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Berardi v. Humenek

06-3245 (U.S. Dist. Ct. D. N.J. 2008) (Unpublished)

SIDEWALKS — Absent negligent construction or repair of the abutting sidewalk by the property owner, residential property owners cannot be held liable for defects in an abutting sidewalk.

A woman tripped and fell on a sidewalk. Alleging the sidewalk was defective, she sued the owner of the abutting premises. The owner was a general partnership; however the partnership offered uncontested proof that the actual use of the property was essentially residential. The property was located in a residential neighborhood, no rental permits were ever sought or obtained, no leasing or renting of the property ever occurred, and the property had never been used to generate income. The property was simply used by the general partners and their families as a vacation home. Additionally, it appeared uncontested that prior to the accident the owners never received any complaints about the sidewalk, and never repaired, altered or reconstructed it.

The U.S. District Court recognized that under New Jersey law only commercial property owners, and not residential property owners, have a duty of care to pedestrians to keep adjacent sidewalks in a reasonably safe condition. Absent negligent construction or repair of the abutting sidewalk by the property owner, residential property owners cannot be held liable for defects in an abutting sidewalk. The Court found that the property in question was not commercially used, and the owners did not derive a benefit from the sidewalk abutting the property or generate income from leasing or renting the property. In addition, the property was covered by a residential homeowner’s policy. The Court accepted the property owners’ statement that they had not performed any construction or repair to the sidewalk, thus finding them immune from liability.


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