By James Krupka

Chances are that either you or someone you know has, at some point, been injured due to the condition of a public sidewalk. Injuries caused by raised slabs or the presence of snow and ice or other defects are common. However, in the State of New Jersey, not all cases involving injuries caused by defective or improperly maintained sidewalks are treated equally.

The owner of residential property abutting a public sidewalk is, for the most part, not responsible for sidewalk defects caused by the elements or by wear and tear due to public use. Residential property owners are only liable for the condition of a public sidewalk abutting their property if the defective condition of the sidewalk is the result of negligent construction/repair by the property owner or if the defective condition resulted from activities carried on by the property owner on the property. Essentially, a residential property owner is only liable for an injury caused by the defective condition of a sidewalk when the property owner negligently causes the sidewalk to be dangerous, either by negligently constructing or repairing the sidewalk or negligently removing snow and ice thereby adding a new element of danger other than that caused by the natural elements (for example, plowing snow into piles where it will repeatedly thaw during the day and refreeze at night on the sidewalk).

Commercial property owners, on the other hand, are subject to a higher standard. The law imposes upon a commercial property owner the duty to use “reasonable care” to see to it that the sidewalks abutting their property are reasonably safe for pedestrians. “Reasonable care” requires the commercial property owner to remedy hazardous conditions within a reasonable time after the owner becomes aware of the condition or should have become aware of the condition. This means that a commercial property owner has a duty to make reasonable observations of the property, including the public sidewalk. The commercial property owner is required to make inspections of his/her property with the frequency that a reasonably prudent commercial property owner would under the circumstances of the case.

The difference in the duty imposed on commercial vs. residential property owners has led to many cases where our Courts have had to determine whether a particular property is commercial or residential. For example, is an apartment building residential or commercial? What about a fraternity house? How should owner-occupied two family houses be treated? What about two family houses that are not owner occupied? Our courts have held that where there is both a commercial and residential use of the property, the predominant use will determine the status of the property. As such, our courts have held that a two family home used as an apartment building is commercial in nature, thus imposing a duty on the owner to remove ice from the abutting sidewalk, Hambright v. Yglesias, 200 N.J. Super. 392, 395 (App. Div. 1985); whereas, an owner-occupied three family house in a residential zone with two rental units has been found to be residential property. Borges v. Hamad, 247 N.J. Super. 353 (Law Div. 1990); aff’d 247 N.J. Super. 295 (App. Div. 1990). Under this analysis, a multi-unit apartment complex would clearly be considered commercial. A fraternity house has been deemed to be commercial in nature under this analysis as well. Gilhooly v. Zeta Psi Fraternity, 243 N.J. Super. 201 (Law Div. 1990).

If you have been injured due to the defective condition of a sidewalk, contact the accident lawyers of Ginarte today. Call (888) GINARTE for a free consultation on your case and to see how we can help.