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Aime v. Lobrace

2005 WL 3439925 (N.J. Super. App. Div. 2005) (Unpublished)

SIDEWALKS—The fact that a commercial entity owns a residential property does not change the property’s use from residential to commercial for the purpose of imposing sidewalk liability.

A pedestrian fell on the sidewalk abutting an unoccupied, single family, residential property. The property was owned by a limited liability company and during the entire time of its ownership, “no one occupied or resided at the property.” About a year after the injury, the property was sold for a profit over the original acquisition price. The injured pedestrian contended that because the property owner was “an artificial entity, rather than a natural person, and because it assumed that [the owner] made a profit on the sale, [the injured pedestrian] contend[ed] [the property owner] owed a duty to pedestrians to maintain the sidewalk in good condition.” In general, under New Jersey law, “owners of residential property are not liable for ‘injuries to pedestrians caused by the evident and dangerous deterioration’ of sidewalks ‘abutting their property.’” On the other hand, commercial owners are responsible for the negligent failure to maintain an abutting sidewalk in reasonably good condition. According to the Court, “[t]he key to a determination that a property is commercial is the property’s ‘capacity to generate income.’” It cited a 1995 case that held “that a vacant lot zoned for commercial use and not used in conjunction with a business enterprise is not to be considered commercial property for sidewalk liability purposes.” The Court also cited a 1997 New Jersey Supreme Court case holding that “a mortgagee in possession of vacant residential property is not a commercial landowner for purposes of imposing sidewalk liability.” The lower court held that “the fact that a commercial entity own[ed] the property [did] not change its residential nature… . In fact, in all other documentation it indicates it is residential. It is not occupied by anyone, therefore, it is not used in a commercial sense since it’s not used at all… .” The Appellate Division agreed that for the purposes of imposing sidewalk liability, the property was to be considered as having been used for residential purposes.

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