Personal Injury: Update on Sidewalk Law

By:  Donna Russo, Esq.

I. Condominiums

            In Luchejko v. City of Hoboken, 207 N.J. 191 (2011), the New Jersey Supreme Court held that a condominium association and management company were immune from liability for a slip and fall on the sidewalk abutting a residential condominium building.  On August 12, 2015, the New Jersey Supreme Court decided the issue of liability for falls caused by snow and ice on the condominium’s private sidewalks.  Cuiyan Qian v. Toll Brothers, Inc. (A-95-13).  The Court held:  “Residential public-sidewalk immunity does not apply in the case of a sidewalk privately owned by a common-interest community.  Who owns or controls the sidewalk, not who uses it, is the key distinguishing point between a public and private sidewalk.  Here, the by-laws of the homeowners association spell out the association’s duty to manage and maintain the community’s common areas, including sidewalks.”

The Court also acknowledged the statutory obligation set forth in N.J.S.A. 46: 8B-14a.  This statutory provision obligates the condominium association to exercise  reasonable care in maintaining the common areas. (“The association . . . shall be responsible for . . . [t]he maintenance, repair, replacement, cleaning and sanitation of the common elements.”).

However, the Court made clear that the condominium association can provide in its by-laws that residents cannot sue for injuries caused by slip and falls on the condominium sidewalks.  N.J.S.A. 2A: 62A-13(a) provides that a homeowners association may provide through its by-laws that it “shall not be liable in any civil action brought by or on behalf of a unit owner to respond in damages as a result of bodily injury to the unit owner occurring on the premises of the qualified common interest community.”  However, the statute also provides that the association shall have no immunity for willful, wanton or grossly negligent acts or omissions.  N.J.S.A. 2A: 62A-13(b).

II. Three Family Owner Occupied House

             It is well settled law that multi-family homes not occupied by the family is considered commercial for sidewalk liability claims.  In an unreported decision, Tagliareni v. Walgeens On Washington St. In Hoboken New Jersey, et. als. (A-0200-13T3) decided on August 12, 2015, the Court addressed a defense by the owner residing in one of the units that the rental of the other two

units does not automatically convert the property to commercial for purposes of sidewalk liability.

The plaintiff had fallen on a public sidewalk abutting the three family home and fractured her ankle.

The defendant owner argued that the property should not be considered commercial because between the mortgage and home related expenses, there was no profit from the rents.  Citing Luchejko v. City of Hoboken, supra at 73, the Court stated that, at minimum, the following four factors must be considered to determine if such a property is commercial or residential:

(1) the nature of the ownership of the property, including whether the property is owned for investment or business purposes; (2) the predominant use of the property, including the amount of space occupied by the owner on a steady or temporary basis to determine whether the property is utilized in whole or in substantial part as a place of  residence; (3) whether the property has the capacity to generate income, including a comparison between the carrying costs with the amount of rent charged to determine if the owner is realizing a profit; and (4) any other relevant factor when applying ‘commonly accepted definitions of ‘commercial’ and ‘residential’ property.

The Appellate Division remanded the case to the trial court because although the defendant was not making a profit, an analysis of facts are needed to determine if the expenses are related to the maintenance of the home versus the defendant’s personal expenses.