By John J. Megjugorac, Esq.

Slip and fall accidents are a very common type of case that our law firm handles.  Many slip and fall cases take place on sidewalks.  Injuries can occur because the sidewalk itself is in a state of disrepair or snow and ice may cover the sidewalk.

When a potential client comes to our office to discuss a sidewalk slip and fall accident, the first question our office will ask is where the accident took place.  This allows our office to identify potential defendants as well evaluate the merits of the case.  This is extremely important in New Jersey because the New Jersey Supreme Court has held since 1981 that only commercial landowners have a duty to reasonably maintain the sidewalks abutting their property.  Courts looking at sidewalk liability have often defined the property as either commercial or residential.

That distinction was critically important in a case that our law firm handled last year.  That case Grijalba v. Floro 431 NJ Super 57 (App. Div. 2013), was settled after the Appellate Division agreed with our law firm that the motion judge misapplied the governing law and issued an adverse ruling to our client.

An example of a property that would be clearly classified as a commercial property would be a business like a store or restaurant or a large apartment complex.  An example of a residential property would be an owner-occupied one family house.

The facts of the Grijalba case start out simple enough.  Mr. Grijalba suffered a broken leg when he slipped and fell on an ice-covered sidewalk that abutted the defendants’ property.  The defendant’s property abutting the sidewalk where the plaintiff fell happened to be an owner-occupied two family house that was converted to a three family house when the owner moved from the second floor apartment to the basement apartment.   When the owner did that she then rented out the top two floors while she was living in the basement.   So the issue in the case was whether the defendants had duty or a responsibly to clear ice from the sidewalk. In other words, should the the property should be classified as commercial or residential.

In Grijalba, the property was a hybrid property: it had elements of both a commercial and residential property.  It could be seen as residential because it was owner-occupied.  However, it could also be seen as a commercial property because the predominant use of the property was arguably commercial in that other floors of the house were rented out to non-family members.

When the trial judge heard the legal issues she ruled that the property was residential meaning that the plaintiff could not recover any money because the defendant had no duty to remove the snow or ice from their abutting sidewalk.  We felt strongly that the judge had misapplied the governing law and we appealed.  The Appellate Division agreed with us and reversed the decision of the trial judge.

The Appellate Division opinion helps clarify the commercial/residential distinction by giving guidance to the how lower courts should decide cases with similar facts as Grijalba.   The Appellate Division held that the judge should focus on the following factors to determine if it was residential or commercial.

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.”  Grijalba v. Floro, 431 N.J. Super. 57, 73, 66 A.3d 226, 237 (App. Div. 2013)

The case ultimately ended up settling but because this case is a published decision it will be binding precedent on future New Jersey courts that deals with this issue.