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Gaskill v. Active Environmental Technologies, Inc.

360 N.J. Super. 530, 823 A.2d 878 (App. Div. 2003)

SIDEWALKS—The question of whether a tree grate protruding from the grassy strip adjacent to a sidewalk is an integral part of the sidewalk and on a path intended for the use of pedestrians is one for the finder of fact.

Adjacent to a commercial property was a paved surface from the building to the curb “with no grassy strip between the sidewalk and the street.” The municipality planted trees within the outer edge of the sidewalk and installed grates around the trees. The roots of one of the trees grew and pushed up the grate. A pedestrian tripped and fell on the grate in front of the property. The lower court held that the property owner was not liable because New Jersey law holding commercial property owners liable for sidewalk defects “ha[d] not been extended to grates on sidewalks” and the lower court was “not prepared to extend [the case that imposed sidewalk liability on commercial property owners] to that extent at this point.” Under the seminal sidewalk liability case in New Jersey, the Supreme Court held that “commercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their property and are liable for pedestrians injured as a result of their negligent failure to do so.” New Jersey courts have declined to extend that principle “to impose a duty upon commercial property owners to maintain contiguous lands owned by others simply because the public chooses to use the lands as a means of access to the commercial property.” In prior cases, courts have looked to “the purpose of the object or feature causing the fall, recognizing, for example, ‘whether a curb is deemed part of a sidewalk.’” In general, the test is whether the architectural feature was designed or created for pedestrian use. The injured pedestrian lost this case on a summary judgment motion. The pedestrian contended that the “tree grate [was] designed to be part of the pedestrian walkway, as it is supposed to be level with the sidewalk and allow for drainage like any grate.” The Appellate Division was satisfied that the evidence presented a question as to whether the tree grate was in integral part of the sidewalk and was to be used as a pedestrian walkway. Consequently, it felt that the pedestrian was entitled to her day in court and remanded the matter for determination of the purpose or design of the grate.

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