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Frey v. Daddio

A-5556-00T3 (N.J. Super. App. Div. 2003) (Unpublished)

SIDEWALKS; LANDOWNER’S LIABILITY—Municipal ordinances requiring property owners to repair abutting sidewalks do not create a tort duty.

A woman was injured when she fell down on an inclined portion of the sidewalk abutting a house. She alleged that her fall was caused by an uplifted or uneven sidewalk slab. The homeowner had lived in the home for quite some time, and had never repaired the sidewalk. The municipality never contacted the homeowner about the condition of the sidewalk. There were never any complaints about the sidewalk. “Absent negligent construction or repair by a landowner or his predecessors, a non-commercial land owner does not owe a duty of care to a pedestrian injured as a result of the condition of the sidewalk abutting the landowner’s property.” On the other hand, a landowner is liable regardless of the nature of the property ownership or its use, if it or its predecessors negligently constructed or repaired the sidewalk. It is also liable if its use of the property rendered the sidewalk unsafe, if it installed a drain, grating or hole in or upon the sidewalk or if it created a dangerous condition in the sidewalk by building upon it. None of those conditions existed and it was undisputed that the abutting property was residential. Nonetheless, the injured pedestrian argued that a municipal ordinance imposed civil liability on landowners for failure to repair an abutting sidewalk. The Court disagreed, pointing out that there was no explicit imposition of civil liability. Instead, the municipality’s ordinance permitted the municipality to impose a lien on an abutting property owner’s land for the cost of repairing a sidewalk. The fact that a homeowner is required to repair a sidewalk is not indicative of an imposition of liability on the homeowner for failure to do so. At one time, no property owners were liable for injuries caused by failure to maintain a sidewalk, but in 1981 the New Jersey Supreme Court began to distinguish between abutting business properties and abutting residential properties. At that time, the Supreme Court “expressly reserved the question whether” a residential owner would have responsibility, but subsequent cases show that the court’s reservation did not lead to the conclusion that “residential” property owners were liable for sidewalk injuries. Further, “it is well-settled that municipal ordinances do not create tort duty.”

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