kolitch v. Lindehal, 100 N.J. 485, 493 (1985). A public entity’s conduct must be ‘manifest and obvious that no prudent person would approve of its course of action or inaction.’ Ibid. (quoting Kolitch, 100 N.J. at 493). Generally, the palpable unreasonableness of an entity’s conduct is a question for the trier of fact. See Vincitore, 169 N.J. at 130; see also Tymcyszyn v. Columbus Gardens, 422 N.J. Super. 253, 265 (App. Div. 2011) (holding that a jury could find the defendant palpably unreasonable in failing to ensure a sidewalk was free of snow during the time of high-pedestrian traffic). But it may appropriate for a judge to determine, as a matter of law, an entity’s actions are not palpably unreasonable in certain circumstances. See Polzo v. Cnty. of Essex (Polzo II), 209 N.J. 51, 75 n.12 (2012).”

The Blake Court concluded that “There is no question that the Borough believed the condition was dangerous. If that were not the case, the Borough would not have requested (after the accident) that the homeowners make repairs. Here, unlike in Polzo II, it is inappropriate to conclude the Borough’s conduct was not palpably unreasonable as a matter of law.”

Overall, therefore, Blake reaffirms the current state of the law regarding the lack of liability for a residential homeowner and the municipal sidewalk liability under the Tort Claims Act if the Plaintiff is able to prove the elements under N.J.S.A. 59:4-2.