Plaintiff Tina Waldeier was injured when thrown from her bicycle due to a defect in the sidewalk adjacent to the defendant Piper I Townhouse Condominium buildings. The Condominium Association argued that the condominiums were predominantly residential and, hence, it was not liable for the defects in the public sidewalk. In, Waldeier v. Piper 1 Townhouse Condo. Ass’n, 2017 N.J. Super. Unpub. LEXIS 2914 (App. Div. Nov. 22, 2017), the Appellate Division was asked to determine whether the Association could be liable for the plaintiff’s injury.
The Association consisted of 13 condominium unit owners in the complex. Plaintiff was injured due to a defect in the sidewalk at the southeast corner of 13th Street and Haven Avenue in Ocean City. The Piper I Condominium buildings were adjacent to the sidewalks where the plaintiff’s accident occurred.
New Jersey law is clear that residential landowners whose properties abut a public sidewalk have no liability for an injury caused by a defect in the sidewalk. The defendant Association argued that its condominiums were primarily residential and, hence, it could not be liable for the plaintiff’s injuries. The trial court accepted that argument and granted summary judgment to the Association, dismissing the Complaint.
Upon appeal, the plaintiff argued that the sidewalk where plaintiff fell was a common element of the Condominium complex, the Association is liable to maintain those common elements, and, hence, could be liable for plaintiff’s fall. Further, the Plaintiff disagreed with the trial court’s finding that the condominiums were predominantly residential. If the condominiums were deemed commercial, the Association could be liable as an adjoining property owner to maintain the sidewalk, if it was determined to be a public sidewalk.
The Appellate Division held that the trial court correctly determined that the condominium complex was predominantly residential. In addition to the owner occupied units, other units were occupied during part of the year. Although some of the units may have been used for purposes of vacation and 2 of the units were held for rentals, that did not change the residential character of the units. Moreover, the Master Deed restricted the units to residential use.
As for whether the sidewalk was a common element of the condominiums or a public sidewalk, the Appellate Division found that, indisputably, the sidewalks along 13th Street and Haven Avenue extend well beyond the Condominium property. The Association had no ability to exclude members of the public from these sidewalks. Further, the sidewalks abutting the Association’s property were subject to the control of the municipality. The municipality exercised that control when it cited the unit owners for the defects in the sidewalks.
Although the municipality had an ordinance that required the abutting property owner to maintain the public sidewalk, it is well settled under the law that the adoption of such an ordinance does not impose tort liability on the abutting landowners for defects in the sidewalk. Because the condominiums were predominantly residential in use, and the abutting sidewalks were public sidewalks, the Appellate Division upheld the trial court’s decision to dismiss the Complaint.
